International Retail Conference Focuses on Global Trends

Retail Annual Conference
Focused on international retail

Antony Gold, Eversheds LLP
23 September 2011

Innovation
From bartering
Degree of
Innovation

6 3 1
0 5 5
Year Dot Dark Middle 19 19 19 20
Ages Ages 60 95 10

Innovation
From bartering
To buying in bulk, selling in ones
Degree of
Innovation

6 3 1
0 5 5
Ages Ages 60 95 10

Innovation
From bartering
To buying in bulk, selling in ones
To artisan shops in markets
Degree of
Innovation

6 3 1
0 5 5
Ages Ages 60 95 10

Innovation
General merchandisers – Self-service
Degree of
Innovation

6 3 1
0 5 5
Ages Ages 60 95 10

Innovation
General merchandisers – Specialist chains
Degree of
Innovation

6 3 1
0 5 5
Ages Ages 60 95 10

Innovation
e-Commerce
Degree of
Innovation

6 3 1
0 5 5
Ages Ages 60 95 10

Innovation
m-Commerce
Degree of
Innovation

6 3 1
0 5 5
Ages Ages 60 95 10

The last 20 years
Key changes

Key trends Retailer perspective
• Changes in space • Power passing from
• Consolidation manufacturer
to retailer to customer
• Supply chain
• From location to brand
• Consumer technology
• From limited opening hours
to open
all hours

Drivers for a different approach to
Consumers/Citizens

Social Networks

14

Retail under threat - 1

15


16


17


18

Predictions for the future
A huge
A Fast supply Cross-
restructuring of
retail space generation chain channel
The shopping retailing
Price al experience will be
inflation Sustainable
change the differentiator products
Sustainable The relentless
operating growth of the Mass
supermarkets customisation
model
Many fascia Retail will
Localis brands become a
Sourcing m Internationalis will disappear
rethought more
ation recognised
career choice

The next 20 years
Widespread, seamless cross-channel
retailing
Key trends Power shift
• Consumer technology • From store location to
• Access to information at no customer location
cost • From retailer sets prices to
customer checks price at
point of purchase

The next 20 years
Customers as designers

Key trends Power shift
• Manufacturing technology • From „buy what I sell‟
• „I don‟t want that one‟ to „I‟ll create your design‟
(personalisation on
demand)

Stores reinvented
A unique customer experience

• To browse
• To play with and sample products
• To gather information
• To order
• To pick up what you have already ordered

How to succeed
Hyper-personalisation

Key trends Power balance
• Retail brand independent of • Retailer insights on
location individual customer versus
• Customer analytics on an information consumers have
increasingly • Customer service
rich data set
• Highly personalised
interaction

On the move -
Consumers require joined up
platforms, devices, and
experiences.

Real estate issues when expanding into
Europe and beyond

Gareth Ashfield, Eversheds LLP
23 September 2011

Global Perspective
on Retail

PRESENTED BY:
MARK BURLTON
Partner, Retail Services
Cushman & Wakefield LLP

September 2011

29

AGENDA
GLOBAL ECONOMY
RETAILING TRENDS
CROSS BORDER ACTIVITY
CONCLUSION

Global Economy 31

GLOBAL ECONOMY is in the early
stages of recovery

CONSUMERS are feeling more
confident with their own balance
sheet and are starting to spend again

Global Economy 32
SIZE OF THE MARKET

EUROPEAN UNION U.S. CHINA JAPAN
$16.2 Trillion $14.7 Trillion $5.9 Trillion $5.5 Trillion

UK BRAZIL INDIA
$2.3 Trillion $2.1 Trillion $1.5 Trillion

Source: Cushman & Wakefield Research, International Monetary Fund

Global Economy 33
SIZE OF MARKET

Private Consumption
Billions, $US Dollars
The U.S. is still the largest
retail market in the world

Source: Cushman & Wakefield Research, U.S. Bureau of Economic Analysis, OECD, Moody’s Analytics

Global Economy 34
REAL GDP GROWTH 2009-2012

The tale of two markets –
mature markets and
Y-o-Y %Change emerging markets


Global Economy 35
REAL CONSUMER SPENDING GROWTH 2010-2012

Y-o-Y %Change Emerging Markets are leading the growth in
global consumer spending – with an appetite
for luxury and recognizable Western brands


Global Economy 36
STOCK MARKETS AND RETAIL SALES 2006-2011

Stock Market Retail Sales Stock Market Retail Sales
(Y-o-Y %Change) (Y-o-Y %Change) (Y-o-Y %Change) (Y-o-Y %Change)

Stock Market Retail Sales
(Y-o-Y %Change) (Y-o-Y %Change)

The stock market has
proved to be a leading
indicator of retail sales

Source: Cushman & Wakefield Research

Global Economy 37
FISCAL DEFICITS AND DEBT

Negative sovereign ratings actions have
moved beyond Ireland and Greece

Rating placed on negative outlook
Rating downgrade(s)
AA- AA+

Ireland Spain

Baa1 Aa2 Baa3/ B
Portugal Greece BBB+

AA- Aa3
A+ BB+ A- A3/BBB- Baa1/
Belgium Japan USA BBB- Italy

AA+ AA- Aa2 AAA A+ AAA
B1/BB- Caa1/ AA+
CCC

Dec 2010 Jan 2011 Feb 2011 Mar 2011 Apr 2011 May 2011 Jun 2011 Jul 2011 Aug 2011

Source: IMF, Fitch, Moody’s, Standard & Poor’s

Retailing Trends 39

SPENDING PATTERNS are changing
for mature and emerging markets

TECHNOLOGY is becoming a bigger part
of consumer purchasing

RETAILERS are changing footprints

Retailing Trends 40
PERCENT of CONSUMERS SELF-IDENTIFYING AS “SPEND SHIFTER” 2011

