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Reduce Potential Liability for Data Security Breaches by Negotiating Coverage in Payment Processing Agreements

January 13, 2017

Authors

Bryan Cave and David Zetoony

Reduce Potential Liability for Data Security Breaches by Negotiating Coverage in Payment Processing Agreements

January 13, 2017

by: Bryan Cave and David Zetoony

Credit cards are the primary form of payment received by most retailers. In order to process a credit card, a retailer must enter into an agreement with a bank and a payment processor. Payment processing agreements often have significant impacts on a retailer’s financial liability in the event of a data breach. In many cases, the contractual liabilities that flow from a payment processing agreement surpass all other financial liabilities that arise from a data breach, including the cost to investigate an incident, defend litigation, and defend a regulatory investigation.

The following checklist describes common data security related provisions to look for within most payment processing agreements:

  • Incorporation of Payment Brand Rules. Most payment processing agreements incorporate by reference the rules, regulations, and guidelines of the payment brands (American Express, Discovery, MasterCard, and/or Visa). When negotiating a payment processing agreement, it is important to determine whether the obligation to abide
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  • California Extends Prop. 65 Point-of-Sale Warning for BPA for Businesses That Report Food and Beverage Product Information

    January 3, 2017

    Authors

    Bryan Cave and Merrit Jones

    California Extends Prop. 65 Point-of-Sale Warning for BPA for Businesses That Report Food and Beverage Product Information

    January 3, 2017

    by: Bryan Cave and Merrit Jones

    California’s Office of Environmental Health Hazard Assessment (OEHHA) has extended for another year the regulation allowing businesses to provide a Prop. 65 point-of-sale warning for bisphenol A (BPA) in canned and bottled food and beverage products.

    In order to rely on the point-of-sale warning for another year, however, businesses must provide information to OEHHA concerning any such products where BPA has been intentionally added.

    The requested information includes the brand name, product description, FDA product category, and UPC code or other specific information. Where bsiphenol A is no longer used in the product but the product is still available in commerce, the last expiration or “use by” date should be given.  The information can be provided in a form or template on OEHHA’s website by clicking here.

    The regulation allows businesses to rely on the point-of-sale warning through December 30, 2017. After that date, businesses will need to sell

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    Retailers Face False Advertising Cases on Discounts From Original Prices, Rewards Points

    December 22, 2016

    Authors

    Bryan Cave and Merrit Jones

    Retailers Face False Advertising Cases on Discounts From Original Prices, Rewards Points

    December 22, 2016

    by: Bryan Cave and Merrit Jones

    Retailers that advertise sale prices in comparison with regular prices in California should ensure that the products were actually offered for sale at those regular prices within the preceding three months, in order to avoid potential litigation.

    Los Angeles prosecutors have sued four national retailers for allegedly failing to do just that, accusing them of misleading shoppers into believing they got bigger discounts than they actually did by falsely stating the original prices in advertising sales prices on thousands of products.

    The lawsuits assert false advertising and unfair competition based on alleged violation of a state law that prohibits advertising a former price unless it was “the prevailing market price” within three months before the ad runs, unless the ad “exactly and conspicuously” states the date when that price was in effect.  California law also prohibits as a deceptive practice “[m]aking false or misleading statements of

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    NYC Passes Sweeping Freelance Worker Protection Law

    December 16, 2016

    Authors

    Bryan Cave, Sarah Bloom and Jay Warren

    NYC Passes Sweeping Freelance Worker Protection Law

    December 16, 2016

    by: Bryan Cave, Sarah Bloom and Jay Warren

    Retailers who contract with freelance workers in New York City should be aware of landmark legislation just passed to protect the wages of freelance works, including artists. The law takes effect on May 15, 2017.

    The Act, appropriately named “Freelancers Aren’t Free” protects these workers by (1) requiring freelancer contracts to be in writing, (2) requiring timely payment, (3) prohibiting retaliation, and (4) providing specific remedies and damages available to aggrieved freelance workers. The law does not apply to sales representatives, attorneys or licensed medical professionals.

