NRF advocates for the retail industry on a wide range of issues, regularly weighing in on legislation being considered by Congress and regulations proposed by federal agencies. NRF’s representation of retailers extends to the courts as well because laws and regulations often become the subject of litigation and because some issues are legal disputes rather than legislative/regulatory matters.
NRF has filed lawsuits of its own, joined retail companies or other trade associations in doing so, and has filed “friend of the court” amicus briefs in a number of lawsuits where the retail industry has an interest. NRF’s legal actions have been filed at levels ranging from trial courts all the way to the U.S. Supreme Court and have often resulted in significant wins for the retail industry.
Below are links to legal briefs NRF has filed, accompanied by news releases and other supporting material where available.
Legal briefs filed by NRF
- November 6, 2023
NRF Supports Starbucks on NLRB Powers
Starbucks v. NLRB
NRF and other business groups filed an amicus brief with the U.S. Supreme Court asking the justices to take up Starbucks v. NLRB, which concerns the extent of the National Labor Relations Board’s powers under Section 10(j) of the National Labor Relations Act. Under that section, the NLRB may seek preliminary relief before the merits of a case are litigated. The question that has divided the U.S. Circuit Courts of Appeal concerns the proper standard for evaluating the NLRB’s requests for these injunctions. Four circuits apply a standard four-factor test consistent with other forms of preliminary relief. However, six apply a “reasonable cause” standard whereby the NLRB’s legal theories need only be “coherent,” “substantial” and “not frivolous.” As such, the NLRB can easily proceed even with a weak case on the merits. NRF is requesting that the Supreme Court take up the case and resolve this issue.
- October 18, 2023
NRF Files Brief on When Job Transfers Violate the Civil Rights Act
Muldrow v. City of St. Louis
NRF and other business groups filed an amicus brief with the U.S. Supreme Court in a case addressing whether Title VII of the federal Civil Rights Act prohibits discrimination in job transfer decisions absent a separate court determination that the decision caused a significant disadvantage to the employee. The brief focuses on the exposure to liability and the costs for businesses if every work assignment or transfer can trigger a Title VII claim. The Supreme Court agreed to hear the case last term.
- October 10, 2023
NRF Files Brief on Exemptions to Minimum Wage and Overtime Requirements
EMD Sales v. Carrera
NRF and other business groups filed an amicus brief with the U.S. Supreme court asking the justices to take up and reverse EMD Sales v. Carrera, a case from the 4th U.S. Circuit Court of Appeals regarding the burden of proof employers must meet regarding exemptions from minimum-wage and overtime requirements under the Fair Labor Standards Act. NRF did so because the case presents an opportunity to resolve a split in the federal circuits. Presently, employers operating in Maryland, North Carolina, South Carolina, Virginia and West Virginia are held to a higher standard than those in other jurisdictions. According to the 4th Circuit, employers must “prove their entitlement” to an exemption “by clear and convincing evidence.” Generally, the burden has always been a “preponderance of the evidence” standard and NRF’s position is that nothing in the FLSA warrants a departure from that standard.
- September 19, 2023
NRF Files Brief in Case on Confidentiality Clauses in Severance Agreements
National Labor Relations Board v. McLaren Macomb
NRF and other business groups filed an amicus brief with the 6th U.S. Circuit Court of appeals in a case addressing whether simply offering a severance agreement that includes confidentiality and non-disparagement clauses necessarily constitutes a violation of the National Labor Relations Act. The NLRB argues that such an action is a violation even without any evidence that the provisions were coercive or that the employees were, in fact, coerced.
- September 6, 2023
NRF Says Elon Musk Tweet Was Protected by the First Amendment
Tesla Inc. v. National Labor Relations Board
NRF and other business groups filed an amicus brief with the 5th U.S. Circuit Court of Appeals arguing that a tweet Tesla CEO Elon Musk posted regarding unionization at the company’s California facility was covered by the First Amendment. The NLRB found that the tweet violated the National Labor Relations Act, but NRF argues that the NLRB has no jurisdiction over non-workplace communications.
- July 24, 2023
NRF Brief Says NLRB Has Repeatedly Exceeded its Authority
Loper Bright Enterprises v. Secretary of Commerce Gina Raimondo
NRF and other business groups filed an amicus brief with the U.S. Supreme Court asking the justices to overrule the “Chevron doctrine” established in Chevron v. Natural Resources Defense Council. Under the doctrine, the court found that federal courts should defer to the respective federal agency when a statue is silent on a particular matter. The brief argues that the National Labor Relations Board has expansively and inconsistently interpreted the National Labor Relations Act for decades under the protection of the Chevron doctrine. As such, subsequent expansive interpretations of its power have led the NLRB to extend its authority beyond the limits of the NLRA. NRF argued that the NLRB’s “consistently inconsistent” interpretations of the NLRA have impaired the board’s mandate from Congress to perpetuate “stability of labor relations.” The brief urges the Supreme Court to establish limits on regulatory deference to ensure NLRB compliance with the NLRA.
- March 17, 2023
NRF Calls for ‘Reasonable Guardrails’ for Law Barring ‘Surprise’ Medical Bills
Texas Medical Association v. U.S. Department of Health and Human Services
NRF and other business groups filed an amicus brief with the U.S. District Court for the Eastern District of Texas in a case brought by medical providers challenging rules for implementation of the No Suprises Act, a new federal law intended to protect patients from “surprise” bills when they receive emergency medical care from out-of-network providers or facilities. The district court ruled in favor of the provider groups but the government has appealed. The brief expresses support for final rules that provide reasonable guardrails for the law’s independent dispute resolution process and voices concern about the impact on consumers if the process is subject to abuse.
- NRF Supports Furniture Industry Challenge to CPSC Safety Rules for Dressers
February 16, 2023
American Home Furnishings Alliance, et al. v. U.S. Consumer Product Safety Commission
NRF and several small furniture retailers filed an amicus brief in the 5th U.S. Circuit Court of Appeals in support of a lawsuit filed by the American Home Furnishings Alliance challenging Consumer Product Safety Commission regulations addressing the stability of dressers, chests of drawers and other clothing storage units. NRF said the 2022 regulations, which require that the furniture be tested for stability, bear labels containing safety information and display hang tags providing data about stability, conflict with the STURDY Act, which called on the CPSC to adopt voluntary safety standards developed by the furniture industry when possible. The brief also says the CPSC did not consider cost increases for retailers including those associated with mixed inventory, additional weight, employee training and website expenses.
