2014

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Dear Friends of the Retail Industry:
Now in its fourth year, I am pleased to report that 2014 was another good year for the Retail Litigation Center as it continued its mission to serve as the voice of the retail industry in the judicial branch. The RLC matched the number of quality briefs filed in 2013, gained additional retail and law firm members, and increased the Board of Directors from ten to eleven. In 2014, we concentrated our briefs on labor and employment issues with a further focus on the Equal Employment
Opportunity Commission’s (EEOC’s) interpretation of the law related to the agency’s enforcement initiatives. We invite you to read about the RLC and its accomplishments and we look forward to our continuing representation of the retail industry in 2015.
Sincerely,
Deborah White
President
The Retail Litigation Center was formed to provide courts with retail industry perspectives on significant legal issues, and highlight the potential industry-wide consequences of legal principles that may be determined in pending cases.
The Retail Litigation Center co-hosts the annual
Retail Law Conference with the Retail Industry
Leaders Association (RILA). The Retail Law
Conference is the only educational event dedicated to the retail industry's corporate legal community, providing tailored education and opportunities to meet the leading lawyers in the industry.
The members of the Retail Litigation Center meet annually so that the retail general counsel and law firm experts can share their views of cutting edge litigation issues that are impacting the retail industry.
The Retail Litigation Center is a 501(c)(6) membership association. Membership is open to all retailers, as well as to select law firms. Retail members help us give voice to the retail industry in legal proceedings. For additional membership information, please contact Cassandra Horton at
Cassandra.horton@rila.org
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Board of Directors . . . . . . . . . . . . . . . . . . . . 4
Litigation by the Numbers . . . . . . . . . . . . .5
Litigation Overview . . . . . . . . . . . . . . . . . . . 6
Membership . . . . . . . . . . . . . . . . . . . . . . . . . . 9
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The Retail Litigation Center is directed by eleven chief legal officers of leading retail companies.
Gaither Keener, Jr. (retiring 2015)
Executive Vice President, Chief Legal Officer,
Chief Compliance Officer & Secretary
Lowe’s Companies, Inc.
Janet Dhillon
Executive Vice President, General Counsel &
Secretary
J.C. Penney Company, Inc.
David Goldston (Chair, 2015)
Senior Vice President, General Counsel &
Secretary
Jo-Ann Stores, Inc.
Michael Veitenheimer
Senior Vice President, General Counsel &
Secretary
The Michaels Companies, Inc.
Deborah White
Executive Vice President & General Counsel
Retail Industry Leaders Association
S
Jason Schwartz
Partner
Gibson, Dunn & Crutcher, LLP
Timothy Baer (Vice Chair, 2015)
Executive Vice President, General Counsel &
Secretary
Target Corporation
Rankin Gasaway
Senior Vice President, General Counsel &
Secretary
7-Eleven, Inc.
Roberta Lang
General Counsel & Global Vice President,
Legal Affairs
Whole Foods Market, Inc.
Samuel Reeves (Vice Chair, 2015)
Senior Vice President & General Counsel,
Wal-Mart US
Wal-Mart Stores, Inc.
Teresa Roseborough
Executive Vice President, General Counsel &
Corporate Secretary
The Home Depot, Inc.
Thomas Sabatino, Jr. (thru Jan. 2015)
Executive Vice President, General Counsel &
Corporate Secretary
Walgreen Co.
Rhonda Taylor
Senior Vice President & General Counsel
Dollar General Corporation
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In 2014, the Retail Litigation Center filed 20 amicus briefs in 19 cases on issues critical to the retail industry, such as, arbitration agreements, administrative law, class action certification standards, Equal Employment Opportunity
Commission enforcement, and National Labor Relations Board policies on employee use of employer email for union organizing purposes and the standard for joint employer liability. Five of the cases in which we filed addressed California legal issues.
In 2013, the U.S. Court of Appeals for the Ninth Circuit ruled that the time employees spent waiting for security checks was compensable under the Fair Labor Standards Act. After the Ninth Circuit denied its petition for rehearing en banc , the employer asked the U.S. Supreme Court to consider the case. The RLC filed a brief (joined by several other major business associations) with the Court in support of granting certiorari explaining the considerable impact that the Ninth
Circuit’s decision would have on employers in general and retailers in particular if the Court failed to provide certainty in this area. The Court granted c ertiorari , and the RLC filed a brief on the merits (again joined by major business associations) in support of the employer, underscoring the long line of cases upon which employers have relied and the practical effects on employers that the Ninth Circuit’s decision would have.