    Writing Requirement: Contracts with freelancers for services of $800 or more (including the amounts for contracts between the same parties in the immediately preceding 120 days) must be in writing. The contract must include the name and address of the hiring party and the freelance worker, an itemization of the services the freelancer will provide and a price schedule for those services, and the

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    New Illinois Leave Laws to Take Effect

    December 16, 2016

    Authors

    Bryan Cave, Christy Phanthavong and Joy Anderson

    New Illinois Leave Laws to Take Effect

    December 16, 2016

    by: Bryan Cave, Christy Phanthavong and Joy Anderson

    Retailers with employees in Illinois should be aware of four new leave laws that may require revisions to leave policies and procedures:

    • Illinois Employee Sick Leave Act: Effective January 1, 2017, this act requires Illinois employers to permit employees to use half of their accrued sick leave under an employer’s existing sick leave policy for absences related to the illness, injury, or medical appointment of certain family members.
    • Illinois Child Bereavement Leave Act: Effective July 29, 2016, this act requires Illinois employers covered by the federal Family and Medical Leave Act (FMLA) to allow employees to take off up to ten work days per year as unpaid bereavement leave following the death of a child (or up to six weeks if the employee experiences the death of more than one child).
    • Chicago Paid Sick Leave Ordinance:  Effective July 1, 2017, this ordinance allows workers in Chicago to earn up
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    Congress Passes Consumer Review Fairness Act of 2016 to Protect Online Reviews

    December 9, 2016

    Authors

    Bryan Cave and John Bush

    Congress Passes Consumer Review Fairness Act of 2016 to Protect Online Reviews

    December 9, 2016

    by: Bryan Cave and John Bush

    New legislation passed by Congress attempts to curb aggressive tactics against the authors of negative online reviews. The legislation bans the practice of contractually prohibiting consumers from posting negative reviews on websites. President Barack Obama has indicated that he will sign the legislation.

    The Consumer Review Fairness Act of 2016 (the “Act”) voids, from inception, clauses in form contracts that:

  • Prohibit or restrict the ability of an individual from providing an online review; or
  • Impose a penalty or fee against an individual for submitting an online review.
  • Such chilling gag clauses had been wielded by various businesses against customers who had written or encouraged negative reviews of those businesses’ products and services through online forums such as Yelp.

    The Act further restricts any claim to ownership of the underlying intellectual property in such reviews except to the extent that a limited license is provided to display the content. Accordingly,

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    Avoid ADA Lawsuits for the Holidays by Ensuring Stores are Accessible

    December 1, 2016

    Authors

    Bryan Cave and Merrit Jones

    Avoid ADA Lawsuits for the Holidays by Ensuring Stores are Accessible

    December 1, 2016

    by: Bryan Cave and Merrit Jones

    In order to help retailers improve access to all customers and reduce potential liability, this is the first in a three-part series offering tips for compliance with the Americans With Disabilities Act (ADA). This week we offer tips to improve access to brick-and-mortar stores and their facilities.

    Title III of the ADA prohibits discrimination against individuals “on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation,” which includes retail stores.

    Allegations concerning the accessibility of parking spaces, entrances and aisles, checkout and sales counters, and restrooms continue to attract the most ADA lawsuits. Detailed federal regulations covering all of these areas appear in the 2010 Standards for Accessible Design (ADA Standards), and state building codes may provide additional requirements. ADA requirements may differ depending on the construction date of your stores, and

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    Retailers Prepare to Meet New Salary and Overtime Requirements

    November 17, 2016

    Authors

    Bryan Cave, Allison Eckstrom and Travis Kearbey

    Retailers Prepare to Meet New Salary and Overtime Requirements

    November 17, 2016

    by: Bryan Cave, Allison Eckstrom and Travis Kearbey

    By now, most retailers and other employers have evaluated the impact, if any, that the new Department of Labor (DOL) regulations will have on their workforce beginning on December 1, 2016, when the minimum salary requirement for exempt status will increase to $913 per week ($47,476, annually). For many retailers, a portion of their workforce will now be classified as non-exempt workers and eligible for daily and/or weekly overtime compensation.   Implementation of the new rules, however, also requires careful consideration of the retailer’s payroll and timekeeping practices to ensure compliance with other state and federal laws that affect non-exempt employees.