See a list of members in the Council.
- NRF Asks Supreme Court to Take Up Challenge to ADA ‘Test Plaintiff’ Case
December 8, 2022
Atcheson Hotels LLC v. Deborah Laufer
NRF filed an amicus brief asking the U.S. Supreme Court to hear the case, arguing that “test plaintiffs” who have no intention of utilizing a place of public accommodation do not have standing to sue under the Americans with Disabilities Act. The brief said “serial ADA plaintiffs and their lawyers have coopted the ADA as an instrument for personal financial gain” by filing thousands of lawsuits seeking to find regulatory violations at “businesses they never intended to patronize.”
- NRF Says Court Improperly Placed Opioid Burden on Pharmacies
December 8, 2022
In re: National Prescription Opiate Litigation; Trumbull County (Ohio), et. al v. Purdue Pharma L.P. and Walgreens Boots Alliance Inc., et al., CVS Pharmacy Inc., Walmart Inc.
NRF filed an amicus brief with the 6th U.S. Circuit Court of Appeals in support of pharmacies in an Ohio lawsuit concerning the opioid crisis. NRF argued that the law of public nuisance cannot be used to hold one defendant liable for all harm that flows from a tort and that harm must be apportioned among defendants. The brief said the trial court “improperly placed the burden of addressing a public health crisis on a handful of retail pharmacies in a grossly disproportionate and arbitrary manner” and disagreed that “dispensing lawful, FDA-approved prescription opioid medications pursuant to facially valid prescriptions can possibly provide a basis for liability as a public nuisance or otherwise.”
- NRF Says Federal Discrimination Claim Should Have Been Brought in Delaware
November 28, 2022
Noelle Lee v. Robert J. Fischer et al. and The Gap. Inc.
NRF filed an amicus brief urging the 9th U.S. Circuit Court of Appeals to uphold a U.S. District Court dismissal of the case, arguing that it should have been brought in the Delaware Court of Chancery rather than federal court. Lee is a Gap stockholder who sued the Gap Board of Directors alleging that board members breached their duties by causing Gap to discriminate against minorities in nominating candidates for election to the board and in hiring and promoting employees.
- NRF Opposes California Product Placement Ruling
November 17, 2022
Salazar v. Walmart Inc.
NRF and other retail groups filed an amicus brief with the Supreme Court of California opposing a state Court of Appeals opinion that it can be misleading for a retailer to group different products used for similar functions. The brief said the opinion could lead to an “unlimited threat of litigation” against retailers for product placement such as including both chocolate chips and non-chocolate “white chips” in a grocery store baking aisle or almond milk alongside traditional milk in the dairy aisle.
- NRF Says Taft-Hartley Act Preempts Illinois Biometric Timeclock Case
November 16, 2022
William Walton v. Roosevelt University
NRF and other business groups filed an amicus brief with the Supreme Court of Illinois in a lawsuit claiming requirements for hourly unionized employees to use a biometric method of clocking in for work violate the state Biometric Information Privacy Act. The brief argued that the case is preempted by the federal Labor Management Relations Act (also known as the Taft-Hartley Act), which gives authority over collective bargaining agreements to federal courts.
- NRF Says Consumers Not Harmed in ‘Reference Price’ Lawsuits
October 19, 2022
Susan Clark v. Eddie Bauer LLC and Eddie Bauer Parent LLC
NRF and other business groups filed an amicus brief in the Supreme Court of the State of Oregon arguing that a consumer has not suffered a loss if an item purchased “on sale” was never actually sold at the reference price and therefore should not be allowed to sue. The brief said the case is one of “a spate of lawyer-driven suits bringing so-called ‘reference price’ claims against prominent retailers” but that “courts across the country have found them not to be viable.”
- NRF Says Employers Should Not be Liable for ‘Take Home’ COVID-19 Cases
October 12, 2022
Corby Kuciemba and Robert Kuciemba v. Victory Woodworks Inc.
NRF and other business groups filed an amicus brief in the Supreme Court of California arguing that individuals infected with COVID-19 by a family member who contracted the virus at work should not be able to sue the family member’s employer. Allowing such lawsuits over “take home” infections “would subject California businesses to overwhelming uncertainty, massive additional costs and protracted legal battles,” the brief said. The brief argues that California’s derivative injury rule establishes workers’ compensation as the exclusive remedy for all claims that derive from an employee’s covered workplace injury.
- NRF Says District Court Improperly Certified Class Action in Data Breach Case
October 3, 2022
In re: Marriott International Inc. Customer Data Security Breach Litigation
NRF and other business groups filed an amicus brief in the 4th U.S. Circuit Court of Appeals supporting Marriott’s position that the U.S. District Court improperly certified the case as a class action. The brief argues that data breach cases are not well suited for class action litigation but that the plaintiffs “have tried to avoid individual litigation by manufacturing a class with the inventive theory that customers would have paid less for their rooms had Starwood disclosed data-security issues.” The District Court certified the class action even though customers had waived their right to a class action, the “overcharge” theory of damages cannot be measured on a class-wide basis and the court failed to ensure that members of the class can be readily identified.
- National Retail Federation files an amicus brief in support of challenge to List 3 and List 4 China Section 301 tariffs
September 14, 2022
The Court of International Trade gave the United States Trade Representative (USTR) a second chance to satisfy its most basic obligations of reasoned decision-making for List 3 and List 4 tariffs, but USTR failed—again—to do so. After the agency responded to none of the thousands of critical comments it received during its initial rulemaking process, the Court of International Trade remanded to give USTR another opportunity to explain itself. But, USTR again offered only deflection and conclusory declarations. The time has come for the Court of International Trade to impose the normal remedy for unlawful agency action and vacate the tariffs that are taxing American consumers, contributing to the exorbitant rise in inflation and burdening our supply chains. All illegally collected List 3 and List 4 tariff duties should be returned. The Administrative Procedure Act demands it. American businesses and consumers should no longer be forced to pay higher prices on products because of tariffs that USTR cannot reasonably justify. Amicus Brief
- NRF Supports Move by The Gap and Old Navy to Terminate Leases Over COVID-19
April 14, 2022
The Gap Inc. and Old Navy LLC v. 44-45 Broadway Leasing Co. LLC
NRF and other merchant trade associations filed an amicus brief in the Appellate Division of the New York Supreme Court in support of The Gap and Old Navy in their bid to terminate or renegotiate their leases for their Times Square flagship stores. The retailers lost their bid in lower court and the case is currently under appeal. The issue is whether COVID-19 provided the necessary conditions for a tenant of a first-class, highly trafficked retail property to nullify or renegotiate its lease under the doctrines of frustration of purpose and impossibility. The fundamental argument is that neither party could possibly have foreseen and contracted for the unprecedented risk posed by a pandemic and ensuing government-issued closure orders.