Shopping for “needs” not “wants” will dominate retailing going forward.
Self-identified “spend shifters” cut across ages in mature markets

60%
0.55
0.53
50%
0.45 0.45

40%

30%

20%

10%

0%
United States France Italy Germany

Source: Booze & Co. 2011

Retailing Trends 41
WORLDWIDE LUXURY GOODS CONSUMPTION 2011

Emerging markets will continue to drive
the luxury segment globally in 2011

Source: Bain & Company

Retailing Trends 42
INTERNET AND CATALOG SALES AS A PERCENTAGE OF U.S. TOTAL SALES 1992-2010

Share of internet and catalog
sales in the U.S. is accelerating
similar to Moore’s Law

Source: Cushman & Wakefield Research, U.S. Census Bureau

Retailing Trends 43
GROWTH OF E-COMMERCE 2004-2013

E-commerce is growing faster
$963B
outside of the U.S.
$821B

$681B

$572B

$482B
$429B
$352B

$273B
$211B
$160B

Source: Cushman & Wakefield Research, JP Morgan

Retailing Trends 44
GLOBAL INFORMATION / COMMUNICATION TECHNOLOGY 2000-2010

Mobile commerce
(M-commerce)
will play a dominant
role in E-commerce
Mobile cellular telephone
100 subscriptions
90 Internet users
80
Fixed telephone lines
Per 100 inhabitants

70
60 Mobile broadband subscriptions

50
Fixed broadband subscriptions
40
30
20
10
0
2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010*
*Estimates

Source: ITU World Telecommunication/ICT Indicators Database

Retailing Trends 45
SOCIAL MEDIA AND POPULATION 2011

If Facebook was a country, it would be
the third largest country in the world

CHINA: 1.3 billion

INDIA: 1.2 billion

FACEBOOK: 600 million
U.S.: 310 million

INDONESIA : 240 million

BRAZIL: 200 million

Source: Cushman & Wakefield Research, World Bank, Facebook

Retailing Trends 46

Retailers are changing their footprint to drive
profitability

Polarisation

Flight to quality

Saturation in domestic
markets

Lessons from first Quality of advice
movers

Retailing Trends 47
CONCLUSION

ECONOMY is recovering and consumer
spending is on the rise

SPENDING PATTERNS
have changed

TECHNOLOGY will continue to
affect the way people make
buying decisions and purchases

RETAIL REAL ESTATE formats and
locations will continue to evolve

Cross Border Activity 49

THE CURRENT RECOVERY
has created two tier
economies in the mature
and emerging markets

RETAILERS’ search for sales
in both is accelerating cross
border activity

RENTAL RATE GROWTH, GLOBAL SHOPPING LOCATIONS, JUNE 2010 – JUNE 2011

Growth driven by fierce competition for the
most high-profile locations and aggressive
expansions on behalf of retailers

Source: Cushman & Wakefield Research Main Streets Across the World 2011

GLOBAL RENTAL RATE GROWTH OVER FIVE YEARS

Global retail markets have rebounded, despite the
fragile economic recovery in many countries


TOP GLOBAL SHOPPING LOCATIONS

U.S. and Asia-Pacific markets dominate the list
of World’s most expensive shopping streets


U.S. RETAILERS EXPANDING

EUROPEAN RETAILERS EXPANDING

ASIA PACIFIC RETAILERS EXPANDING

TOP LOCATIONS IN THE AMERICAS

666 Fifth Avenue
New York


TOP LOCATIONS IN EUROPE

Leicester Square
London


TOP LOCATIONS IN ASIA PACIFIC

Pedder Building
Central Hong Kong


Conclusion 59

ECONOMY is recovering and consumer
spending is on the rise
SPENDING PATTERNS have changed
TECHNOLOGY will continue to change the
way people make buying decisions and
purchases
RETAIL REAL ESTATE formats and
locations will continue to evolve

RETAIL REVIVAL is shaping new
cross border strategies

cushmanwakefield.com

THANK YOU - Q&A

HR issues for 2011/2012
Shrinkage in employment legislation?
Prospects for change

Audrey Williams, Eversheds LLP
23 September 2011

Modernising UK Law

• The review aims to:
– “ensure businesses feel more confident about hiring
people”;
– “support and encourage parties to resolve disputes
earlier”;
– Address concerns that weak (and “vexatious”) cases are
plaguing the system;
– ensure employment tribunal cases “move more swiftly
to conclusion”
• Prompted by huge (56%) increase in the number of
employment tribunal claims (236,100 in 2009-10)

Resolving disputes in the workplace
Summary of proposals
• Early conciliation:
– Shortened version of ET1 to go direct to ACAS rather
than ET within statutory time limit;
– Reduction of 12,000 ET claims per year estimated;
– Statutory period of one month for ACAS conciliation;
• The provision of information
– including a statement of loss as required information
• Formalising offers to settle
– tribunal to be able to increase or decrease the amount
of any award where parties have unreasonably rejected
an offer of settlement;

Modernising our tribunals
Tackling weaker cases
• Strike outs:
– To be made at any hearing (not just PHRs) or without
hearing; and
• Deposit orders:
– Similarly to be made at any hearing or without
hearing;
– Doubling maximum level of the order to £1,000; and
• Costs:
– No intention to move to general costs recovery policy;
BUT
– Current cap on costs awards to be doubled to
£20,000; and