    Be mindful of “off the clock” work:

    Reclassification of employees to hourly, non-exempt positions not only changes the way employees are paid, but also requires employees to think differently about how their work activities affect their pay. Employees, who previously were paid a salary regardless of the number of hours worked each pay

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    California Upholds Statewide Plastic Bag Ban

    November 10, 2016

    Authors

    Bryan Cave and Merrit Jones

    California Upholds Statewide Plastic Bag Ban

    November 10, 2016

    by: Bryan Cave and Merrit Jones

    Californians narrowly validated the statewide plastic bag ban previously passed by the state Legislature, while rejecting a proposition that would have required retailers to remit money charged for single-use carry-out bags to an environmental fund.

    Proposition 67 was approved by 52 percent of voters. It continues the statewide ban prohibiting grocery stores and other selected retailers from handing out single-use plastic bags, but allows them to sell recycled paper bags and reusable bags for a minimum of 10 cents.

    The state Legislature approved the ban and the governor signed it into law in 2014, but a referendum forced the issue onto the ballot. The law applies to the following retailers:

    • Full-line, self-service retail stores with gross annual sales of at least $2 million that sell dry groceries, canned goods, or nonfood items, and some perishable items.
    • Pharmacies with at least 10,000 square feet of retail space.
    • Convenience stores,
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    Election Day: Time Off to Vote Requirements

    November 4, 2016

    Authors

    Bryan Cave, Sarah Bloom and Jay Warren

    Election Day: Time Off to Vote Requirements

    November 4, 2016

    by: Bryan Cave, Sarah Bloom and Jay Warren

    Election Day is less than a week away and employees may have begun already requesting time off to go to the polls. The law varies state-by-state for when employers must honor these requests and grant employees voting leave. It is important to know the laws in your state, as certain states can subject the employer to civil or even criminal liability for failing to comply.

    Please click here to view a summary of employers’ obligations to provide employees with time off to vote in the following eight states: Arizona, California, Colorado, Georgia, Illinois, Missouri, New York, and Texas. Each of these states has a law that governs which employees must be given time off, whether advance notice is required, and whether this time must be paid. This list is non-exhaustive and focuses on states where our firm has offices.

    Florida, New Jersey, North Carolina, Pennsylvania, and Washington DC do

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    What to Look for When Buying Cyber Insurance

    October 27, 2016

    Authors

    Bryan Cave and David Zetoony

    What to Look for When Buying Cyber Insurance

    October 27, 2016

    by: Bryan Cave and David Zetoony

    Most retailers know they need insurance to cover risks to their property such as fire or theft, or their risk of liability if someone is injured in the workplace.  As numerous high-profile breaches demonstrate, retailers also need to carry coverage for data breaches.  While many insurance companies offer cyber insurance, not all policies are created equal.

    Why is buying cyber insurance difficult?

  • There is little standardization among competing policies; as a result, it is hard to comparison shop.
  • Policies’ exclusions often swallow coverage; as a result, assessing the value of a policy is difficult unless you have extensive experience with the types of liabilities that arise following data breaches.
  • Policies often cover security but not privacy risks.
  • Items to review when shopping for cyber insurance:

  • Do the sub-limits on coverage match the corresponding risks?
  • Does the policy include sub-retentions (sub-deductibles) that are unlikely to be reached?
  • Does exclusion prevent payment for the largest risks, e.g.,charges
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  • Yelp Cannot Be Held Liable for Negative Review

    October 20, 2016

    Authors

    Bryan Cave and Flora Sarder

    Yelp Cannot Be Held Liable for Negative Review

    October 20, 2016

    by: Bryan Cave and Flora Sarder

    Retailers are familiar with Yelp.com as a ratings website with a star rating system that allows customers to rate products and services they receive, as well as add individual reviews and comments. Positive reviews can generate business for retailers, and negative reviews can be a source of concern.

    The Ninth Circuit Court of Appeals has ruled, however, that Yelp’s multiple-choice star rating system does not make the review site a publisher or provider of allegedly defamatory content that may be subject to liability. In Kimzey v. Yelp! Inc., the Ninth Circuit affirmed dismissal of an action by a small business owner seeking to hold Yelp liable for a one-star rating by a third party, and challenging Yelp’s immunity under Section 230 of the Communications Decency Act of 1996.

