How would you describe RPC’s retail offering?
Our retail group is one of the five strategic focuses of the firm. It sits at the very heart of what we do.
It’s one of the biggest and most comprehensive retail practices in the City. We have the necessary scale. There are more than 70 core people in the retail group, over 30 of whom are partners. We have intentionally kept a reasonably high partner leverage.
We are ranked number one in the leading directory that ranks retail, and I would say our practice is distinguished by how genuinely dedicated it is to the sector.
We have found that combining that market knowledge with a thorough understanding of our clients’ individual business requirements has enabled us to build a leading reputation based on delivering the right commercial outcomes.
We are truly immersed in it, as exemplified by our award nominated specialised retail training programme we run for the sector group, through to offering flexible secondments, so we can get to the heart of the challenges retailers face.
We are pro-retail and proud of that. We try in our own way to stand with our clients to share their problems, assist them in dealing with the pressure points and support them in exploiting opportunities.
What is the market like right now?
It’s been brutal but there are signs of opportunity. There was a lot of distress in the retail marketplace even before Covid. The current business rates model for example was widely considered not to be viable for many retailers, which led to some businesses starting to shut parts of their operations. That has only been exacerbated and escalated by the pandemic.
For some businesses it took some time to truly embrace developing their online offering or in some cases even starting one.
Our group have seen our clients explore insolvencies, restructuring, changing the customer interface model or otherwise digitally transforming their businesses, and encouragingly there is definitely a positive side where retailers are exploring new business models and innovating more quickly in a way that is better suited to the current market. John Lewis, just as an example, is looking to give customers local access by trying a model of opening smaller more local stores.
Have law firms had to adapt?
Absolutely. We are now seeing clients expecting that their lawyers truly know their sector and appreciate what the market conditions are like and the solutions that are out there.
This year we have had more clients asking us what I would call real time ‘market state’ questions than ever before. Clients want to know what’s going on in the market, who is opening when and what type of concept? So you need to be specialist – otherwise you can’t add enough value in a market where people naturally want real value from their legal spend.
What is the future of RPC’s retail offering, considering the market?
We are looking to be recognised as the number one in our market. Not just in the short term, but for years to come.
As a result, we are looking to invest heavily in people and technology to support the transformation that is already happening in retail.
‘We try in our own way to stand with our clients to share their problems, assist them in dealing with the pressure points and support them in exploiting opportunities.’
Jeremy Drew, RPC
For some that might seem counter intuitive – but when you look at the numbers, what’s happened in the retail sector is that retail has in effect just shifted venue. Bricks and mortar stores in certain categories have had big hits from closures but online sales channels and essential stores such as grocers have expanded dramatically to take up that demand. The total market has not reduced in the way it might seem.
We have chosen to run into the storm, recruiting heavily during the pandemic, as we are committed to supporting retail.
Who are the winners and losers in the market right now?
Anyone with a strong online presence is doing well.
Those who have done worse or struggled most are those with tired shop formats with no or low online presence.
Covid-19 also led to behavioural shifts, eg a growth in interest in DIY, which means those companies are doing very well. The food retailers have also been doing great, keeping our F&D team busy.
The eGaming market direct to consumers has been on fire.
Has the legal market been guilty of dropping the ball in the past in relation to the eGaming market?
I do not think the legal market has ‘dropped the ball’, but its fair to say those that saw the potential of the market, knew it was only a matter of time before we would see huge activity.
I did a presentation on the growth of the retail market including eGaming around three years ago. I had a few people come up to me after the presentation saying, ‘Oh I never really thought about the eGaming market’, but when you consider that it is now bigger than music and film put together….
Historically there have always been high profile video or eGaming disputes.
I went to the Rocket League World Championships with my son a few years ago and it was incredible. The enthusiasm towards the sport is spectacular. It’s a truly international market with few boundaries and already very diverse, with a rapidly growing fan base across all genders.
Many law firms are now looking at eGaming, but those that have been in the market for a while are doing well and looking to grow. We have done a number of high-profile eGaming matters recently.
Outside of Covid, what other disputes trends are on the horizon for retail?
I expect to see a growth in two areas for certain:
First, group action cases.
Those actions commonly arise out of competition issues, where businesses may have experienced the affect of allegedly anti-competitive behaviours.
Our firm was recently involved in the heavily publicised MasterCard case relating to exchange charges that affected retailers.
Secondly, cyber and data cases will also be even more prominent. It is not an issue that is going to go away. We are involved in some very high-profile cases as the legal position and market continues to evolve. Our cyber response team has never been busier.
Jeremy Drew is RPC’s co-head of retail.
Recent RPC Retail Disputes
Brand Max (TK Maxx dispute)
RPC advised Frasers Group (formerly Sports Direct) in defending claims for trade mark infringement and passing off brought by retailer TK Maxx, arising out of the use of the name ‘Brand Max’ in respect of a chain of stores. In addition to the High Court proceedings issued in England in October 2018, there were also satellite disputes in trade mark registries worldwide. The proceedings settled midway through the (virtual) trial in June 2020.
Visa/MasterCard – group action litigation
RPC acted for a number of large groups of claimants from a variety of industries including retail, in the well-publicised multilateral interchange fee (MIFs) litigation case against Visa and Mastercard.
Kout Food Group and Kabab-ji
RPC acted for Kout Food Group (a substantial Kuwait-based business that owns and operates a number of well-known food franchises) in respect of a Paris-seated ICC arbitration brought by Kabab-ji (a Lebanese franchisor) for breach of contract.
The matter is ongoing and raises important issues concerning the proper construction of arbitration clauses (which led to the landmark decision of the English Court of Appeal, which refused to recognise or permit enforcement of the ICC award in this jurisdiction, which was nominated for ‘most important decision’ award at the 2020 Global Arbitration Review Awards), and as such the proceedings are now subject to simultaneous appeals this year in the French Cour de Cassation and English Supreme Court.