Resourcing the system effectively
Charging fees
• Consultation on how best to implement a fees mechanism
is due in Spring 2012

Businesses taking on staff and meeting obligations
• Extending the qualification period for unfair dismissal:
– From one to two years (3,700 - 4,700 fewer claims)
• Financial penalties:
– For employers found to have breached rights;
– Between £100 and £5,000 to be based on the total
amount of the award made by the ET

Agency Worker Regulations 2011

• Gold Plated ? Amendments ?
• Reduce reliance
• Closer monitoring of usage and record keeping
• Commercial renegotiation
• Clearer pay and job structures

International and EU issues: retirement and
gender proposals

23 September 2011

Doing with/without mandatory retirement
Differences of approach
• Jordan and Saudi Arabia
– Employer retirement age: 60 for men; 55 for women but
employment may continue if both parties consent.
• United Arab Emirates
– Retirement driven by work visa approval. Historic
position is 60 years. Recent amendments mean visa
renewals will be provided in usual way until age of 65.
– May be possible to get approval to work longer e.g. up to
70 where there is a skills shortage.

• France
– Compulsory retirement permitted from age 70
– Termination is not automatic, ie employer has to give
notice of the retirement
– Employees aged 65-69 can be offered retirement but
cannot be forced to retire against their wishes

• Germany
– Employees who reach state pension age retire
automatically as long as this is provided for in a contract
of employment or collective agreement
– State pension age = 65
• Will gradually rise to 67 by 2029, beginning in 2012
– No need to 'justify' the retirement
– Ending of employment is automatic so no need to run any
process

• Great Britain
– From 6 April 2011, limited scope for retirement ; default
of 65 repealed – have to justify.
– Northern Ireland:
• Same as GB at present
• Not yet clear whether/when will change
Belgium
• Compulsory retirement not permitted; but
• Notice required to dismiss is reduced to 6 months at
65

• Mandatory retirement permitted at/above a particular
age
– The Netherlands
• possible to terminate employment on the basis of the
employee reaching the state pension age
• State pension age is currently 65
– might be increased to 66 or 67 (proposal for new
legislation pending)

• Termination on grounds of age for younger employees
only possible if can be justified.

• Mandatory retirement permitted at/above a particular
age
– Spain
• As a general rule, mandatory retirement is permitted
at 65 if provided for by the applicable Collective
Bargaining Agreement
– Sweden
• Employer can compel retirement at 67
• The employer can not make the employee retire at a
younger age, except where full disability pension
available

• Mandatory retirement legal; no minimum age

– Ireland
• Employee must have reached employer‟s normal
retirement age for the job
– South Africa
• Employer may dismiss if employee has reached the
normal or agreed retirement age
• Standard practice for employment contracts to contain
a provision prescribing the retirement age.

Female presence on Boards in Europe
35
%age female presence on Boards*
30

25
EU average
20 is only 11%

15

10

5

0
* Boards of larger listed companies, 2009/2010

Female presence on Boards
The role of legislation in speeding up progress
• UK:
– No legislation, pressure through Lord Davies‟ report
setting a 25% target for female Board presence by 2015
for FTSE 100, public target setting by the FTSE 350,
greater gender disclosure and transparency
• Germany:
– No national legislation but renewed discussion on the
possibility of introducing legal quotas
• France:
– Companies have until:
• 1 January 2014 to make their Boards 20% female
• 1 January 2017 to make their Boards 40% female
– It applies to listed companies and companies with an
average headcount, for 3 consecutive years, of 500
permanent employees and a net turnover of at least
€50,000,000

• Spain:
– Since 2007, larger quoted companies have 8 years to
attain 40% females on their boards. Not mandatory until
2015
– A CGC requires an explanation where few female
directors, plus how it will be corrected
• Norway:
– Has a quota – 40% of boards must be women
– Sometimes criticised as being problematic (are women
appointed on merit or to make up numbers?)

• Belgium:
– No legislation
– A CGC requires attention to be paid to diversity
– Current legislative proposals to force 30% quota
• Italy and Austria:
– Quota legislation under discussion
• EU initiative:
– A 2010 warning from the EU Commission: companies
have a year to sort out gender board imbalances, failing
which it may legislate

Recent government announcements
Equality Act
Equality Act (EA):
• Positive action in recruitment and promotion provision, public
sector equality duty in force
• Dual discrimination provision scrapped
• Consultation on third party harassment
• What about gender pay measures?
– 14 September 2011 Eversheds hosted launch of Voluntary
Gender Equality Reporting by Home Secretary Theresa May

Flexibility for all – the government agenda

23 September 2011

Shared parental leave

• Consultation on Modern work placed published on 16 May
2011. The government proposes to:
– Extend right to request flexible working to all (timescale
for introduction to be confirmed)
– Provide more flexibility for men and women to share
parental leave between them
– Current intention is for new parental leave measures to
come into force in 2015

• extend the right to request flexible working to all
employees;

Consumer Protection
Consumer Protection from Unfair Trading
Regulations 2008 – an update

Elizabeth Hyde Eversheds LLP
23 September 2011

Consumer Protection
Consumer Protection from Unfair Trading
Regulations 2008 – avoiding the pitfalls
• in force on 26 May 2008
• harmonises law across EU
• overhauls UK legislation
• applies to commercial practices
• general principle of fair treatment

Consumer Protection
Misleading Practices
Misleading Actions (Regulation 5)

Actions which mislead by:
• containing false information or deceiving (or
being likely to deceive) the average consumer;
• where the false information or deception relates
to specific information set out in the
Regulations;
• And where the average consumer takes (or is
likely to take) a different decision as a result

Consumer Protection
Misleading Actions (Regulation 5)

Relevant information:

• Main characteristics
• existence of the product
• the price or the manner in which the price is
calculated
• the existence of a specific price advantage

Main characteristics

• availability
• composition of product
• method/date of
manufacture
• quantity of product
• geographical origin

Consumer Protection
• What is „misleading omission‟

Practices which:
• omit or hide material information; or
• provide it in an unclear/ambiguous manner; and
• the average consumer takes (or is likely to take)
a different decision as a result)

Consumer Protection
• What is the „Average Consumer‟

• reasonably well informed, reasonably observant
and circumspect

Consumer Protection
Aggressive Practices
What are aggressive practices?

