Retail & E-Commerce

Offering Unrivaled Excellence

Our Retail & E-Commerce attorneys have decades of experience defending retailers in high-stakes litigation, advising on new regulations, anticipating exposure, identifying opportunities and positioning our clients to compete successfully in the global, digital-first marketplace. Recognizing that each case comes with its own distinct challenges, we proactively assess the risks based on each client’s specific circumstances and goals. Then, we strategize to determine the best course of action, whether that’s a motion to dismiss, aggressive litigation or an innovative “out-of-the-box” solution.

Clients ranging from Fortune 500 brands and luxury retailers to new and emerging internet sellers, iconic brick-and-mortar stores, hospitality venues and manufacturers all rely on our diverse team to help them build and protect their brands and attain market dominance. Deeply immersed in the world of retail law, we follow every challenge and every case impacting the industry, offering invaluable risk avoidance counsel and helping our clients navigate the dynamic retail landscape and excel in an era of rapid transformation.

Whether aggressively litigating a case or providing savvy counsel, we collaborate with lawyers across our firm to provide clients with bespoke solutions and “best-in-class” representation. From bet-the-company commercial litigation to structuring joint ventures, counseling start-ups or managing a corporate restructuring, the attorneys in our Retail & E-Commerce Group deliver a comprehensive suite of legal and business services so our clients can focus on what matters: running their businesses.

Unparalleled Retail Class Action and Commercial Litigation Defense

We have defended more than 150 consumer class actions brought under a broad array of consumer statutes in cases involving claims of consumer fraud, deceptive pricing, false advertising, federal and state privacy law and automatic renewal law violations, among others. Our team also has extensive experience in litigating cases involving the ADA, “Made in the USA” claims, return policies, gift card laws, call recording laws and alleged violations of California's Proposition 65. Well-versed in California law and its various regulations, we are often retained as California defense counsel.

We are formidable courtroom opponents. We know what will work and what won't in litigation and in supporting our clients' business goals. From gathering information and crafting arguments that portray a client's business advantageously to formulating winning strategies and presenting and arguing cases, we understand the nuances of how a case will play out. The result is more experience-driven, cost-effective, dependable advice based on a clear understanding of the industry and the applicable laws, which often leads to solutions that sidestep court altogether or achieve courtroom wins.

Staying Ahead of the Curve

Many of the cases we handle involve nuanced technological issues, including data cooperatives, session replay, chatbots and social media pixel technology. We are well-versed in all of these and other technologies, as well as the legal and regulatory landscape, and we can hit the ground running when an issue arises.

At the same time, because we work with so many retailers, we are often the first to know about new issues hitting the retail industry. This allows us to warn other clients once we learn about litigation trends or other risks and help our clients proactively implement protective measures.

OUR SERVICES

Clients turn to us for defense and counsel in the following areas: 

• ADA Compliance
  
  • Our team has successfully briefed numerous motions to dismiss, including innovative motions arguing that merely accessing a website in a given jurisdiction does not establish personal jurisdiction. Attorneys in our Retail & E-Commerce practice are adept at determining which arguments are effective in various jurisdictions and identifying when it is advantageous for clients to reach a nuisance resolution rather than risk a subsequent lawsuit. Our proactive approach often leads plaintiffs' counsel to reconsider the viability of challenging our motions, resulting in highly favorable resolutions for our clients.
• Class Action Defense
  • With decades of experience in class action defense, Benesch litigators have defeated cases at the trial court level and on appeal for global companies, national brands, local businesses and startups across the nation. 
• Commercial Litigation
  • Benesch’s proactive approach positions attorneys as business advisors, supporting every stage of a company to reduce exposure and risk. When litigation is necessary, our attorneys draw on decades of experience at the negotiating table and in the courtroom to secure favorable outcomes for our clients while maintaining key relationships within the industry.
• Consumer Products
  • Where regulation was once almost exclusively environmental in nature, many states have passed—or are considering—legislation banning polyfluoroalkyl substances (PFAS) in an array of textiles, packaging, food products and more. The result is enormous pressure for retailers to quickly assess not only their products, but their supply chains, marketing materials and reporting mechanisms, and make critical adjustments. Our attorneys are adept at helping clients understand current and pending legislation, perform operational audits and develop strategies to achieve compliance.
• Corporate Transactions
  • Our transactional attorneys are a wealth of knowledge, advising clients through the formation of strategic business partnerships including the negotiation and preparation of service contracts, distribution agreements, licensing matters, business disputes, joint ventures and more. When the company is on the line, Benesch attorneys have the combined legal and business insights to help their clients navigate high-stakes negotiations and litigation, if needed.
• Intellectual Property
  
