Sidley is a proud sponsor of the Retail Industry Leaders Association’s annual Retail Law Conference.
On October 26, Sidley partner Amy Lally moderated a panel titled “Avoiding ‘Dark Patterns’ While Meeting Consumer Demand and Preferences in Online Shopping Experiences” featuring Colleen Theresa Brown, partner at Sidley; Mary Engle, Executive Vice President, Policy at BBB National Programs; and Lara Liss, Vice President and Global Chief Privacy Officer at Walgreens Boots Alliance. The session explored (1) the scope and meaning of “dark patterns” in online commerce, (2) best practices for avoiding dark patterns and complying with state auto-renewal laws and the federal Restore Online Shoppers Confidence Act in the design and implementation of auto-ship programs, and (3) best practices for avoiding dark patterns in designing and implementing privacy choices and complying with the California Consumer Privacy Act (CCPA).
Recent studies on consumer behavior have shown that consumers place increasing importance on convenience in shopping and predictability in delivery of goods (especially in the aftermath of the COVID-19 pandemic). Auto-ship options meet this consumer need by allowing consumers to place one order for desired products to be repeatedly delivered on a set schedule. When designed and implemented properly, these programs benefit consumers and companies by facilitating the efficient and predictable delivery of valuable goods to consumers who want them. But public prosecutors (at the state and federal level) and class action plaintiffs are increasingly scrutinizing these programs to ferret out so-called “dark patterns.” Dark patterns is the pejorative term used to describe digital designs and marketing practices designed to deceive consumers into making decisions that they would not have made in the absence of deception. Dark patterns are not limited to digital tricks that dupe consumers into making an unwanted purchase, but extend to any digital trap that causes consumers to click or consent where the consumer would not have otherwise clicked or consented in the absence of deception. Specifically, recent amendments to the CCPA specifically ban the use of dark patterns in connection with CCPA opt out requests.
Colleen Brown also led a roundtable discussion titled “Strategies to Mitigate Risk from Cookie-Based Litigation” featuring Ryan Parley, Vice President and Assistant General Counsel at the Neiman Marcus Group. The session featured conversations surrounding recent putative class action litigations alleging that session replay violates state all-party wiretap acts, all-party consent laws, various usage of cookies by retail companies, and strategies to minimize the risk of session replay litigation, among others.
As the premier event for retail corporate counsel, the Retail Law Conference attracts general counsel and other top in-house attorneys from the leading U.S. retailers. Attendees connected with senior-most retail corporate counsel, as well as elite outside counsel. Having represented retailers for decades, Sidley has built a reputation for successfully handling complex and multidisciplinary transactional, regulatory, and litigation matters spanning a range of legal areas. Our expansive experience in the retail industry, along with our lawyers’ frequent research and publication on industry trends, allows us to provide thoughtful advice for the myriad legal and business challenges that retail organizations face.
Additional information on RILA can be found here.