- NRF Asks Supreme Court to Take Up Ruling That Lets California Workers Avoid Arbitration
September 23, 2021
Coverall North America Inc. v. Carlos Rivas
NRF and the U.S. Chamber of Commerce filed an amicus brief with the U.S. Supreme Court asking the justices to take up a case that challenges the use of California’s Private Attorneys General Act to circumvent workplace arbitration agreements. Under the Federal Arbitration Act, courts are directed to enforce arbitration agreements, including those for proceedings involving individuals. But the California Supreme Court ruled in 2014 that cases brought against employers under PAGA are not covered by the FAA, and the ruling was upheld by the 9th U.S. Circuit Court of Appeals in 2015. The brief argued that the rulings have led to an increasing number of plaintiffs being able to “evade enforcement” of arbitration agreements and called the case “one of the most significant chapters in the long and well-documented history of California courts inventing new ‘devices and formulas’ aimed at circumventing arbitration.” The brief said arbitration is used by many NRF and Chamber members because it is “speedy, fair, inexpensive and less adversarial than litigation in court.”
- NRF Asks Supreme Court to Take Up Case on California Owner-Operator Truckers
September 10, 2021
California Trucking Association Inc. v. Robert Bonta, Attorney General of California
NRF and other business groups filed an amicus brief with the U.S. Supreme Court asking the justices to take up a case brought by the California Trucking Association. The association argues that the Federal Aviation Administration Authorization Act precludes California from applying its “ABC” test under state law A.B. 5 to motor carriers’ longstanding practice of contracting with independent truck operators who own commercial vehicles. The ABC test determines whether a worker should be classified as an independent contractor or an employee, and the association says it would require trucking companies to “fundamentally restructure their business model and service offerings” by requiring owner-operator truckers to be classified as employees. Lower courts are split on the issue, but the 9th U.S. Circuit Court of Appeals has held that the FAAA does not preclude the state law.
- NRF Asks California Court to Throw Out COVID-19 Lawsuit
September 10, 2021
See’s Candies Inc. v. Matilde Ek
NRF and the U.S. Chamber of Commerce filed an amicus brief asking the California Court of Appeals to throw out a lawsuit brought by a woman whose husband died after she allegedly contracted COVID-19 at work and he, in turn, contracted the virus from her. The brief argued that the case should be dismissed under the federal Workers’ Compensation Act and that a workers’ compensation claim is the employee’s only remedy since both her illness and her husband’s death stem from her alleged exposure to the virus while at work. Allowing the suit to go forward would undermine the Workers’ Compensation Act, the brief said.
NRF Asks Ask Court to Deny Class Certification in Lawsuit Over Visa and Mastercard Swipe Fees
July 30, 2021
MDL No. 1720 -- Barry’s Cut Rate Stores Inc., et al. v. Visa Inc. and Mastercard Inc., et al.
On July 6, 2021, a U.S. District Court judge in New York allowed NRF and the Retail Industry Leaders Association to intervene in proposed class-action litigation brought by a small group of merchants against Visa and Mastercard over the way fees charged to process credit card transactions are set. On July 30, 2021, NRF and RILA filed a brief asking the court to deny the group’s motion for class certification. The brief argued that millions of merchants should not be bound by a litigation or settlement strategy dictated by the “handful of merchants” that have brought the suit. In addition, the brief says that the interests of the group and merchants represented by NRF and RILA are different. The litigation focuses on Visa and Mastercard’s no-surcharge rules while NRF and RILA have focused on Visa and Mastercard’s honor-all-cards rule and default interchange rates. Without addressing honor-all-cards and interchange rates, Visa and Mastercard and banks that issue their cards “will face no meaningful downward pressure on ever-rising interchange fees,” NRF and RILA said. The brief said existing merchants should be allowed to opt out of any class that is certified and that future merchants should not be included in the class.
NRF Says COVID-19 Should Count as Natural Disaster in Lawsuit Over Layoff Notification
July 21, 2021
Elva Benson v. Enterprise Leasing Company of Orlando LLC and Enterprise Holdings Inc.
NRF and other business groups filed an amicus brief with the 11th U.S. Circuit Court of Appeals supporting Enterprise Leasing Company of Orlando LLC, the parent company of Enterprise Rent-A-Car. Enterprise faces a class-action lawsuit alleging that its layoff of workers in April 2020 because of the COVID-19 pandemic violated federal law because employees were not given the 60 days’ notice of plant closings or mass layoffs required under the federal Worker Adjustment and Retraining Notification Act. Enterprise contends that no notice was required because of the WARN Act’s exemption for natural disasters. A U.S. District Court judge in Florida ruled that the exemption applies only to layoffs that are the direct result of a natural disaster and that the COVID-19 layoffs were the indirect result of the economic impact of the pandemic rather than the pandemic itself. The amicus brief argues that the pandemic was the cause of the layoffs and that the natural disaster exemption should apply.
NRF Asks Supreme Court to Consider How Attorney Fees are Calculated
April 26, 2021
Threatt v. Farrell
NRF and the Restaurant Law Center filed an amicus brief asking the Supreme Court to take up a case challenging exorbitant attorney fees. The underlying case involved a class action lawsuit against Bank of America regarding overdraft fees. The case was settled, but attorney fees approved were above any reasonable “lodestar” calculation, under which a judge multiplies the number of hours worked by trial counsel by prevailing hourly rates. The lodestar calculation in the case was between about $540,000 and $1.7 million but the judge awarded $14.5 million, which NRF called “staggering.” NRF supported a class member who argued that the lodestar approach must be at least a touchstone in calculating appropriate fees.