  • Benesch’s Retail & E-Commerce Group includes attorneys from our Intellectual Property Practice Group who regularly engage in the prosecution and defense of IP claims for clients of various sizes and industries. Our attorneys are dedicated to helping clients protect and optimize their intellectual capital by securing trademark and copyright protections and intellectual property rights. When necessary, they also prosecute infringement actions and provide counsel with respect to IP filings.
• Labor & Employment
  • Benesch’s Labor & Employment attorneys routinely support our national retail clients with a full range of labor and employment services, including executive recruiting, diversity and inclusion commitments, employee retention and engagement, workplace policies and benefits, workforce reduction efforts and more. Our litigation team also helps company leadership in assessing and mitigating workplace risks and provides counsel through crises that may arise in the workplace.
• Marketing, Advertising & Promotions
  • Creative marketing and smart, engaging promotions are critical in our hyperconnected world. But these activities can carry significant legal risks, making a thorough understanding of local, state and national regulations crucial. We regularly advise clients on matters such as labeling, marketing, advertising and promotional campaigns, including phone call and text messaging laws, sweepstakes rules, gift card restrictions, daily-deal sales issues and use of customer data collected through marketing efforts. Our clients turn to Benesch to ensure their marketing and advertising activities are fair, compliant and impactful.
• Privacy & Cybersecurity
  
  • Benesch’s team includes Data Privacy & Security attorneys who understand the delicate balance of implementing safeguards against increasingly sophisticated cybersecurity threats while appropriately leveraging customer data to inform strategic business decisions. We confidently advise clients on a wide range of security and privacy matters, helping them design and implement data-management protocols, review existing practices and respond with urgency to breaches and lawsuits that arise. Recognizing the need for immediate action when a security breach occurs, Benesch offers clients access to a 24-hour, 7-day-a-week data breach hotline, providing support and assistance when they need it most.
• Private Equity
  • Our attorneys have decades of experience providing services to private equity clients across the retail, hospitality and consumer products spaces, including forming a venture capital fund focused on early-stage retail investments, defending portfolio companies through high-stakes litigation and assisting our private equity clients with the identification, purchase and/or sale of new investments for their portfolios.
• Product Liability
  • Benesch’s attorneys bring significant experience at the intersection of law, regulatory compliance and business operations, helping clients identify and overcome areas of weakness within their operations and supply chains. When necessary, we leverage decades of experience to support our clients through regulatory interventions and investigations, settlement negotiations and litigation.
• Public Enforcement Matters
• Real Estate & Development
  • Our attorneys have significant experience guiding clients through all phases of the development and launch of their brick-and-mortar facilities, from boutiques and retail storefronts to distribution centers and industrial complexes. Our team guides clients through the process of identifying properties, securing investment capital, acquiring and purchasing land, negotiating franchise agreements, developing the property and navigating any land or property use issues that may arise. In the event it becomes necessary to close a property, we help clients maneuver that, too.
• Restructuring & Insolvency
  • During periods of financial and economic uncertainty, brands need strategic counsel to maximize their value and position themselves for future success. Our team of attorneys provides transactional and litigation support for clients navigating corporate and financial restructuring and insolvency. We work closely with clients to understand their motivations and future objectives, tailoring favorable solutions for their specific circumstances.
• Transportation & Logistics
  
