In today’s competitive environment, retailers and brands need to break through the clutter to connect with the consumer. How retailers and brands promote their goods and services has drastically evolved and continues to change every day. The use of social media influencers has skyrocketed over the past few years, and the practice of using computer-generated images and/or robot influencers is becoming more common. Our attorneys work with in-house legal and marketing teams as they plan and execute advertising, marketing and promotional campaigns, navigating the layers of complicated laws and regulations in the United States and abroad, positioning clients to avoid costly and damaging pitfalls. We regularly audit ad copy, marketing materials, websites, software apps and labeling for false advertising, claim substantiation, regulatory compliance, intellectual property infringement and right of privacy and publicity issues. We also draft and negotiate ad agency, co-promotion, influencer, celebrity endorsement, sponsorship and other marketing services agreements. Our attorneys advise clients on how to comply with Federal Trade Commission rules and guidelines as well as on how to avoid consumer, competitor and regulator challenges associated with marketing campaigns.

Segments of the retail industry have been in significant financial distress over the past several years. Many retailers have announced store closings and others have filed for bankruptcy to reorganize, conduct a going-concern sale or liquidate. Unfortunately, distressed businesses often wait until it is too late before contacting a bankruptcy and restructuring professional due to their unfamiliarity with the bankruptcy process or the stigma associated with the “B word.” Contacting a bankruptcy and restructuring professional at the earliest sign of financial distress could mean the difference between surviving, successfully reorganizing, conducting a value-maximizing sale process or outright liquidating. Even those operating in the retail industry who themselves are not facing financial distress can be significantly impacted when their customers, vendors and/or contract counterparties experience financial distress or commence a bankruptcy proceeding. It is important that financially healthy businesses operating in the retail sector know how to minimize the risks presented by bankruptcy and insolvency, as well as how to take advantage of potential opportunities available in the bankruptcy and restructuring context, such as the potential acquisition of physical assets, intellectual property and leasehold interests at liquidation prices. Members of our Bankruptcy & Restructuring group have extensive experience in the retail sector, having represented retailers in reorganization and liquidation proceedings, creditors and official committees of unsecured creditors in retail bankruptcy cases, landlords whose tenants experience financial distress or commence bankruptcy proceedings, purchasers of assets out of bankruptcy, trade creditors with reclamation and similar rights, secured creditors, trustees and receivers.

Consumer protection laws mean high stakes for retail and consumer products companies. Government investigations, class actions and adverse publicity can follow even small legal missteps. Perkins Coie helps companies navigate compliance with consumer protection laws, and our seasoned litigators—who include former enforcement officials and counselors who practice before government agencies and other regulatory organizations—use innovative approaches to address a myriad of consumer issues, including consumer class actions. These include allegations of unfair, deceptive or fraudulent business practices brought by the Federal Trade Commission, state attorneys general and consumers; claims of unlawful advertising, marketing or product promotions brought by consumers and competitors in court and before the National Advertising Division; and charges of similar conduct brought by international enforcement agencies.

Intellectual property (IP) is a core asset for retailers and consumer product companies. Protecting patents, trademarks and other IP assets is mission critical, as are the IP strategies and programs that can keep competitors at bay in jurisdictions worldwide. Our team develops proactive brand protection strategies and aggressively defends these rights in court when disputes arise.

• Trademark & Copyright: We focus on all aspects of domestic and international trademark work, including counseling, trademark clearance, registration, licensing and enforcement. We have deep experience in the areas of domain name disputes, website audits and other internet-related issues. We also assist retail and consumer products clients with advertising review, counseling and dispute management.
• Patent Procurement: Our attorneys focus on procuring patents and providing patent advice to brick-and-mortar retailers as well as e-commerce companies. We also have deep experience procuring patents for manufacturers of consumer products.
• IP Litigation: Our attorneys have represented numerous consumer brands in IP disputes across the country. We have represented companies with a significant retail component in patent, trademark, copyright and unfair competition litigation, as well as companies that manufacture, market and distribute products for sale by traditional retailers.

