Judicial Branch Key to Issues Impacting Retail

In “Democracy in America,” political theorist Alexis de Tocqueville wrote, “there is hardly a political question in the United States which does not sooner or later turn into a judicial one.” Nearly 200 years later, this statement rings true — maybe now, more than ever. 
 
The political landscape in 2017 remains uncertain but one aspect is clear: a fully functioning judiciary is vital to the health of our democracy. While all eyes may be on the executive and legislative branches of government — specifically during the first 100 days — our judicial branch holds the key to many decisions that impact virtually every economic sector. Retail especially. 
 
As the nation’s second largest private sector employer, the retail industry supports a workforce of over 42 million Americans in thousands of locations nationwide. The breadth of the industry is wide and so are the areas we touch. From commerce and trade to labor and innovation, retail plays a vital role in growing our nation’s economy. 
 
As president of the Retail Litigation Center (RLC), I believe in the importance of educating the courts about the retail ecosystem. The RLC has filed briefs in its name alone, led retail and business coalition briefs, and lent the retail industry’s voice to the amicus briefs of other significant organizations. Collectively, these efforts now total 100 briefs filed.  
 
In its 100th brief, the RLC supported Macy’s petition for certiorari to the U.S. Supreme Court in Macy’s v. NLRB. At issue is whether the National Labor Relations Board (NLRB) properly certified a unit of cosmetics employees in a single store as an appropriate bargaining unit after a majority of the same store’s employees voted against the union’s bid to organize the whole store. In an effort to educate the Court, we explained the importance of the longstanding presumption that the “whole store” is the appropriate bargaining unit in the retail context, as well as the harm that will be caused to retail employees, customers and retail companies if the NLRB’s ruling is allowed to stand.
 
This is just one of the many examples of how court decisions impact the retail industry at large. As we focus on advocating for retail moving forward, it’s important to look back on some of the more pressing cases facing America’s retailers:
 
Kirtsaeng v. Wiley & Sons (U.S. Supreme Court). The RLC led amicus briefs both in support of certiorari and on the merits in this case that considered whether the “first sale doctrine” should apply to goods first sold overseas and then imported into the United States. Failure to hold that the doctrine applied could have subjected retailers to significant litigation for copyright infringement for the $2.3 trillion of goods that retailers import. The Court cited the RLC’s brief in support of its decision.
 
DMA v. Brohl (10th Circuit). The brief explained the significant disadvantages that “brick and mortar” retailers face under the U.S. Supreme Court’s outdated Quill (1992) and Bellas Hess (1967) precedents that today give large online retailers a significant tax advantage over their local retail counterparts. Supreme Court Nominee Judge Gorsuch wrote a concurring opinion in the 10th Circuit’s favorable decision in which he recognized the commercial advantage Quill and Bellas Hess give to online retailers but also noted that these particular precedents seemed designed to “wash away with the tides of time.”
 
Expressions v. Schneiderman (US Supreme Court). In a case challenging the validity of a state law that prohibits merchants from surcharging products for credit card fees, the RLC — joined by three trade associations — filed an amicus brief urging the Court to recognize that, regardless of the validity of the specific statute, merchant communication to consumers about credit card fees is “speech” subject to higher constitutional protection. 
 
Although the Court did not reach the statute itself, Chief Justice Roberts, writing for a unanimous Court stated, “In regulating the communication of prices rather than prices themselves, [the statute] regulates speech.” The decision, thus, sets a high bar for government restrictions on merchant communication to consumers about credit card fees and surcharging. 
 
With a new year comes new legal challenges and opportunities. Retailers deserve representation across all three branches of government – legislative, executive and judicial. Our industry should continue to focus on educating the courts to help them understand the retail community and the issues of greatest importance to it. 
 

Deborah White is the president of the Retail Litigation Center and general counsel of the Retail Industry Leaders Association. 

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