Retailing in a Time of Greater Uncertainty

Alan Behr, Phillips Nizer LLP Partner and Fashion Practice Chair

There have been unique challenges for retailing since not long after Amazon.com first went live, but a worldwide disruption of supply chains and temporary but extended closures at points of sale is outside of all prior international experience. True, there had been speculation about such things one day happening, but it was almost always voiced in the context of war or terrorism, not disease. So no one should be surprised that contingency plans were not made to handle massive disruptions due to a microscopic, life-threatening menace. Similarly, no one with whom a retailer might now seek to renegotiate an existing agreement or otherwise alter a working relationship can claim not to understand the retailer’s problems or to insist that he or she knew better.

True, all consumer-facing businesses have similar challenges, but fashion and accessories retailing is unique in one key respect. If you own a restaurant and are forced to shut or to confine yourself to takeout and deliveries, the inventory you will lose will be, in the main, whatever was stocked for a few days at most. Fashion retailing, on the other hand, is a seasonal business, and if the store is forced—by order or by conscience—to shut for any length of time, imprisoned within it are this season’s goods—things that have to be sold or otherwise cleared out before the next season begins. The retailer may have a plan that indicates at each point along the way when each item will be discounted and by how much, but none of that is particularly useful with the doors shut. And if capital is an issue, as it is for many of us, if you cannot sell what you bought for spring/summer, it could be hard, if not impossible, to pay for what is scheduled to come in starting in late summer for fall/winter. And the incoming merchandise that, if you can pay for it and sell it in the ordinary course, will help get you out of this hole—as long as disrupted supply chains (notably from China and Italy) do not force you to tear up those plans as well. Of course, there is the no-less-critical problem about idle staff, particularly what to do about salespeople who live largely or wholly off commissions.

Modifying Shakespeare’s famous remark in a more pro-social way: in times like this, the first thing we do is call the lawyers. That is because a unified plan, formed around potential legal strategies and mindful of legal risks, is the best way to handle any multi-tiered crisis. Those tiers include the need to address, and seek to work out compromises for, vendor contracts, union contracts, employee relations, leases, insurance policies, utilities and maintenance agreements, government relations and public relations. Just as the business solution is not as simple as throwing all your inventory online and hoping for the best, a legal solution is not something that can be tossed out as a quick fix. Speak to counsel now, before the problems become financially daunting, and work out a plan that prioritizes your concerns and examines your potential responses based on best-case and worst-case scenarios. Are employees your first concern? Are they asking what personal time off means in the context of mandatory leave? That is for review with labor counsel now, we would suggest, not later. The landlord wants assurances that the rent will be paid? In fact, even if he or she has not yet asked, if that appears to be a challenge, the question should be discussed in advance with real estate counsel. And so on down the list. If ever there were a time when the ounce of prevention is the worth that pound of cure, we have all reached it now.