NRF and RILA Seek to Intervene in Lawsuit Over Visa and Mastercard Swipe Fees
March 26, 2021
MDL No. 1720 – Barry’s Cut Rate Stores Inc., et al. v. Visa Inc. and Mastercard Inc., et al.
NRF and the Retail Industry Leaders Association filed a brief in U.S. District Court in New York asking to intervene in class-action litigation brought by merchants against Visa and Mastercard over the way fees charged to process credit card transactions are set. The brief says the proposed class is too broad and could limit the rights of retailers to challenge the card networks’ anticompetitive rules.
- NRF Asks Supreme Court to Overturn 9th Circuit in Robocall Case
September 11, 2020
Facebook Inc. v. Noah Duguid
NRF and the Retail Industry Leaders Association filed an amicus brief asking the Supreme Court to overturn a ruling by the 9th U.S. Circuit Court of Appeals. NRF and RILA said the 9th Circuit defined “auto-dialers” too broadly and that the definition has resulted in “abusive” litigation over legitimate calls from retailers legally allowed under the Telephone Consumer Protection Act rather than blocking only “robocall” telemarketing calls the TCPA was intended to block
NRF opposes secondary union boycotts and picketing
December 28, 2020
International Union of Operating Engineers Local Union No. 150 and Lippert Components Inc.
NRF and other retail groups filed an amicus brief with the National Labor Relations Board saying secondary union boycotts, picketing and related activity targeting neutral parties that have no direct involvement in an underlying labor dispute should be considered a violation of the National Labor Relations Act. The brief was filed in a case in which the union erected a 12-foot inflatable rat and two large banners protesting the actions of Lippert Components, a supplier of recreational vehicle parts and components, at a trade show in Indiana. The brief said “an exceptionally large number of cases” of secondary pickets have taken place at retail locations aimed at companies the retailers do business with even when the retailer is not involved with the labor dispute in question.
- NRF supports status of administrative patent judges
December 2, 2020
United States v. Arthrex Inc., et al.
NRF and other business groups filed an amicus brief with the U.S. Supreme Court in favor of administrative patent judges who reexamine disputed patents under the U.S. Patent and Trademark Office’s “inter partes review” process. The judges are appointed by the Secretary of Commerce. But Arthrex challenged the judges after part of one of its patents was invalidated, claiming they are “principal officers” of the U.S. government who must be nominated by the president and confirmed by the Senate. The amicus supports the status of the judges, saying they play a “targeted, discrete role” and are not principal officers.
NRF supports Walmart in opioid case
November 30, 2020
Walmart Inc. v. U.S. Drug Enforcement Administration, et al.
NRF and other business groups filed an amicus brief in U.S. District Court in Texas in support of Walmart, saying that “predicating civil liability on interpretive guidance created without a transparent regulatory process goes against the requirements” of the federal Administrative Procedures Act and violates regulations issued by the Department of Justice. Walmart filed its lawsuit in October, asking the court to clarify the roles and responsibilities of pharmacists and pharmacies under the Controlled Substances Act. Walmart said DOJ was threatening an unjustified lawsuit claiming Walmart pharmacists should have refused to fill otherwise valid opioid prescriptions.
- NRF argues in U.S. Supreme Court that the structure of the Act provides for monetary penalties only under more egregious circumstances
October 2, 2020
FTC v. Credit Bureau Center LLC et al.
NRF and other business groups filed an amicus brief. The case presents the question whether Section 13(b) of the Federal Trade Commission Act enables the FTC to seek restitution and disgorgement in addition to its clearly stated authority to seek injunctive relief to prevent harm form ongoing or imminent acts. We weighed in on the side of the defendant, arguing that the structure of the Act provides for monetary penalties only under more egregious circumstances (Section 19), and that the Commission’s use of Section 13(b) to extract large monetary penalties has created uncertainty for businesses.
NRF urges California court to deny preliminary injunction in AB-5 independent contractor case
July 24, 2020
California v. Uber Technologies, Inc.
NRF and other business groups filed an amicus brief urging a California trial court to deny a preliminary injunction forcing Uber and Lyft to reclassify drivers as employees. In May, California’s Attorney General sued the two companies, claiming the companies wrongfully classified their drivers as independent contractors in violation of the state’s new independent contractor law (AB-5). NRF also filed an amicus brief earlier this year in another challenge to AB-5 brought by the California Truckers Association.
Business groups file motion to intervene in Department of Labor joint employer litigation
June 10, 2020
State of New York, et al v. Eugene Scalia
NRF and other business associations filed a motion to intervene in the challenge brought by the attorneys general of 17 states and the District of Columbia to the Department of Labor’s joint employment rule. If granted, the motion will provide NRF and the other associations with the ability to fully represent the interests of the business community during the course of the litigation. The case is pending in the Southern District of New York. NRF fully supported the Department’s final joint employer rule to provide much needed clarity under the Fair Labor Standards Act.
NRF supports Amazon in security screening case
June 8, 2020
Heimbach v. Amazon
NRF and the Pennsylvania Retailers Association filed an amicus brief with the Pennsylvania Supreme Court in support of Amazon in a case involving security screenings and the state’s wage and hour laws. The central question in the case is whether Pennsylvania’s wage-and-hour laws require overtime compensation for security screenings at the end of the employee’s shift. However, in answering that question, the court will likely decide whether the limitations on compensable worktime established by the federal Portal-to-Portal Act also apply to claims arising under Pennsylvania law. The case also presents the question whether Pennsylvania recognizes a de minimis exception to its overtime laws. NRF previously filed a brief in a similar case, Frlekin v. Apple, before the California Supreme Court.
NRF asks appeals court to overturn California worker classification law
May 13, 2020
California Trucking Association v. Becerra
NRF and other business groups filed an amicus brief urging the 9th Circuit Court of Appeals to affirm a preliminary injunction halting enforcement of California Assembly Bill 5 against motor carriers. The brief argues the sweeping California law violates the Federal Aviation Administration Authorization Act, which expressly preempts any state law or regulation related to the price, route or service of motor carriers and was intended to prevent a patchwork of state regulations that could undermine federal deregulation of interstate trucking.