Decision :
On December 8, 2014, the U.S. Supreme Court unanimously held that time spent by employees waiting to undergo security screening is not compensable under the Fair Labor Standards Act.
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LABOR/EMPLOYMENT
Integrity Staffing v. Busk (U.S. Supreme Court) (see pg. 5)
Mach Mining v. EEOC (U.S. Supreme Court)
The RLC filed a brief urging the U.S. Supreme Court to grant certiorari and reverse the 7th Circuit's finding that the Equal Employment Opportunity Commission's statutory duty to conciliate is not subject to judicial review. Statutory history demonstrates that the EEOC compliance with its statutory duty is well within the purview of courts to review. The Court granted certiorari in June 2014 . Joined by several major business associations, the RLC also filed a brief on the merits in
September 2014.
Status: Oral Argument: January 2015
Sonic-Calabasas, Inc. v. Moreno (U.S. Supreme Court)
The RLC joined others in a brief asking the U.S.
Supreme Court to grant review of and reverse the
California Supreme Court's decision that pre-arbitration proceedings waivers can be considered when assessing the unconscionability of arbitration agreements.
Decision: The petition for certiorari was denied.
Kilby v. CVS Pharmacy, Inc. ( Supreme Court of
California)
The RLC filed a retail-only brief urging the California
Supreme Court to recognize that retail sales associates must stand in order to perform the full range of important duties of the job. The RLC asked the Court to use a holistic approach that properly defers to the employer’s business judgment in determining whether a job reasonably permits the use of seats.
Status: Pending
EEOC v. Sterling Jewelers (U.S. Court of Appeals for the Second Circuit)
The RLC joined a brief asking the U.S. Court of Appeals for the Second Circuit to affirm the lower court's dismissal of the EEOC's nationwide pattern or practice sex discrimination suit against the employer because the agency failed to conduct its mandatory pre-suit investigation in a manner that was consistent with the
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EEOC follows the statutory rules set by Congress before it can bring a lawsuit against employers.
Status: Pending
EEOC v. Freeman ( U.S. Court of Appeals for the
Fourth Circuit)
The RLC joined a brief to the U.S. Court of Appeals for the Fourth Circuit in support of the employer asking the appellate court to affirm the district court’s decision that, contrary to the Equal Employment
Opportunity Commission’s allegations in the case, the mere use of criminal background and credit checks is not a violation of Title VII, but instead depends on the specific information collected and how that information is used. This issue is a centerpiece of the
EEOC’s “systemic enforcement” initiatives.
Status: Pending
Sakkab v. Luxottica Retail North America ; Sierra v.
Oakley; Hopkins v. BCI Coca-Cola (U.S. Court of
Appeals for the Ninth Circuit)
The RLC joined three briefs in nearly identical cases asking the Ninth Circuit to affirm the decisions below that the Federal Arbitration Act preempts California courts from prohibiting arbitration of Private Attorney
General Act claims and allows employers to require that such actions be settled on an individual, rather than a class, basis. The enforcement of arbitration agreements allows all parties to quickly resolve disputes in a manner that is less adversarial than litigation. Maintaining the ability of employers to use arbitration agreements in California is important for retailers who rely on these agreements.
Status: Pending
EEOC v. CVS ( U.S. District Court of Northern Illinois)
The RLC filed a brief with the U.S. District Court of
Northern Illinois in support of CVS's motion to dismiss in a case where the Equal Employment Opportunity
Commission sued the employer alleging that its separation agreement violated Title VII. The brief argues that CVS's separation agreement is indistinguishable from the type of agreement that retailers use industry-wide, benefits both the

employer and the employee, and is routinely approved by federal courts.
Decision: The district court granted CVS’s motion to dismiss and cited the RLC’s brief in its opinion.
Browning-Ferris Industries, Inc. and Leadpoint
Business Services ( National Labor Relations Board )
The RLC filed an amicus brief urging the National Labor
Relations Board to adhere to its existing standard for determining joint-employer status under the National
Labor Relations Act. The current direct-control standard is consistent, predictable, and provides all stakeholders with clear expectations. The NLRB has signaled its intent to lower the standard, which will put more employers who use contractors at risk of union organizing campaigns.