CPR prohibit practices which:
• by harassment, coercion or
undue influence;
• significantly impair freedom
of choice/action; and
• cause the average consumer
to take a different decision

Consumer Protection
Aggressive Practices
Factors suggesting an
aggressive practice

• timing, location, nature or
persistence
• threatening/abusive behaviour
• exploitation of specific
circumstances

Consumer Protection
Banned Practices

• Schedule 1

• 31 specific practices deemed
unfair in all the circumstances

Consumer Protection
General Prohibition

Commercial practice is unfair if:

• it is not professionally diligent; and

• it materially distorts, or is likely to materially
distort the economic behaviour of the average
consumer

Consumer Protection
Offences

• fines
• time limits
• individual liability
• defence

Consumer Protection
Due Diligence Defence
Offence due to
• mistake;
• information;
• act/default of another;
• accident; or
• cause beyond control
and due diligence applied

Consumer Protection
Avoiding the pitfalls

Systems and procedures
Training of staff
Audits
Monitoring complaints

Consumer Protection
Case law update

Consumer Protection
Lapland New Forest Park

• Snow-covered Lapland village
• ‘Where dreams really do come true’
• ‘it would light up those who most loved
Christmas’
• ‘where we have prided ourselves on attention to
detail’
• ‘We can assure you of an absolutely magical
scene’

Consumer Protection

• Victor Mears, 67 and Henry Mears, 60
• £30 per ticket – 42,000 tickets sold
• £1m advance ticket sales

• Action taken by Dorset Trading Standards
• Charges of misleading public

Consumer Protection
• 13 months imprisonment
• Large number of people affected
• Target was families with children in the run up to
Christmas
• High sums of money involved
• Judge said they showed, not one „scintilla of remorse’

Consumer Protection
Powys v Rebo Limited

• January 2011
• „Sale‟
• Products never offered at higher
price
• Eight offences
• £12,000 plus £2,625 costs

Consumer Protection
The Office of Fair Trading v Purely Creative
Limited
• First High Court decision
• Scratch card gave the consumer the impression
they had won a prize
• OFT applying for an order to prevent sale

• Misleading actions and omissions
• Breach paragraph 31of Schedule 1

Consumer Protection
Limited
• Paragraph 31 of Schedule 1
• „Creating the false impression that the consumer has
already won, will win, or will on doing a particular act win,
a prize or other equivalent benefit, when in fact either –
• (a) there is no prize or other equivalent benefit, or
• (b) taking any action in relation to claiming the prize or
other equivalent benefit is subject to the consumer paying
money or incurring a cost’.

Consumer Protection
Limited
Court said..

• The requirement to pay for a nominal rate call to collect
prize was not misleading
• minimal cost e.g. postage stamp or nominal rate call or
money that did not reach the promoter's pocket
• promoter must not receive payment to off-set the cost of
the prize

Consumer Protection
Limited
• Average Consumer
• reasonably well informed, reasonably observant and
circumspect
• ‘consumers who take good care of themselves should be
protected, rather than ignorant, careless or hasty
consumers’
• Court ruled that whether the Average Consumer would
read all the terms and conditions will depend on the
circumstances

Consumer Protection
Ofgem Investigations
Doorstop Selling
• Concern of mis-selling
• Pressure
• Many companies
suspending doorstop
sales

Consumer Protection
Dealing with the Regulators
•Trading Standards powers to obtain documents

•Offence of obstruction

•Privilege

•Time limits for prosecutions

Competition law and land agreements
The new regime

Adam Collinson, Eversheds LLP
23 September 2011

Outline

• The new regime in a nutshell
• A more detailed look at the key prohibition
• Risks (and opportunities)
• Where will the prohibition bite?
• Assessing whether a land agreement is likely to be
caught
• Quick case studies
• Questions

The new regime in a nutshell

• Restrictions in agreements relating to land are now
subject to normal UK competition rules on restrictive
agreements
• The rules catch not just new agreements but pre-
existing ones as well
• Restrictions in these agreements could be void and
unenforceable where they constrain competition on a
market (and there may be other consequences
besides)
• In turn that may lead to changes in the nature of the
trading environments enjoyed by retail outlets

Background

• Chapter I Competition Act 1998 (which prohibits
restrictive agreements) was originally rendered
inapplicable to many types of land agreement by the
Land Agreements Exclusion Order (LAEO)
• The 2006/8 Competition Commission investigation
into grocery retailing led to a review of the exclusion
• The LAEO was repealed with effect from 6 April 2011
• The OFT issued guidelines in March 2011
summarising how competition law can apply to land
agreements in the UK
– http://www.oft.gov.uk/shared_oft/consultations/land-
agreements/land-agreements-guideline.pdf

Chapter I Competition Act 1998

CHAPTER I PROHIBITS:
• Agreements between “undertakings”
• Which have as their object or effect
• The appreciable restriction of competition
• On a relevant market
• And have no redeeming features which would justify
their exemption

Consequences of infringement

• Infringement carries the risk of (among other things)
– Investigation and fines (no fine may be imposed in
respect of the period prior to 6 April 2011)
– Disqualification of directors
– Actions for damages from those who suffer loss as
a result of the agreement
• But in most cases
– Unenforceability will be the primary risk (or
opportunity)

Where will it bite?

