The Retail Litigation Center
(RLC) released the 2012
Annual Report & 2013 Priorities this week, marking the
organization’s second full year of advocacy in the judicial branch on behalf of
the retail industry.
Last year, the RLC filed amicus
briefs in 12 cases whose decisions could have a significant impact on the
retail industry. The most briefs were filed on labor and employment law
matters, followed closely by class action certification standard cases. Briefs
were filed in a broad cross-section of courts, including the U.S. Supreme
Court, the Fourth Circuit Court of Appeals, a federal district court, two state
supreme courts and the National Labor Relations Board.
In pending labor litigation, Neiman Marcus Group (d/b/a
Bergdorf Goodman) and Local 1102 Retail, Wholesale Department Store Union,
the RLC urged the National Labor Relations Board to review and reconsider a
two-shoe department bargaining unit approved by the Board because such a unit
is inconsistent with the Board’s authorizing statue and unworkable as a matter
The RLC filed a joint brief in Vance v. Ball State University
supporting the the bright line “power to hire/fire” standard used by the 7th
Circuit Court of Appeals to distinguish those employees who are sufficiently
representative of an employer that their actions may impute liability to the
employer in the Title VII context.
The RLC filed several briefs in support of the meaningful class
action certification standards enunciated in Walmart v. Dukes, including
a brief filed before the U.S. Supreme Court in Comcast Corporation, et al.,
v. Behrend, et al., urging the Court to overturn the Third Circuit’s
unnecessarily limited interpretation of the Supreme Court standard. The RLC
participated as an amicus in the landmark Wal-Mart v. Dukes case.
In a joint brief filed in The Standard Fire Insurance Company
v. Knowles, the RLC and amici asked the U.S. Supreme Court to invalidate
lower court decisions allowing the plaintiff’s bar to circumvent the Class
Action Fairness Act (CAFA). That line of cases allows putative class action
representatives to stipulate damages below the $5 million standard in order to
prevent removal to federal court of class actions brought in state court.
“Judicial decisions handed down
by appellate courts and federal agencies affect how every retailer conducts
business. The RLC’s growing engagement in litigation is critical to shaping the
legal landscape for the retail industry,” said Deborah White,
Executive Vice President & General Counsel for RLC. “Our goal is to
develop a true, clear voice for the retail industry.”
In addition, the report includes
the following priorities for 2013 as identified for the organization by its
Board of Directors:
RLC’s 2013 priorities:
- Administrative Law - Areas where agencies exceed the scope of their
statutory authority, especially labor and employment law rules and
- Class Action – Certification Standards - Decisions applying the standard the U.S. Supreme Court
enunciated in Wal-Mart v. Dukes to collective actions and cases to
strengthen the standards for initial class certification.
- Class Action – Retail-Specific Consumer Class Actions -
Class action decisions that
could unjustifiably expand liability for retailers into new areas of law.
- Class Action – Employment Law - Class action decisions that would unfairly expand
standards for employer liability.
- Intellectual Property - Focus on cases that unreasonably undermine the ability
of retailers to source products widely.
- NLRB - Emphasis
on NLRB actions and decisions with a disproportionate impact on retailers
especially related to bargaining unit determinations and property access.
- Patent “Troll” Suits - Cases that might limit or embolden lawsuits brought by
non-practicing entities against end users.
- Privacy/Data Security - Decisions that establish unduly restrictive standards
regarding privacy or data security of information used by retailers.
- Supreme Court of the United States Cases - Potential impacts on retail of any cases in which the
U.S. Supreme Court grants certiorari.
- Retail - Any
other unjust decisions with disproportionately adverse impact on the
view the RCL 2012 Annual Report and 2013 Priorities, visit www.retaillitcenter.org.
The report can also be viewed here.
Retail Litigation Center (RLC), directed by the chief legal officers of the
country's leading retail companies, identifies and engages in legal proceedings
that affect the retail industry. The RLC participates in both state and federal
cases, principally at the appellate level, giving the retail industry an
opportunity to weigh in on important legal issues and highlight for courts the
importance and potential industry-wide consequences of legal issues before