- NRF says trial lawyers have abused auto-dialer phone rule
March 2, 2020
Barr v. American Association of Political Consultants
NRF and the Retail Litigation Center filed a joint amicus brief with the U.S. Supreme Court saying auto-dialer restrictions under the federal Telephone Consumer Protection Act are confusing and outdated and have been exploited by the plaintiffs’ bar. The brief says striking down the provision could end abusive litigation against retailers and other legitimate callers without resulting in an increase in unwanted calls to consumers.
NRF urges California Supreme Court to hold that Dynamex applies only prospectively
January 15, 2020
Gonzalez v. San Gabriel Transit
NRF and other business associations filed a brief asking the California Supreme Court to accept a petition for review in a case concerning the retroactive application of the Court’s 2018 decision in Dynamex. The brief argues Dynamex set forth a wholly new standard for worker classification that no party could reasonably have been required to rely on prior to its issuance and that Dynamex is prospective in its application only and applies only to contracts entered into on or after April 30, 2018.
NRF urges federal district court to overturn unconstitutional California arbitration law
December 6, 2019
Chamber of Commerce of the United States of America et al. v. Becerra et al
NRF filed suit in U.S. District Court challenging the constitutionality of A.B. 51, California’s sweeping anti-arbitration law. NRF and the similarly situated co-plaintiffs asked the court to declare A.B. 51 unconstitutional as it is preempted by federal law and to enjoin its enforcement by the state of California.
- NRF asks appeals court to reaffirm federal ban on secondary boycotts
December 2, 2019
SEIU Local 87 v. NLRB
NRF joined a coalition amicus brief urging the 9th U.S. Circuit Court of Appeals to reaffirm that the Taft-Hartley Act’s prohibition on secondary boycotts does not violate the First Amendment. The case concerned several San Francisco janitors from a local union who were fired for picketing the building where they perform work. The National Labor Relations Board held that the workers engaged in unlawful and thus unprotected secondary picketing targeting a neutral employer because the picketers failed to clearly disclose that their dispute was with the janitorial contractors, and not the tenant companies based in the office building. On appeal to the 9th Circuit, the Service Employees International Union raised constitutional concerns.
- NRF says FTC exceeded authority in restitution case
November 20, 2019
AMG Capital Management v. Federal Trade Commission
NRF and the U.S. Chamber of Commerce filed a brief with the U.S. Supreme Court urging the justices to take up a case involving whether the Federal Trade Commission can seek restitution under a section of the FTC Act that authorizes only injunctive relief rather than monetary damages. NRF contends that the FTC has exceeded its authority by doing so and has sought “massive” amounts, including $1.3 billion in the case in question.
NRF urges NLRB to modify standard that currently protects profane and offensive speech
November 12, 2019
NRF joined a coalition amicus brief urging the National Labor Relations Board to change its standard to determine when profane, racist or sexist language loses legal protection under the National Labor Relations Act. The NLRB invited briefs in the case, and briefs were filed by the Equality Employment Opportunity Commission, business groups, and labor unions. The brief argues that the NLRB’s standard should reflect the modern workplace and should be amended so that it is not at odds with other laws, including Title VII of the Civil Rights Act.
- NRF supports Walmart in wage statement case
October 28, 2019
Magadia v. Walmart Inc.
NRF and other business groups filed an amicus brief with the 9th U.S. Circuit Court of Appeals in support of Walmart in a case involving wage-rate information that California law requires employers to include on the final pay statements of terminated employees. The plaintiff claimed Walmart violated the law because start dates and end dates were not included in the statements and because overtime pay based on quarterly bonuses was shown as lump sum, but NRF argued that Walmart complied with the law.
- NRF asks Supreme Court to support DACA
October 4, 2019
Department of Homeland Security, et al. v. Regents of the University of California, et al.
NRF and more than 140 businesses and business organizations filed an amicus brief with the U.S. Supreme Court in support of the federal Deferred Action for Childhood Arrivals program, saying permanent protections for DACA recipients would benefit the economy.
- NRF asks appeals court to reverse district court’s EEO-1 decision
August 26, 2019
National Women’s Law Center v. Office of Management and Budget
NRF joined a coalition amicus brief urging the D.C. U.S. Circuit Court of Appeals to reverse a U.S. District Court decision to reinstate the Equal Employment Opportunity Commission’s burdensome expansion of the annual EEO-1 report. NRF previously filed an amicus brief in the D.C. District Court asking the court to consider the substantial burden that implementing sweeping new EEOC data requirements would have on employers.
Retailers Ask Supreme Court for Clarity in ADA Website Claims
July 15, 2019
Domino’s Pizza LLC v. Guillermo Robles
NRF and the Retail Litigation Center and NRF filed an amicus brief asking the Supreme Court to take up Domino’s appeal of a ruling on accessibility of its website under the Americans with Disabilities Act.
- NRF asks U.S. District Court to give employers more time to comply with new EEOC reporting requirements
April 3, 2019
National Women’s Law Center v. Office of Management and Budget
NRF filed an amicus brief in U.S. District Court asking the court to consider the substantial burden that implementing sweeping new Equal Employment Opportunity Commission data requirements would have on employers. In 2016, the EEOC expanded its annual EEO-1 report from 180 items concerning employee records to 3,660 for each establishment but the change was blocked by the Office of Management and Budget in 2017 and employers were not required to comply. On March 4, 2019, Judge Tanya Chutkan reinstated the data requirements. The brief filed by NRF and other groups said employers need at least 18 months to merge data systems and file accurate reports.
- NRF asks Supreme Court to hear case on EEOC claim
March 4, 2019
Fort Bend County, Texas. v. Davis
NRF filed an amicus brief asking the U.S. Supreme Court to take up a case on whether a worker who has not raised a discrimination claim as part of an Equal Employment Opportunity Commission case can file a lawsuit in federal court.
- NRF asks Louisiana Supreme Court to rule in online sales tax case
March 1, 2019
Newell Norman, Sheriff and Ex-Officio Tax Collector for the Parish of Jefferson v. Wal-Mart.com USA
NRF filed an amicus brief asking the Louisiana Supreme Court to hear an appeal from Walmart on whether a third-party online marketplace can retroactively be required to collect sales tax.