• Unlikely to bite
– Normal property clauses (service charge, alterations,
repairs, hours of use, etc)
– Restricted user clauses (unless the landlord is also
active in the tenant‟s trading market)
• Might bite
– Exclusivity arrangements, restricted user clauses
(where the landlord is also active in the relevant
market), freehold restrictive covenants
• Certain to bite
– Price fixing provisions

Assessing land agreements (1)

• Relevant markets in which competition takes place
– Product / service scope
– Geographic scope
• Rationale for restriction
• Appreciability of restriction / foreclosure effect
– Market structure / market shares
– Duration of restriction
– Availability of other suitable premises nearby from
which to undertake the relevant activity (special
characteristics required / planning restrictions) ?


• Enforcement priorities in relation to land agreements
mean OFT will focus on
– agreements between competitors
– agreements where there is market power (a
market share above 30%)
• OFT will assume that market share is less than 30%
(and market power doesn‟t exist) wherever there are
four or more independent retail fascias (including the
beneficiary of any restriction) operating on a market
• But this doesn‟t preclude aggrieved companies
pursuing matters independently


• NB the position can change over time so agreements
can slip in and out of infringement (need to monitor?)
• If a restriction of competition is not appreciable there is
no infringement
• If it is appreciable the agreement may still merit
exemption if
– The agreement produces efficiencies
– There is no less restrictive way of attaining those
efficiencies
– A fair share of the benefits flowing from the
agreement will accrue to consumers
– The agreement does not eliminate competition

Case Study One

• You are legal counsel for a successful department
store
• The business lets some space to concessions of
branded products which compete with certain
products the department store sells
• The current draft of the lease contains a clause
requiring the concessionaire
– only to offer reduced prices when the department
store is having a sale (and at those times not to
sell at prices more than 5% lower than the prices
of equivalent products in the department store)
– at all other times to sell at full price

Case Study Two

• You are legal counsel at a leading operator of wine
bars which has an existing bar in the Greek Street
area of Leeds city centre (a very popular eating and
drinking area)
• Other operators are keen to get a position in this
area
• The business wants to sell the wine bar and impose a
restrictive covenant against future use as a wine bar

Case Study Three

• You are legal counsel at a chain of electrical stores
• The business is keen to gain entry to a relatively
new but very successful out-of-town retail park
• The landlord has refused you a lease to the soon to
be vacant unit claiming the terms of another lease
prevent him letting to another electrical store

Underlying concepts to remember

• Agreements containing price fixing restrictions will
always be unlawful and problematic
• As regards other agreements
– Restrictions of competition not restrictions of activity
are what is important
– To assess these restrictions focus on
• Relevant markets in which competition takes place
(product / service and geographic)
• Structure of those markets (market shares and
number and identity of other competitors)
• Rationale for / justification of restriction
• Market power / extent of foreclosure

Dealing with the social media explosion
The HR dimension

James Bull, Eversheds LLP
23 September 2011

Issues involving the use of social media in
recruitment

• Advertising vacancies
- websites
- using smart phones to attract interest
from target audiences
• Reducing bureaucracy and saving costs
• Potential to exclude social groups
• Discrimination

Issues involving the use of social media
during the life of the employment relationship

• Performance management – productivity
- excessive personal use of internet or emails
via work computers or smart phones,
including use of Facebook and Twitter
• Conduct
- derogatory comments about the employer or
customers & bringing the company into
disrepute (Taylor v Somerfield and Preece v
JD Wetherspoons)

Issues involving the use of social media
during the life of the employment relationship

• Conduct
- bullying and harassment of fellow colleagues
- discriminatory remarks (Gosden v Lifeline
Project Limited)

Risks of IT misuse and abuse by employees

• Damage to reputation
- derogatory statements
- bringing the business into disrepute
• Security
- breach of the Data Protection Act
- disclosure of confidential information
• Tribunal claims
- discrimination
- third party harassment

Employees duties to the employer in terms of
confidential information
• Implied duties
- to act honestly towards the employer
- to disclose to the employer all information
relevant to its business
- not to make secret profits from the
employer‟s business
- to respect the confidentiality of the
employer‟s business information
- not to compete with the employer‟s business

Employees duties to the employer in terms of
confidential information

• Express duties
- contractual clauses
• Whistle blowing

The need for clear internal policies on the
use of social media forums
• Preserving good business relationships and
promoting a positive business image
• Having a clear policy
- restricting the use of employer‟s IT resources
- restricting the use of smart phones during
work
- restricting employee use of confidential
information
- prohibiting bullying, harassment and
discrimination

The need for clear internal policies on the
use of social media forums
• Having a clear policy
- prohibiting negative comments about the
employer, its customers, suppliers and
employees
- making clear to employees that social media
messages may reflect on their employment
• Training
- awareness and understanding of the policy
• Disciplinary procedures

Dealing with the social media
explosion
Reputational Risk & Advertising Issues

Andrew Terry, Eversheds LLP
23 September 2011

What do we mean by social media?
• A “conversation” v “one-way traffic”
• Wide ranging:
– Social and business networking sites
• e.g. Facebook, LinkedIn, MySpace, Bebo
– Blogs: a “web log”
• e.g. Twitter, Blogspot, Square Space
– Digital media sharing
• e.g. YouTube, Flickr, Slideshare
– Wiki
• BUT much overlap and rapidly changing
• AND your own website

