DEALS

Westwood acquires Trader Joe’s center

BY Al Urbanski

Noting that necessity-based have proven to resistant to the pressures of online retailers, Westwood Co-CEO Randy Banchik announced his company’s acquisition of The Arbors at Mallard Creek in Charlotte. Purchase price was $25.1 million.

“This asset boasts a variety of internet resistant tenants, insulating it from factors such as the rise of online shopping,” Banchik said.

Located in the University City neighborhood, where average household incomes exceed $120,000, the 55,323-sq.-ft. center is anchored by Trader Joe’s and includes tenants Petco, Massage Envy, Hickory Tavern, and Zoe’s Kitchen.

“As one of the primary retail centers in Charlotte with the only Trader Joe’s in a 10-mile radius, the asset faces limited competition and will continue to perform extremely well over time,” said Westwood’s other chief executive, Joe Dykstra.

The center is four miles from the University of North Carolina and is in close proximity to the University Research Park.

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MARKETING/SOCIAL MEDIA

Survey: The most patriotic retail brands are…

BY Marianne Wilson

Levi Straus is the second most patriotic brand in America. And Ralph Lauren isn't far behind.

That's according to the 15th annual Brand Keys survey of iconic American brands, which asked 4,860 consumers, balanced for age and political party affiliation, to evaluate which of 280 brands were most resonant as to ‘patriotism.’ Jeep took the top spot in the survey for the second consecutive year. (For complete listing of the 50 most patriotic brands, which includes several retailers, see end of article.)

"Politics has made itself more emotionally felt this year than ever, particularly when it comes to how consumers look at brands through a patriotic lens," said Robert Passikoff, founder and president of Brand Keys. "One thing marketers need to learn about 21st century brands is that the ones that can make a meaningful emotional connection with consumers always have a strategic advantage over competitors when it comes to the battle for the hearts, minds, and loyalty of consumers. Make that connection and consumers will not only stand up and salute, more importantly they’ll stand up and buy."

Consumers identified the brands listed below as leading the patriotism parade. Bolded names indicate the six new brands that marched into this year’s top 50.

1. Jeep

2. Levi Strauss

3. Disney

4. Coca-Cola

5. Ford

6. Hershey’s / Twitter

7. Ralph Lauren

8. Jack Daniels

9. Sam Adams

10. MSNBC

11. Starbucks

12. Harley Davidson

13. Airbnb

14. GE

15. Fox News

16. McDonald’s

17. Colgate / John Deere

18. Craftsmen Tools

19. AT&T / Coach

20. Gatorade

21. Walmart

22. American Express

23. Tesla

24. KFC / Marlboro

25. L.L. Bean /

26. Coors

27. Kellogg’s

28. Instagram

29. 49ers/Converse /Cowboys/Louisville Slugger /NFL/New Balance/Nike/Patriots MLB/NY Yankees/Wrangler/Wilson Sporting Goods

30. Apple /Amazon/ Facebook / Google

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OPERATIONS

Winn-Dixie Case Puts Spotlight on Website Accessibility/Compliance

A much-anticipated ruling on website accessibility has been issued out of the Southern District of Florida. The ruling in Juan Carlos Gil v. Winn-Dixie Stores (case no. 16-23020-civ-Scola; S.D. FL 2017) requires the attention of businesses across the country that host websites.

To recap, this was a case of first impression. After a two-day non-jury trial, the Honorable Judge Robert Scola determined that Winn Dixie’s website operates as a “gateway” to its physical store locations, and therefore is required to be accessible to individuals with disabilities. The Court determined that “[t]he services offered on Winn-Dixie’s website, such as the online pharmacy management system, the ability to access digital coupons that link automatically to a customer’s rewards card, and the ability to find store locations, are undoubtedly services, privileges, advantages, and accommodations offered by Winn-Dixie’s physical store locations.”

Commentary to the Court’s decision has focused mainly on two portions of the decision: (1) having an inaccessible website violates Title III of the ADA; and (2) a business is required to make its website accessible even though it is a fact that, the Department of Justice has never promulgated enforceable regulations. Instead, DOJ has relied upon the Web Accessibility Initiative (WAI) of the World Wide Web Consortium (W3C) to shape this guidance known as, Web Content Accessibility Guidelines (WCAG).

While this opinion is the first of its kind, the ruling also addresses an important issue: specifically, ADA liability arising from third party links featured on a website. While we agree with commentary to date, we believe this third issue has not received the attention it deserves.

In the Winn-Dixie case, the Court ruled that WCAG 2.0 AA were the guidelines Winn Dixie was required to follow. Conversely, in March, a federal court in California struck down Web accessibility claims where the plaintiff attempted to use WCAG 2.0 as an appropriate standard to make a website accessible.

In Robles v. Domino’s Pizza (No. cv-106599; C.D. Cal 2017) the court held that forcing Domino’s to impose a standard to website accessibility in the absence of regulations “flies in the face of due process.” Winn-Dixie not only holds that WCAG 2.0 is the standard to follow, but also requires website audits reoccur every three months to ensure compliance.

Vendors and Compliance

It is a common practice for businesses to host links on their websites that connect them to partners, vendors, or other third parties. The Court’s ruling this week suggests that even if a business hosts a compliant website, it may be held liable for noncompliance under Title III of the ADA, if it links up to websites that are inaccessible.

The Court in Winn Dixie ruled that “[t]here are 6 different third parties . . . who interface with Winn Dixie’s website so Winn-Dixie needs to make sure that those third parties also make sure that their websites are accessible” and “[t]he Court also finds that the fact that third party vendors operate certain parts of the Winn-Dixie website is not a legal impediment to Winn-Dixie’s obligation to make its website accessible to the disabled. First, many, if not most, of the third party vendors may already be accessible to the disabled and, if not, Winn-Dixie has a legal obligation to require them to be accessible if they choose to operate within the Winn-Dixie website.” This language suggests that an operator or owner of an accessible website may face liability for the noncompliance of vendors that it features through its links.

Advocates may welcome these developments, but businesses should beware. Although this opinion is not binding on other courts, businesses with websites available to the public, may want to consider the following items:

• A Web accessibility plan should be a priority. The Court in the Winn-Dixie case took note that a plan was not in place at Winn Dixie prior to the filing of the lawsuit.

• For companies that have compliant websites, it should be noted that, if they are going to provide a link to another business there should be some effort to confirm the link is to an accessible website.

• Businesses should consider the best practices in the industry, and inquire as to whether their prospective vendor or business partner comply.

• You should also make sure your contracts with your vendors and partners provide provisions to protect your company against website accessibility lawsuits.

This type of litigation is on the rise and will likely have a record year. Until the DOJ issues permanent regulations, there is no end in sight for these types of actions, and businesses need to remain vigilant in their compliance efforts.


Carol Lumpkin and Stephanie Moot are partners, and Shawn Hogue is an associate at K&L Gates’ Miami office, where they counsel and represent clients in connection with the firm’s litigation practice.

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