- NRF tells Supreme Court SNAP purchase data should be confidential
February 21, 2019
Food Marketing Institute v. Argus Leader Media
NRF filed an amicus brief asking the U.S. Supreme Court to rule that purchasing data involving the federal Supplemental Nutrition Assistance Program is confidential business information that does not have to be disclosed under the Freedom of Information Act.
- NRF supports Domino’s in ADA web access case
January 15, 2019
Robles v. Domino's Pizza
NRF filed an amicus brief with the 9th U.S. Circuit Court of Appeals in support of Domino's Pizza in a website access case brought under the Americans with Disabilities Act.
- NRF supports retailers sued over discount price advertising
December 3, 2018
State of California v. J.C. Penney Corporation Inc.
NRF filed an amicus brief in the California Court of Appeal in support of retailers sued by the Los Angeles County Attorney for advertising that a sale price is a discount from a previous price.
- NRF asks Supreme Court to take up appeal on disclosure of SNAP purchases
November 13, 2018
Food Marketing Institute v. Argus Leader Media
NRF filed an amicus brief asking the U.S. Supreme Court to take up the Food Marketing Institute’s appeal of a ruling that required merchants to disclose purchasing data involving the federal Supplemental Nutrition Assistance Program under the Freedom of Information Act. FMI contends that the data is exempt from disclosure and that releasing it would cause competitive harm.
- NRF asks 11th Circuit to reverse ruling in credit card number case
October 31, 2018
Muransky et al. v. Godiva Chocolatier Inc
NRF filed an amicus brief with the 11th U.S. Circuit Court of Appeals opposing its ruling against Godiva, which was sued for allegedly violating the federal Fair and Accurate Credit Transactions Act prohibition against printing more than the last five digits of a credit card number on a receipt. The brief argued that the suit should not have been allowed because the plaintiff had not suffered identify theft or other harm.
- NRF asks appeals court to support UPS challenge of ambush election rules
October 22, 2018
UPS Ground Freight v. National Labor Relations Board
NRF filed an amicus brief asking the U.S. Circuit Court of Appeals for the District of Columbia to support UPS Ground Freight’s challenge of the National Labor Relations Board’s “ambush elections” regulations, saying the rules prioritize speed over due process and fair union elections.
- NRF asks NLRB to block use of employer email for union organizing
October 5, 2018
Caesar’s Entertainment Corporation d/b/a Rio All-Suites Hotel and Casino and International Union of Painters and Allied Trades
NRF filed an amicus brief with the National Labor Relations Board arguing that it should overturn its 2014 Purple Communications decision. NRF said the decision improperly created a new employee right to utilize employer email for union organizing purposes and opened businesses up to unnecessary cyber risks.
- NRF asks Supreme Court to take up data breach case
September 21, 2018
Zappos v. Stevens et al.
NRF filed an amicus brief asking the U.S. Supreme Court to take up a case on whether an individual can sue simply because their credit card information was involved in a data breach even if there is no evidence that they have suffered harm or have an imminent threat of harm.
- NRF opposes Illinois lawsuit over fingerprint identification
September 11, 2018
Stacy Rosenbach v. Six Flags Entertainment Corp. and Great America
NRF filed an amicus brief with the Illinois state Supreme Court arguing that employees required to provide a thumbprint for timekeeping purposes should not be allowed to sue under the state’s Biometric Information Privacy Act if there is no allegation that they were harmed by doing so.
- NRF opposes recusal of NLRB chairman on joint employer decision
August 28, 2018
McDonald’s USA et al. and Fast Food Workers Committee and Service Employees International Union et al.
NRF filed an amicus brief with the National Labor Relations Board in opposition to a motion filed by the Service Employees International Union seeking recusal of NLRB Chairman John Ring and member Bill Emanuel in the McDonald’s joint employer case. NRF believes politicization of the board’s ethics rules is improper and could have lasting negative effects on the board’s ability to carry out its mission.
- NRF opposes creation of micro-union at Boeing facility
July 12, 2018
The Boeing Co. v. International Association of Machinists and Aerospace Workers
NRF filed an amicus brief in support of Boeing’s request for the National Labor Relations Board to review a regional director’s approval of a micro-union at the company’s South Carolina facility. NRF believes micro-unions allow for gerrymandered bargaining units that fracture retail and other workplaces, and NRF has filed briefs in numerous cases to highlight the disruptive nature of these units.
- NRF supports Apple in dispute over bag search time
July 9, 2018
Amanda Frlekin v. Apple
NRF filed an amicus brief in the California state Supreme Court arguing that time spent searching an employee’s bag when leaving work at the end of the day should not be considered payable work time.
- NRF asks Supreme Court to review case on arbitration
Five Star Senior Living and FVEManagers v. Melinda Mandviwala
NRF filed an amicus brief with the U.S. Supreme Court asking the justices to take up a case challenging California’s Private Attorneys General Act, which has been used to circumvent arbitration requirements in labor disputes.
- NRF asks Supreme Court to uphold South Dakota online sales tax law
March 5, 2018
South Dakota v. Wayfair
NRF filed an amicus brief with the U.S. Supreme Court asking the justices to uphold a South Dakota law requiring online retailers with more than $100,000 in annual sales into the state to collect sales tax.
- NRF asks appeals court to throw out class-action lawsuit over handicapped parking
November 20, 2017
Mielo v. Steak ‘n’ Shake
NRF filed an amicus brief asking the 3rd U.S. Circuit Court of Appeals to reverse a U.S. District Court judge’s certification of a national class action lawsuit brought under the Americans with Disabilities Act claiming that the slope of handicapped parking spaces was too steep.
- Retailers ask Supreme Court to take up online sales tax case and recognize ‘realities of the internet age’
November 1, 2017
South Dakota v. Wayfair, Overstock and Newegg
NRF filed an amicus brief asking the U.S. Supreme Court to take up a case involving a South Dakota law requiring online retailers with more than $100,000 in annual sales into the state to collect sales tax.
- NRF asks court to uphold administrative review of patent disputes
October 30, 2017
Oil State Energy Services v. Greene’s Energy Group
NRF filed an amicus brief asking the U.S. Supreme Court to uphold the constitutionality of the “inter partes review” process, which allows many “patent troll” disputes to be heard administratively at the U.S. Patent and Trademark Office without the need to go to court.