Areas of corporate risk
• Another means of corporate communication BUT
lack of control, brevity and casual use increase
reputational risk:
– defamatory comments
– misleading advertising
– disclosure of private information
– employee misconduct
• Manage by:
– adopting appropriate internal policies
– reviewing regularly
– devoting adequate resources
– complementing established marketing

Third party comments

• Monitor third party sites for damaging comments
and IP infringement
• Monitor sites/content under your control (even
though you may lose “intermediaries” defence)
• Identify and communicate with disaffected
customers
• Internal response team
• Legal intervention
– Defamation law
– Notice-and-take-down procedures
– Privacy rights

Defamation

• Wide protection – any statements which make
readers think worse of a person or organisation
• Publication
• Balance of power in Claimant‟s hands
• Defences available (justification, fair comment,
qualified privilege)
• Aim – vindication (damages, apology, retraction,
costs)
• Clear potential for vicarious liability

Notice-and-take-down procedures

• Defamation actions: author, editor, publisher
– Identifying the author
– Likelihood of relief against bloggers etc
– Position in meantime
• Role of ISPs and other “intermediaries”
– E-Commerce Regs 2002 (Reg.17-19) -
defence for mere conduit, caching or hosting if
no actual knowledge
– s. (1) Defamation Act - if not an author,
publisher etc and no reason to believe
defamatory
– May lose protection if have editorial control
• Put on notice (including for IPR infringers)

Privacy rights
• Right to respect for private and family life, home, health and
correspondence – Article 8 ECHR
(1) Is it private information?
(2) Is there a reasonable expectation of privacy?
(3) Is there a genuine public interest?
• “Private Information”
– emotional relationships / family / friends
– job performance
– business information
• Injunctions v “Super Injunctions”

ASA : online remit extension

“Advertisements and other marketing
communications by or from companies,
organisations or sole traders on their own
websites, or in other non-paid-for space online
under their control, that are directly connected
with the supply or transfer of goods, services,
opportunities and gifts”

• Primary intent is to sell something though not
necessarily immediately
• Has it appeared in the same or very similar form
in third party space?
• New sanctions – enhanced name and shame,
removal of adverts

ASA : user generated content

• UGC is content created by private individuals –
outside remit
• But UGC falls within remit if adopted and
incorporated within own marketing
communications
• Customer reviews – inside or outside remit?
• Content excluded from remit extension:
– press releases and other public relations
material
– editorial content
– natural listings
– heritage advertising

Content of social media policies

• who writes the copy?
• tone of company “voice”?
• what is the posting process from inception to
publication?
• how often do you update or post?
• who monitors and how often?
• policing in moderation (abuse v negative
comments)
• correcting mistakes quickly
• ensure enforcement is uniform

Using Social Media as a Promotional
Tool

Mary Kelly, Eversheds LLP
23 September 2011

Social media trends across markets

Social media: a few facts
Half of the 29 million 500,000,000
Facebook subscribers in
the UK check their page at The number of global
least once a day users Facebook reports
they have registered
- PWC

One out of every five Social media
minutes online is advertising spend will
spent on social increase 400% by the
media related sites year 2014
- Nielsen - Forrester

It took Facebook 3
Facebook valued years to reach
at $50 billion worldwide audience of
50 million - and another
- PWC four years to reach over
half a billion

Retail marketplace pressures and the
use of social media
Social media opportunities

Some examples of retailers‟ use of
social media

Some examples of retailers‟ use of
social media (Continued)

What do consumers want from digital
marketers?
…Create value for consumers… keep it exciting

…one of the main reasons
customers site for „friending‟
a corporate Facebook page is
to get access to special offers
and sales discounts.
- E&Y Reaching Consumers Globally
May 2011

Running promotions on social media…
…Terms and conditions

Running promotions on social media…
…Regulations and Codes of Conduct still apply
• Gambling Act 2005 (different regime in Northern
Ireland)
• Consumer Protection from Unfair Trading
Regulations 2008
• UK Code of non-broadcast Advertising, Sales
Promotions and Direct Marketing (“CAP Code”)
… however, regulations are not harmonised
throughout the EU

Social media platform terms and
conditions…
…What you need to be aware of
Facebook You Tube Twitter
Promotions Guidelines
• Release and disclaimer of • Must provide • Possible to use
Facebook liability participant ability to „Retweet‟ as a
• Methods of entry using a read rules of entry condition of entry
Facebook platform before they enter a • Must provide a link to
• Facebook cannot be used as competition/ promotion terms and
a means to notify winners of promotion conditions
a promotion • Entry to a promotion
• Promotion cannot use must be free/no
Facebook functionality, eg money requirement
„Like‟ button as a voting • Promotions must
mechanism indemnify YouTube in
• Third party advertisements respect of any
prohibited contests/promotions
run on YouTube
• Must not incorporate any
functionality that identifies
which users visit a page/
promotion

Social media promotions
Case study: Timberland Trail of Heroes

Social media promotions (Continued)
Timberland Trail of Heroes - Features
• Part of Timberland‟s 2011 “Nature Needs Heroes”
marketing strategy - its biggest environmentally
focused marketing campaign
• Geocache contest run through Facebook and
website
• Collaboration between Timberland, ad agency and
Groundspeak - a Geocaching community website
• Run in 6 European cities at the same time
(London, Milan, Paris, Madrid, Berlin and Brussels)
• Consumers register themselves as members of the
geocaching community and log individual caches

Timberland Trail of Heroes - Lessons
• Ensure the mechanics of the promotion are clearly
described and comply with all relevant social media
platform terms and conditions
• Where time and location are key to the promotion
ensure it is consistent in each time zone
• Be clear as to what data is to be provided by a
participant, how it is to be used and that appropriate
consents are provided
• If complex, test it out on a smaller restricted number
of users. Timberland trialled the promotion with the
blogging communities
• Get country specific legal review

Examples
• Fashion retailer
Facebook quiz wanted
to share results
instantaneously on
Facebook page. Site
already built by
agency. Led to wasted
costs.