  • Benesch’s nationally-recognized Transportation & Logistics Practice Group works with clients in the retail and consumer products sectors to help them optimize their supply chains in connection with transportation, logistics and warehousing. Representative clients run the gamut from some of the world’s largest big-box retailers to middle-market and emerging retailers in various verticals (including, but not limited to, clothing/apparel, hardware, home and garden, food and pharmaceuticals, automotive and fuel, and many others). Our practical, operations-oriented team provides our clients with multidisciplinary solutions—drafting and negotiating services contracts, developing metrics that properly incentivize service providers, designing private fleets, resolving business disputes, assisting with international trade compliance, providing regulatory advice, helping with in-transit freight finance and generally providing day-to-day business advice and counsel.

Beyond Litigation – Proactive Counsel

Beyond litigation defense, a significant part of our practice centers on advising retailers on the myriad issues they encounter in building their brands. Not only are we fluent in applicable laws and regulations, but our advising practice incorporates our deep understanding of the retail industry (including trends and business interests) with our litigation proficiency so that our advice is always actionable and pragmatic. 

For these reasons, retailers often invite us to meet with their business teams to collaborate on solutions that work best for their companies. At the same time, many clients use us as outside marketing counsel and email us “one-off” questions on a daily basis; we are often able to answer these questions without any additional research, given how frequently we are advising retailers on the same issues.

We identify risks, advise on regulations and help clients leverage opportunities and optimize their position so they can compete successfully in a global, digital-first marketplace.  

A Preeminent Practice

Fierce advocates, both in and out of court, our seasoned trial and appellate lawyers have obtained numerous wins that have been recognized among the top defense verdicts of the year. Named a Law360 “MVP in Retail & E-Commerce” for four consecutive years, one of our practice leaders is the only lawyer serving on the Board of the California Retailers Association. A fellow partner is a Certified Information Privacy Professional, United States (CIPP/US) by the International Association of Privacy Professionals (IAPP). Frequently called upon by trade organizations, including the National Retail Federation and Retail Industry Leaders Association, for thought leadership, our Retail Practice lawyers are contributors to trade and legal publications on various industry issues and trends and also authored the definitive book on retail law, which is updated annually.

Representative Matters

• Secured dismissal of a consumer class action after using metadata on the as-filed complaint to prove that the complaint was finalized within days of the purchase at issue, and weeks before the date that the other side told the court it was prepared.
• Defended the largest cosmetics company in North America in four putative class actions in both federal and state court concerning advertising representations made about its branded cosmetic products.
• Defeated class certification in two highly publicized cases alleging that the law schools violated consumer protection statutes by inflating post-graduation employment statistics.
• Defended dozens of retailers against claims brought under the federal Wiretap Act and California’s Invasion of Privacy Act (CIPA) concerning the alleged recording of chat conversations, use of session replay technology, and use of the Facebook Pixel.
• Defended a dozen putative class actions alleging that the sale of customer information to data cooperatives and list brokers, who in turn sold their information to telemarketers and other advertisers without notice or their consent, violated state law.
• Defended 200+ cases alleging that websites were not accessible to site-disabled customers.
• Prevailed at trial for an iconic department store in a deceptive pricing case prosecuted by the City Attorney of Los Angeles on behalf of the State of California, involving hundreds of millions of dollars in alleged damages. Following the two-week bench trial, the court swiftly rejected the opinions of the People’s expert witness, who was also the expert the state used in two other successful deceptive practices trials—one in a parallel proceeding involving a different defendant on nearly identical claims and another against Overstock that resulted in nearly $7 million in civil penalties.
• Persuaded the California Court of Appeal In a deceptive pricing action that California’s former price law likely violated the First Amendment, after we previously persuaded the trial court that the statute was unconstitutionally vague. As a result, the other side voluntarily dismissed its claim under the law.