- NRF asks Supreme Court to take up joint employer case
July 7, 2017
DirecTV v. Hall
NRF filed an amicus brief asking the U.S. Supreme Court to take up a case involving the 4th Circuit Court of Appeals’ interpretation of when two or more companies can be held jointly liable under the Fair Labor Standards Act. NRF argued that the appellate court’s ruling opened retailers up to seemingly limitless joint employer liability with business partners. The Supreme Court declined to hear the case.
- NRF asks appellate court to overturn NLRB ruling on employee discipline
May 30, 2017
The Organization United for Respect at Walmart v. National Labor Relations Board
NRF filed an amicus brief asking the 9th U.S. Circuit Court of Appeals to overturn a National Labor Relations Board ruling that Walmart violated the National Labor Relations Act when it disciplined employees involved in an in-store protest during regular store hours. The brief argued the NLRB’s decision set a dangerous precedent that seriously upsets the careful balance struck by federal labor law, with significant practical consequences for retailers and their customers.
- NRF asks Supreme Court to review California law on arbitration
April 14, 2017
Bloomingdale’s Inc. v. Nancy Vitolo
NRF filed an amicus brief asking the U.S. Supreme Court to review and decide the enforceability of California’s Private Attorneys General Act. NRF said waivers in arbitration agreements under the law have been a significant issue for retailers operating in California. The Supreme Court declined to hear the case.
- NRF asks California Supreme Court to overturn ruling on commissions[SC3]
February 16, 2017
Macy’s West Stores Inc. v. Superior Court of California
NRF filed an amicus brief in support of Macy’s, urging the California Supreme Court to reverse a lower court’s ruling regarding advance commission payment programs. The trial court found that wage statements issued by Macy’s violated California labor law because they did not record when advance commission pay was “actually earned.” NRF previously filed an amicus brief with the California Court of Appeal given the significance of the issue for retailers who pay employees on an advance commission basis.
- NRF asks appellate court to overturn NLRB approval of Volkswagen micro-union
February 2, 2017
Volkswagen Group of America v. National Labor Relations Board
NRF filed an amicus brief asking the Circuit Court of Appeals for the District of Columbia to overturn the National Labor Relations Board’s approval of a micro-union at Volkswagen’s Tennessee plant on the grounds that micro-unions violate the National Labor Relations Act and fracture the workplace.
- RLC and NRF ask full appeals court to hear case on American Express credit card fees
November 15, 2016
United States v. American Express
NRF filed an amicus brief asking the full 2nd U.S. Circuit Court of Appeals to take up a lawsuit over American Express rules that keep retailers from encouraging customers to use other cards with lower processing fees. NRF said the rules are an antitrust violation and have made it difficult for merchants to win lower fees from any of the nation’s major credit card companies.
- NRF asks Supreme Court to take up arbitration case
Epic Systems Corp. v. Jacob Lewis
NRF filed an amicus brief asking the U.S. Supreme Court to take up a case involving the use of arbitration agreements in employment issues. Many retailers rely on arbitration programs to resolve employment claims in a fair and efficient manner. The Supreme Court took the case and ultimately issued a favorable ruling.
- Retailers file suit to block new overtime rule
September 20, 2016
Plano Chamber of Commerce et al. v. Thomas E. Perez
NRF and other business groups filed a lawsuit in U.S. District Court challenging the Obama administration’s sweeping expansion of overtime and obtained an injunction blocking the expansion before it could take effect. NRF argued that the expanded overtime plan would have negatively impacted retailers across the country and limited career opportunities for workers. On August 31, 2017, the court overturned the plan entirely, but by that time it had been withdrawn by the Trump administration Labor Department.
- NRF asks appellate court to allow class action waivers in arbitration agreements[SC4]
July 28, 2016
The Rose Group, d/b/a Applebee’s Restaurant v. National Labor Relations Board
NRF filed an amicus brief asking the 3rd U.S. Circuit Court of Appeals to reject the National Labor Relations Board’s position against class action waivers in mandatory arbitration agreements. The issue is of great significance for many NRF members, and the brief echoed arguments NRF made in support of the Raymours Furniture Company in a separate lawsuit. (See below)
- NRF asks appellate court to uphold mandatory arbitration ruling
June 20, 2016
Patterson v. Raymours Furniture Company Inc.
NRF filed an amicus brief asking the 2nd U.S. Circuit Court of Appeals to affirm a U.S. District Court decision concerning the validity of mandatory arbitration class and collective waivers under the National Labor Relations Act. The brief urged the court to reject the National Labor Relations Board’s position against class action waivers in mandatory arbitration agreements, and the court ruled in the furniture company’s favor in September 2016. The case was one of many that ultimately led to a favorable ruling by the Supreme Court on the issue.
- Retailers file amicus brief in joint employer case
June 15, 2016
Browning Ferris Industries v. National Labor Relations Board
NRF filed an amicus brief with the U.S. Court of Appeals for the District of Columbia in a lawsuit challenging a National Labor Relations Board ruling that expanded the traditional definition of a “joint employer” by saying a company could be held responsible for the actions of its subcontractors or franchisees.
- NRF asks appellate court to review NLRB micro-union approval
December 16, 2015
Constellation Brands d/b/a Woodbridge Winery v. National Labor Relations Board
NRF filed an amicus brief asking the 2nd U.S. Circuit Court of Appeals to review the National Labor Relations Board’s controversial Specialty Healthcare decision, which allowed the creation of micro-unions, and the NLRB’s approval of a micro-union at Woodbridge Winery. The brief challenged the Specialty Healthcare decision itself and argued that the full NLRB and an NLRB regional director had misapplied the standard in approving the winery micro-union. The court held that Specialty Healthcare is a permissible framework but that it was improperly applied in this case.
- Retailers urge appeals court to vacate FCC’s TCPA ruling
December 3, 2015
ACA International v. Federal Communications Commission
NRF filed an amicus brief asking the U.S. Court of Appeals for the District of Columbia to vacate two provisions of a Federal Communications Commission order that reinterpreted the obligations of businesses under the Telephone Consumer Protection Act. NRF said the provisions would encourage litigation threatening the ability of retailers to legitimately communicate with consumers.