Conclusion
• Understand and participate in the development of
your social media and promotional strategy
• Engage with your marketing and social media
colleagues early in respect of the mechanics and
terms of promotions
• Ask lots of questions as to how promotions will
operate - regulations still apply to social media in
the same way as more „traditional‟ promotions
• Your contribution may save time, money and
reputation - and enhance the use of social media
as a promotional tool

Google AdWords
The current state of play

Kaisa Mattila, Eversheds LLP
23 September 2011

Google AdWords
Introduction
• Continuing “hot topic” among retailers
• Evolving area of law – several recent decisions
• AdWords = allows traders and businesses to
purchase keywords to trigger the display of a
„sponsored link‟ advertisement whenever an
internet user searches for the selected keyword.
• Controversy: registered trade marks freely
available for any advertiser to purchase as
keywords

• Distinguish NATURAL results from ADWORDS

Google AdWords
What is their significance…
• … for online advertisers?
– Capture Internet traffic interested in similar products /
services
– Communicate sales of branded products

• … for trade mark owners?
– Diversion of trade = lost sales
– Customer confusion & counterfeits
– Loss of prominence & higher advertising costs

• … for Google?
– Huge revenue source – 97% of US$28bn in 2010

Google AdWords
The trade mark law angle
• Brand owners: use of trade marks as AdWords
amounts to trade mark infringement both by the
advertiser and by Google
– Use of identical sign (usually)
– In the course of trade
– In relation to goods/service which are usually identical
to those protected by TM registration
– Also possible dilution & free riding on reputation of well-
known brand
• Distinguish between TRIGGER ONLY use and
AD TEXT use

• TRIGGER ONLY USE vs. AD TEXT USE

Google AdWords
• ‘Use’
– Google is not “using” TMs by offering them for sale as
advertising keywords or by displaying the
advertisements = no infringement
– Advertisers, however, do “use” the TMs in the course of
trade in relation to products / services when selecting
them as AdWords so capable of infringing.
• Infringement by advertisers
– Only if damages the „core function‟ of the trade mark
as a guarantee of trade origin (in other words, is liable
to lead to confusion)
• Cases: Louis Vuitton Malletier SA v Google France; re-affirmed in Die
BergSpechte Outdoor Reisen v Gunter Guni & ors (both March 2010)

Google AdWords
• Potential damage “if the advertisement does not enable
normally informed and reasonably attentive internet
users, or enables them only with difficulty, to ascertain
whether the goods or services referred to by the ad
originated from the trade mark owner or an undertaking
economically connected to it”
– “Normally informed?” / “Reasonably attentive?”
– “Only with difficulty”?
• A question of fact to be determined by national courts on
a case-by-case basis
• Little guidance from the European Court

Google AdWords
• Potential liability for Google if not exempt under E-
Commerce Directive as Information Service Provider!
– Would need to be acting as a mere information
storage/transfer service with no active role, knowledge
or control over the content of the information
stored/transmitted on behalf of the end user
• Extent of Google’s involvement a matter for national
courts on a case by case basis
– Could be held liable for AdWord use by an advertiser if
a brand owner brings unlawful content /activities to
Google‟s attention and it fails to act expeditiously to
remove that content
– Note: depends on the activity itself being unlawful!

Google AdWords
Likely developments
• Interflora v Marks & Spencer – Opinion of the Advocate-
General of the European Court:
– M&S infringed the Interflora trade mark by purchasing
INTERFLORA as an AdWord (Internet users might
believe M&S was part of Interflora‟s sales and delivery
network given Interflora‟s unusual business model)
despite the word not appearing in the ad text
– AdWord use is also capable of:
• diluting the reputation of trade marks to become generic
terms; and
• taking unfair advantage of their reputation
provided that the TM appears in the actual ad text.

Google AdWords
The way forward
• Advertisers: unclear scope of what could amount
to infringement – increased caution, particularly
with ad text use
• Warning sounded to Google re: ISP liability
Steps to take:
– “Test searches”
– Report unlawful/confusing use to Google
– Report any counterfeiters to Google
– Write to advertiser?
– Exercise caution when using AdWords yourself!

Google AdWords
Google’s current AdWords policy
• Does not prevent the selection of TMs as keywords in
the EU/EFTA
• Will only investigate ad text in response to brand
owners‟ complaints and will only carry out a “limited
investigation” into whether the keyword combined
with the ad text is confusing as to the origin of the
goods being advertised
• If satisfied that there is potential confusion, will take
down the advert
 Parallels to decided cases: focus on confusion
 Possible impact of forthcoming Interflora decision?

Google AdWords
Any questions?

Thank You!