    Section 230 Immunizes Interactive Service Providers From Liability

    Under Section 230, a provider of an “interactive computer service” is immune from liability

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    Retailers Seek Perfect Balance Between In-Store, Online and Mobile Customers

    October 13, 2016

    Authors

    Bryan Cave, Carol Osborne and Paula Levitan

    Retailers Seek Perfect Balance Between In-Store, Online and Mobile Customers

    October 13, 2016

    by: Bryan Cave, Carol Osborne and Paula Levitan

    Retailers are increasingly under pressure to evaluate their business models and, in particular, the mix of their in-store, online and mobile offerings. Just as there are few pure-play e-tailers, there are very few retailers solely operating a bricks & mortar strategy because today’s customer wants to access their favorite brands in an omnichannel way: browsing online to get a sense of trends, dropping into a store to check the fit and shopping via mobile for impulse or last minute buys. But how do retailers find balance within the omnichannel world?

    In our experience working with national and international retailers, getting the online and mobile experience right requires critical focus and serious investment in the three Ds: Distribution, Delivery and Data.

    Successful ecommerce platforms require well located (and well managed) distribution centers capable of handling the nearly 24-hour demand profile.

    Careful consideration needs to be given to whether an existing distribution

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    Congress Considers Legislative Solutions to Internet Sales Tax War

    October 6, 2016

    Authors

    Bryan Cave and Charles Lin

    Congress Considers Legislative Solutions to Internet Sales Tax War

    October 6, 2016

    by: Bryan Cave and Charles Lin

    As we reported on September 15,  several states have enacted or proposed laws related to the collection of sales tax from online retailers without a physical presence in those states, as required by United States Supreme Court case Quill v. North Dakota.  South Dakota’s current lawsuit against several internet retailers was specifically brought by the state to force reconsideration of Supreme Court precedent.

    However, there is a small change that Congress may decide the issue before it reaches the Supreme Court, with three bills having been introduced and a fourth pending.

    One of the three bills, cited as the “No Regulation Without Representation Act of 2016“, is more or less a proposal to codify the decision in Quill.  Needless to say, the states who have challenged Quill are highly opposed to this bill.

    The other two bills, the “Marketplace Fairness Act of 2015” and the “Remote

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    How to Respond to Civil Subpoenas and Document Requests That Ask For Personal Information

    September 28, 2016

    Authors

    Bryan Cave and David Zetoony

    How to Respond to Civil Subpoenas and Document Requests That Ask For Personal Information

    September 28, 2016

    by: Bryan Cave and David Zetoony

    Litigants in a civil dispute often use subpoenas, subpoenas duces tecum, and discovery requests to obtain personal information about individuals who may not be present in the litigation. A request for documents and information that include personal information about third parties may conflict with legal obligations imposed upon an organization not to produce information.

    For example, if an organization promises within its privacy policy that

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    Prop. 65 Conference Focuses on Compliance With New Warning and Settlement Regulations

    September 22, 2016

    Authors

    Bryan Cave, Merrit Jones and Tom Lee

    Prop. 65 Conference Focuses on Compliance With New Warning and Settlement Regulations

    September 22, 2016

    by: Bryan Cave, Merrit Jones and Tom Lee

    The Prop. 65 Clearinghouse held its annual conference in San Francisco recently, and the speakers and panelists had a number of recommendations for both retailers and manufacturers following the adoption of Proposition 65’s new warning regulations.

    The New Warning Regulations

    As we reported on September 7th, the Office of Environmental Health Hazard Assessment (OEHHA) has adopted new warning regulations which take effect in two years on August 30, 2018.  Businesses can choose to comply with either the current or new regulations in the interim, but all retailers and manufacturers who sell products in California should review their Prop. 65 compliance protocols to ensure that they will continue to comply.

    The new regulations seek to put the primary responsibility for providing warnings on product manufacturers or suppliers, who must either label their products with any required warnings or provide notice and warning materials to retailers.

    The regulations expressly

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