Retail Litigation Headquarters

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.

2019

  • 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.

2018

  • 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
    April 2018
    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.

2017

  • 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.

2016

  • 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
    October 2016
    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.

2015

  • 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.

2014

  • 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.

2013

  • NRF calls NLRB recess appointment unconstitutional
    November 2013
    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.

2012

  • 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.

2011

  • 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.