Kaisa Mattila
Solicitor, Intellectual Property Group
kaisamattila@eversheds.com

IT Procurement & Retail

Bruce Cairns & Mike Gladwin, Eversheds LLP
23 September 2011

10 Key Contracting Points
No. 1 - What are the deliverables?
•specifications

•tender documents and requirements specifications

•change control

No. 2 - What rights do you get?
•software licences

•group usage

•contractors

•types of licence

No. 3 - When will you get it?
•project plans

•milestones

•liquidated damages

•walk away rights

No. 4 - How much will it cost?
•link payment to milestones and acceptance

•fixed charge?

•avoid time and materials

•avoid cost elements “to be agreed”

•rate card

•avoid uncapped increases

No. 5 - Acceptance tests
•agreeing test criteria

•customer participation

•end to end and modular

•integration with customer systems

No. 6 - What if it goes wrong?
•damages

•termination

•liquidated damages

•service credits

•liability caps

No. 7 - Customer Group issues
•what is the current group?

•dealing with changes to the group

•assignment

•outsourcing service providers

No. 8 - Data protection
•your risk as data controller

•contractual obligations on data processor

•outside EEA?

•liability caps for breaches

No. 9 -Service descriptions & service levels
•support and maintenance

•clear descriptions

•clear service levels

•bronze or platinum?

No. 10 - Unravelling the deal
•exit planning

•software licences post termination

•ongoing support

•replacement services

•has the supplier got you by the throat?

Annual Retail Conference Data
Protection Update – Issues for 2011/12

Cookies – Have you got the right recipe?

Elaine Fletcher, Eversheds LLP
23 September 2011

What‟s New?
• Privacy and Electronic Communications (EC
Directive) (Amendment) Regulations 2011
• Storing information on user‟s terminal and
accessing it
• Mainly but not just „cookies‟
• Information does not have to be „personal‟ or
„identifiable‟
• Still have to comply even if anonymous,
aggregated or statistical
• Additional to Data Protection Act 1998

What has changed?

• Clear and comprehensive information on purpose
of cookies
• Pre 26 March 2011 – providing opportunity to
refuse them (known as „opt out‟)
• From 26 March 2011 – giving prior consent to
use them (known as „opt-in‟)

What does this mean?

• You have to obtain the user‟s „freely given and
specific indication of agreement‟
• Explanations of use of cookies to be clearer,
more specific, and more granulated
• Browser settings probably not adequate yet –
requires level of explanation and selection
beyond current standards
• Repeat consent not required once consent
obtained on first website visit, BUT
• New consent for each change of cookie use

How is consent obtained?

• Pop up boxes
• Acceptance of suitable terms and conditions
• Check out the ICO‟s wording at www.ico.gov.uk

The ICO would like to use cookies to store information on your computer, to improve our
website. One of the cookies we use is essential for parts of the site to operate and has already
been set. You may delete and block all cookies from this site, but parts of the site will not work.
To find out more about the cookies we use and how to delete them, see our privacy notice.

[ ] I accept cookies from this site. [Continue]

What practical steps are needed?
• Engage with e-commerce teams and identify:
– Each and every cookie used – is it deleted when
browser closed?
– What each one does – what information is
collected, is it identifiably linked?
– Why it is used – site essential cookies vs improved
experience/ enhanced service
– Whether the business still needs uses/ needs it
• Review and revise website privacy policies and
incorporate consent mechanisms
• Check ICO website for emerging guidance

Reasons to comply

• ICO‟s usual enforcement powers
• Civil Monetary Penalties now extend to cookie
requirements (up to £500k)
• ICO increasingly asking to audit businesses
• Customer confidence
• ICO won‟t enforce for 12 months IF actively
trying to comply

The International Management of
Disputes
Issues for Retailers

Richard Little, Eversheds LLP
23 September 2011

Retail: implications of international
expansion
• Opportunities abroad in expanding businesses

• Managing business in multiple jurisdictions

• Impact of relevant local laws on effective
operations – from start to finish

Key considerations

• Contractual protections when establishing
operations overseas

• Preparation for and termination of contracts

• Strategy and tactics in international dispute
resolution

Laying the Groundwork…..

• Structuring the operation – balancing control,
capital and risk
- own branch?
- franchise?
- concession?
- agent/distributor?

• Research relevant jurisdiction – need for
approvals/licences

Contractual Protections
Anticipating potential risk
• Ensuring your contract works for you:

- Retaining control over operations
- Ownership of stock and premises
- Termination provisions
- Choice of governing law and dispute
resolution clauses

• Effective drafting reduces risk of costly disputes

Jurisdiction

• May impact upon choice of structure
- mandatory provisions in certain
jurisdictions

• Consider jurisdiction clause in contract

• Specify applicable law

Principles of Contractual Interpretation

• UK position - Court gives a document its
ordinary meaning unless there is a clear mistake
on its face. Admissible background evidence
limited to factual matrix.

• Contrast other jurisdictions – importance of
retaining paper trail of any discussions.

• Ensure tight drafting – use a second pair of eyes
for a “sense check”

Preparing for termination

• Early preparation is key - find out what is
happening on the ground

• Issues to consider:
- stock
- premises
- local licences
- employees

• Practical implications

Terminating contracts

• Importance of clear contractual terms

• Managing an effective exit:
- Know your contract
- Awareness of “on the ground” performance

• Consider relevant applicable law

• Compile any necessary evidence

Terminating Contracts

• Is pre-action correspondence appropriate?

• Is injunctive relief available?

• Mandatory application of local jurisdiction?

• Consider local law position on disclosure,
privilege, confidentiality etc

Strategy and tactics in international
dispute resolution
• Retain appropriate local team

• Project management of disputes
- particular logistical difficulties of working
cross-border

• Appropriate use of technology

International Retail Conference Focuses on Global Trends

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