- NRF supports Nordstrom in California ‘day of rest’ case[SC5]
November 30, 2015
Mendoza v. Nordstrom
NRF filed an amicus brief in support of Nordstrom before the California state Supreme Court regarding the proper interpretation of California’s “day of rest” statutes. The court issued a unanimous opinion in May 2017 that provided retailers with much-needed clarity about when their employee schedules comply with California law and preserved employers’ flexibility in scheduling.
- NRF opposes unions projecting messages onto buildings
September 2, 2015
Great Wash Park, d/b/a Tivoli Village v. International Union of Painters and Allied Trades Local 159
NRF filed an amicus brief urging the Nevada Supreme Court to affirm a trial court injunction preserving employer property rights. The case involved a union tactic in which the union projects messages onto the façade of an employer’s building using equipment located on public property. The practice raises unique property, nuisance, and trespass issues, and is of particular significance to customer-facing employers.
- NRF supports fluctuating workweek calculation for overtime[SC6]
July 24, 2015
Lalli v. General Nutrition Centers Inc.
NRF filed an amicus brief in the 1st U.S. Circuit Court of Appeals concerning the fluctuating workweek method of calculating overtime compensation, which is used by many retailers. The brief urged the court to uphold a U.S. District Court ruling that GNC was permitted to utilize the method even though it paid employees a sales commission in addition to a fixed weekly salary. In February 2016, the appeals court issued a favorable opinion preserving employer flexibility in designing compensation plans that incentivize and reward retail employees.
- NLRB micro-union decision causes untold harm to retail
April 27, 2015
Macy’s v. National Labor Relations Board
NRF filed an amicus brief with the U.S. Court of Appeals saying the National Labor Relations Board’s decision to recognize workers in a single department at a Macy’s store in Massachusetts rather than the entire store violated longstanding precedents on union organizing.
- NRF supports challenge to ambush union elections
April 21, 2015
Baker DC v. National Labor Relations Board
NRF filed an amicus brief in U.S. District Court in support of Baker DC, a concrete contractor in Washington, D.C., in its challenge to the National Labor Relations Board’s ambush election rules. The court subsequently upheld the rules on July 29, 2015. Previously, in January 2015, NRF and other associations sued the NLRB seeking to overturn the rules.
- Retailers file amicus brief in micro-union case
January 13, 2015
Nestle Dreyer’s Ice Cream Company v. National Labor Relations Board
NRF filed an amicus brief with the 4th U.S. Court of Appeals in a lawsuit challenging a National Labor Relations Board ruling that allowed the creation of “micro-unions” that could be as small as a single location within a company or a single department within a location.
- NRF sues to overturn NLRB ambush election rules
January 5, 2015
Chamber of Commerce of the United States et al. v. National Labor Relations Board
NRF and other trade associations filed a lawsuit in U.S. District Court to block the National Labor Relations Board’s rules allowing “ambush elections” for union organizing from taking effect. The ambush elections rules significantly shortened the period between a union’s filing of a request for an election and the actual election itself and infringed on both employer and employee rights. The court upheld the rules on July 29, 2015, and the rule remains in effect.
- NRF asks U.S. Supreme Court to review swipe fee ruling
August 18, 2014
NACS, National Retail Federation, Food Marketing Institute, Miller Oil Co., Boscov’s Department Store, and National Restaurant Association v. Board of Governors of the Federal Reserve System
NRF filed an appeal with the U.S. Supreme Court asking the justices to overturn a ruling by the U.S. Circuit Court of Appeals for the District of Columbia. The appellate court ruling upheld the Federal Reserve’s 21-cent cap on debit card transaction fees, which NRF had argued was higher than the amount intended by Congress under the Dodd-Frank Consumer Protection and Wall Street Reform Act.
- Retailers ask appeals court to overturn credit card swipe fee settlement
June 16, 2014
In Re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation
NRF asked the 2nd U.S. Circuit Court of Appeals to overturn a $7.25 billion settlement in a class action antitrust lawsuit over credit card swipe fees, saying the settlement failed to do enough to change the way credit card companies set the fees.
- NRF asks NLRB to block use of employer email in union organizing
June 16, 2014
Purple Communications Inc. v. Communications Workers of America, AFL-CIO
NRF filed an amicus brief with the National Labor Relations Board asking the board to uphold its earlier decision in the Register Guard case and reaffirm that employees do not have any statutory right to use employers’ email or other electronic communications systems for activities such as union organizing.
- NRF calls NLRB recess appointment unconstitutional
National Labor Relations Board v. Noel Canning
NRF filed an amicus brief with the U.S. Supreme Court arguing that President Obama’s use of recess appointments to fill vacancies on the National Labor Relations Board was unconstitutional and that actions taken while questionable appointees were in office should be vacated.
- NRF tells court retailers should be exempt from conflict minerals rule
September 18, 2013
NRF filed an amicus brief with the U.S. Court of Appeals for the District of Columbia saying retailers should not be included under regulations requiring manufacturers to determine whether merchandise contains “conflict” gold and other minerals from the Democratic Republic of the Congo.
- NRF and NCCR join coalition legal brief opposing new federal trucking regulations
July 31, 2012
American Trucking Associations v. Federal Motor Carrier Safety Administration
NRF filed an amicus brief with the U.S. Circuit Court of Appeals for the District of Columbia in a lawsuit opposing new federal trucking regulations on drivers’ hours of service set by the Federal Motor Carrier Safety Administration. NRF said the regulations were arbitrary and capricious.
- NRF and NCCR join legal brief against micro-unions
June 15, 2012
The Neiman Marcus Group d/b/a Bergdorf Goodman v. Local 1102 Retail, Wholesale Department Store Union
NRF filed an amicus brief with the National Labor Relations Board requesting that it reject a request by the Retail, Wholesale and Department Store Union that it certify that workers in the women’s shoe department at the flagship Bergdorf Goodman store in New York City constitute a bargaining unit for union organizing.
- NRF files lawsuit saying Fed didn’t follow law in setting swipe fee regulations
November 22, 2011
NRF filed a lawsuit in U.S. District Court saying the Federal Reserve failed to follow key requirements of a 2010 law when it adopted a flawed cap on debit card swipe fees. NRF said failure allowed big banks to continue charging unjustifiably high swipe fees and has discouraged price competition among credit card networks.