Status: Pending
Purple Communications, Inc. and Communications
Workers of America, AFL-CIO ( National Labor
Relations Board)
The National Labor Relations Board (NLRB) has correctly and consistently held that employees do not have a statutory right to use their employer’s email systems for union organizing purposes. The NLRB has signaled its intention to reverse this standard. The RLC filed a brief explaining the impact that reversal would have on retailers. Our brief expressed particular concern that many retail employees do not have access to email in their positions (e.g. sales associates in a store).
Decision: The Board held that employee use of email for statutorily protected communications on nonworking time must be permitted by employers who have chosen to give employees access to their email systems. However, the decision only applies to employees who have already been granted access to the employer's email system in the course of their work and does not require employers to provide such access.
Further, an employer may justify a total ban on nonwork use of email, including Section 7 use on nonworking time, by demonstrating that special circumstances make the ban necessary.
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CLASS ACTION STANDARDS
Family Dollar v. Scott, et al. ( U.S. Supreme Court)
The RLC filed a brief with the U.S. Supreme Court in support of the employer in Family Dollar v. Scott . The brief asked the Court to clarify when a federal court can use pendent appellate jurisdiction and to reinforce that lower courts should follow the mandates of
Wal-Mart v. Dukes , particularly with respect to commonality, when certifying a class.
Decision: The petition for certiorari was denied.
Apple Inc. v. Felczer ( Supreme Court of California)
The RLC submitted a retail-only letter brief asking the
California Supreme Court to grant the employer’s petition for review on the appropriate standards for class action certification in the California wage and hour context.
Status: Pending
Hall v. Rite Aid Corp. ( Supreme Court of California)
The RLC joined a letter brief asking the California
Supreme Court to grant the employer’s petition for review of class certification standards regarding commonality in the “suitable seating” context.
Decision: The petition was denied.
INTELLECTUAL PROPERTY
Alice v. CLS Bank International (U.S. Supreme Court)
The RLC joined other retailers in filing a brief with the
U.S. Supreme Court asking the Court to adopt a threshold test for patentability under Section 101 that computer-implementation cannot create a patentable subject matter. This threshold test will reduce the costs to retailers to resolve “patent troll” lawsuits.
Decision: In keeping with the ideas expressed in our brief, the Court held that because the claims were drawn to a patent-ineligible abstract idea, they are not patent eligible under Section 101.

OTHER
Dart Cherokee v. Owens (U.S. Supreme Court)
The RLC joined other associations in a brief urging the
U.S. Supreme Court to reverse the decision below and restore the proper standard to allow defendants sued in state court to remove their cases to federal court under the Class Action Fairness Act (CAFA). The plaintiffs had alleged and the circuit court had agreed that an evidentiary hearing was necessary.
Decision : In a 5-4 decision, the Court agreed that a defendant’s notice of removal need only include a plausible allegation that the amount in controversy exceeds the jurisdictional threshold; the notice need not contain evidentiary submissions.
NACS v. Federal Reserve System (U.S. Supreme
Court)
The RLC submitted a brief asking the U.S. Supreme
Court to grant certiorari and reverse the D.C. Circuit’s judgment upholding the Federal Reserve's regulation on debit interchange fees. The Federal Reserve improperly interpreted the Durbin Amendment when it allowed banks to include their fixed costs in the fees that are charged to retailers for debit transactions.
Decision: The U.S. Supreme Court denied the petition for certiorari. (January 2015)
Perez v. Mortgage Bankers Association & Nickols v.
Mortgage Bankers Association (U.S. Supreme Court )
The RLC joined a brief to the U.S. Supreme Court on the merits and in support of the employer in the companion cases of Perez v. Mortgage Bankers
Association and Nickols v. Mortgage Bankers
Association . The brief asks the Court to affirm the lower court’s holding that the Administrative Procedure Act
(APA) requires Federal agencies to provide an opportunity for notice and comment before amending certain types of guidance documents. Transparency in the regulatory process promotes predictability and allows retailers to inform Federal agencies of the practical implications of administrative standards prior to enforcement.
Status: Oral Argument: January 2015
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In 2014, the RLC welcomed two new retail and three new law firm members. Our members help shape our agenda and identify cases in which we participate. Law firm members are invited to meet with our Board of Directors and the
General Counsel of our retail members at the annual meeting. Below are the RLC’s retail and law firm members.
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