Our Labor & Employment attorneys regularly counsel some of the largest national retailers on a variety of issues, from day-to-day employment counseling, to strategic planning and advice, to the defense of aggressive class action litigation. Notably, our attorneys have extensive experience advising retailers in the following areas:

• Executive Employment & Separation Agreements: We work closely with our retail clients, large and small, helping to frame executive employments, balancing company side protections with market savvy terms to attract top talent—and negotiating and drafting separation agreements when necessary.
• Wage-and-Hour: We regularly counsel retailers on wage-and-hour fair labor practices and proactively defend our clients when individual wage-and-hour claims or wage-and-hour class actions are filed.
• Workplace Harassment: Retail employers are facing unprecedented challenges related to conduct in the workplace and sexual harassment/sexual assault. Our lawyers work with retailers—either through their in-house lawyers or directly with human resources professionals or other managers—to help navigate these sensitive situations. Should a situation escalate to an internal investigation, our attorneys are also experienced at handling these highly sensitive investigations in a discreet manner.
• Americans with Disabilities Act (ADA): In recent years, retailers have been hit with multiple lawsuits seeking to apply the ADA to their use of a range of core technologies, including point-of-sale devices, websites and mobile applications. Perkins Coie attorneys regularly defend clients in federal and state court actions alleging violations of the ADA and state anti-discrimination laws.

Data and security breaches are increasingly headline news and the current legal climate includes complex and nuanced rules governing the collection, use, storage and disposal of information that vary by jurisdiction and are continually evolving. While these breaches are happening in virtually all industries, significant attention is given to breaches committed against retail and consumer products because they are household names that consumers know, and many state laws require retailers to notify the public of a breach, while not requiring other industries to do the same. Therefore, privacy and data security are top priorities in the industry. Our Privacy & Security attorneys are recognized as being among the best in the nation by Chambers USA. They represent the world’s leading internet companies, brick-and-mortar retailers and emerging online businesses. From data protection and breach preparedness to new requirements under the California Consumer Privacy Act, our attorneys are known for representing leading companies in data protection and privacy.

Retail real estate work has many moving parts, and those parts can differ with every project. Perkins Coie assists retail companies and property owners in realizing and protecting the value of their retail real estate portfolios. We assemble retail real estate counsel teams to precisely match the needs of each client’s project or legal challenge. We advise both large, corporate retail clients as well as emerging retail companies with respect to leasing issues across the country, and our attorneys are often the lead outside real estate counsel for clients with respect to their expanding footprints for retail as well as headquarters and home office leases across the country and internationally. Mindful of the competitive pressures our clients face and sensitive to the long-term relationships that leases create, we focus on timely, efficient and results-oriented counsel. We find ways to bring deals to completion, not to derail them. We work closely with clients’ real estate and operations teams to maximize the performance of client portfolios. In addition, Perkins Coie real estate attorneys have helped several online retail companies navigate their evolving real estate needs as they transition from online to brick-and-mortar sales.

Collecting and paying the right state and local taxes is sometimes a difficult task, and the governments often do not help make it easier. Governments across the country are facing deficits, and many are aggressively trying to collect as much taxes as they can, whether by collecting more existing taxes or imposing new taxes. Multistate businesses must also cope with multiple tax systems—often arcane, complex and inconsistent—that create serious compliance challenges as well as adverse financial consequences. Our attorneys have represented some of the most significant e-commerce and brick-and-mortar retailers in a variety of matters, including retail sales tax collection issues (discounts, coupons, loyalty programs, bad debts, nonresident exemptions, internet sales, nexus and taxability); sales tax on consumables and construction activities; special taxes on liquor, soda and plastic bags; and property tax disputes for big-box retailers and mall owners.

The compliance environment for retailers and consumer products companies has rapidly evolved. Not long ago, many viewed ensuring a supply chain free from the taint of “forced labor”—an umbrella term that includes trafficked, child, slave and indentured labor—as primarily a public relations/marketing concern. American and European retailers and manufacturers were not expected to control what went on in factories in China, India, Brazil, Vietnam or other distant locations.

Today, companies are held to a higher standard and are expected to police their supply chains like never before, regardless of how difficult this may be. A company’s supply chain is now measured based on the impact that it is making in promoting sustainability, human rights, fair labor practices and anti-corruption policies. Our Supply Chain Compliance and Corporate Social Responsibility team supports retail and consumer products businesses in these efforts. Since establishing a first-of-its-kind practice among Am Law 100 firms, we have helped companies address virtually every type of compliance issue. We have conducted risk assessments, designed and revised dozens of compliance programs, and conducted extensive U.S.-based and transnational supply chain investigations. Our team, which has quite literally “written the book” on this topic, includes former officials from the Department of State, the Department of Justice, the Securities and Exchange Commission and state attorneys’ offices, as well as former in-house counsel with a deep understanding of the concerns keeping compliance counsel up at night.