CURRENT MONTH (October 2021)

Yeezy Apparel in Hot Water for Shipping Delays

By John Ottaviani, Partridge Snow & Hahn LLP

Is it because of the container ship backup, or due to supply chain issues, or just poor service? Whatever the reason, Kanye West’s Yeezy Apparel, a high-end sneaker and retail clothing business, is in trouble with the State of California. In a complaint filed on October 22, 2021, various California county district attorneys sued Yeezy Apparel LLC and Yeezy LLC for “failing to ship items within thirty days and failing to provide adequate delay notices to California consumers, or provide an offer of a refund.” California v. Yeezy Apparel LLC, No. 21STCV38971 (Cal. Super. Ct. L.A. County, Filed Oct. 22, 2021).

Section 17538(a) of the California Business and Professions Code states that a company must not allow thirty days to elapse after accepting payment for goods or services offered over the Internet without: (1) shipping or providing the goods or services ordered; (2) providing a full refund; (3) sending written notice advising the buyer of the delay and offering a refund; or (4) providing substitute goods or services with the opportunity to return them for a refund. There are exceptions to the thirty-day provision, such as an exemption for businesses whose advertising conspicuously indicates the possibility of a delay in delivery.

The complaint alleges that the Yeezy companies repeatedly violated Section 17538(a) by failing to ship items within thirty days and failing to provide adequate notice to California consumers, or to offer a refund. The complaint also claims that the Yeezy companies violated other California consumer protection laws by making false or misleading statements about their process to “ship products within a certain timeframe, particularly where customers paid an additional charge for expedited shipping.”

As described by the Los Angeles Times, the district attorneys “are seeking a judgment that would permanently restrain West’s companies from repeating the alleged practices, as well as fines of as much as $2,500 for each breach of the state business code, along with restitution for affected consumers.”

The case serves as a reminder that Internet companies, wherever they are located, may be subject to a myriad of federal and local laws in other jurisdictions regarding shipping, mailing, refunds and other policy disclosures. For example, the Federal Trade Commission’s Mail, Internet, or Telephone Order Merchandise Rule, 16 C.F.R. Part 435, requires sellers who solicit buyers to order merchandise through the mail, via the Internet, or by phone to have a reasonable basis to expect that the sellers can ship within the advertised time frame, or, if no time frame is specified, within thirty days. The Rule also requires that, when a seller cannot ship within the promised time, the seller must obtain the buyer’s consent to a delay in shipping or refund payment for the unshipped merchandise.

New York City Implements Biometric Identifier Information Ordinance

By Lakshmi Gopal, Muciri Law, PLLC

Since July 9, 2021, a new biometrics privacy ordinance has been in effect across New York City that places new limits on “commercial establishments” that collect, process or transfer customer biometric identifier information (BII). Under the new ordinance, covered businesses must notify customers of their use of BII in plain and simple language using clear and conspicuous signage placed near all customer entrances, § 22-1202(a). Further, the Ordinance flatly prohibits selling, leasing, trading, sharing or otherwise profiting from BII, § 22-1202(b). The Ordinance sets out a narrow but detailed definition of “commercial establishments” as places of entertainment, retail stores, or food and drink establishments, with further definitions for each sub-category. BII is defined as including retina or iris scans, fingerprints, voiceprints, scans of hand or face geometry and other biological or psychological characteristics that identify or assist in identification of an individual.

The Ordinance is directed at certain surveillance-oriented and for-profit uses of the expanding array of detectable and, at times, inaccurate BII. For example, certain retail establishments log and file BII from every customer who walks through the door. The Ordinance addresses an array of civil liberty and cybersecurity concerns raised by the increasing reliance on BII collection in commercial spaces, concerns that are compounded by algorithmic bias and the failings of BII technology in identifying people of color with accuracy.

The Ordinance creates two grounds for private right of action. For violations of § 22-1202(a), aggrieved parties must first provide violators written notice of allegations. Such notice triggers a 30-day safe harbor period during which businesses can avoid legal action by curing violations and providing a written statement that violations have been cured and that no further violations will occur. If a business does not take these curative steps or if violations persist, then, and only then, can an aggrieved party commence action in court.

There is no such safe harbor for violations of § 22-1202(b). Moreover, some commentators note that this section appears to extend to all BII, and not just customer BII. Thus, for example, moving forward commercial establishments that handle employee BII might need to ensure that contracts granting access to such BII do not implicate the Ordinance’s prohibitions under this section. The Ordinance grants prevailing parties damages ranging from $500 to $5,000 “per violation.” Prevailing parties may also recover reasonable attorneys’ fees, costs and other relief deemed appropriate by the court. Notably, the ordinance does not create liability for government agencies, employees, agents, or financial institutions, nor does it trigger liability for images/videos not analyzed by BII technology or not shared with third parties other than law enforcement.

The Ordinance joins New York State’s Stop Hacks and Improve Electronic Data Security (SHIELD) Act (requiring reasonable safeguards to protect biometric and other private information) and New York Penal Law § 190.81 (criminalizing unlawful possession of biometric data while knowing such information is intended to be used in furtherance of crime) that also regulate lawful use of BII.

New Jersey Lawyer Cleared of Ethics Charge for Social Media Misuse

By Russel Bleiler, Drexel University Thomas R. Kline School of Law

In a September 21, 2021, decision, the New Jersey Supreme Court dismissed ethics charges against a lawyer accused of using his paralegal to “friend” an opposing party after concluding the lawyer did not understand Facebook privacy settings at the time. In re Robertelli, 248 N.F. 293 (N.J. 2021).

The issue in the attorney disciplinary case was whether John J. Robertelli (Robertelli) violated the Rule of Professional Conduct 4.2 (RPC 4.2). RPC 4.2 forbids a lawyer from interacting with another lawyer’s client about the representation at hand without the other lawyer’s permission. Robertelli had a paralegal send a Facebook friend request to a personal injury litigant who was suing Robertelli’s client. The paralegal downloaded private posts and a video of the litigant engaged in wrestling after the alleged injury. The paralegal used her real name but did not mention that she worked for Robertelli. The incident occurred in 2008, when Facebook was in its infancy, and Robertelli testified that he did not understand the privacy settings or what it meant to be a “friend” on Facebook.  

A special master heard the evidence of the case and dismissed all charges against Robertelli. A divided ethics review board revived the charges, which led to the review by the New Jersey Supreme Court. The New Jersey Supreme Court dismissed all charges and reasoned that an individual’s knowledge of Facebook’s privacy policies in 2021 could not be retroactively applied to their knowledge of the social media platform’s privacy policies thirteen years earlier. The court added that the Advisory Committee on Professional Ethics would review the social media guidelines and determine if there is a need for any additions or amendments to the New Jersey attorney ethics rules.

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