State Attorneys General are not the only ones enforcing price gouging laws in the current pandemic. Many states also provide a private right of action for victims of price gouging. Depending on the state, private litigants may seek injunctions, civil penalties, or even damages under state price gouging statutes and consumer protection laws. These remedies, and recent case filings, highlight the importance of price gouging compliance during this unprecedented global pandemic.

Violators of price gouging statutes in states with a private right of action could find themselves facing class actions and hefty damages claims. Remedies available to private litigants range from damages, restitution, injunctive relief, and/or attorneys’ fees. New Jersey’s Consumer Fraud Act, for example, provides that

[a]ny person who suffers any ascertainable loss of moneys or property . . . may bring an action . . . . In any action under this section the court shall, in addition to any other appropriate legal or equitable relief, award threefold the damages sustained by any person in interest. [T]he court shall also award reasonable attorneys’ fees, filing fees and reasonable costs of suit.

N.J. Stat. Ann. § 56:8-19. North Carolina also provides for a private right of action under its consumer protection laws, which allows victims to recover treble damages, as well as attorneys’ fees if the judge finds that the defendant willfully engaged in price gouging. N.C. Gen. Stat. § 75-16.

Some states, like Arkansas, have enhanced penalties for violators that target the elderly or disabled persons. Under Arkansas’ Deceptive Trade Practices Act, “[a]n elder or disabled person who suffers damage or injury as a result of an offense or violation described in this chapter [including price gouging under § 4-88-301 et seq.] has a cause of action to recover actual damages, punitive damages, if appropriate, and reasonable attorney’s fees.” Ark. Code Ann. § 4-88-204. Michigan not only allows victims to recover their actual losses but also specifically allows for class actions. Under the Michigan Consumer Protection Act, “[a] person who suffers loss as a result of a violation of this act may bring a class action on behalf of persons residing or injured . . . for the actual damaged cause by . . . a method, act, or practice in trade or commerce defined as unlawful under section 3 [including price gouging].” Mich. Comp. Laws § 445.911(3)(a). California’s consumer protection laws provide a private right of action for an injunction, though some have argued that restitution may also be available for price gouging—as in a recently filed California class action.

Several class actions have already been filed by consumers against companies for alleged price gouging, and more are expected in the coming weeks and months—even potentially where there have been only modest pricing movements and even after the emergency declarations have been lifted. Companies that are subject to the scope of price gouging statutes can engage in appropriate compliance efforts to seek to avoid such claims, and to ensure they can address such claims if they arise.

Photo of Christopher E. Ondeck Christopher E. Ondeck

Chris Ondeck is co-chair of the Firm’s nationwide Antitrust Group. He represents clients in civil and criminal antitrust litigation, defending mergers and acquisitions before the U.S. antitrust agencies, defending companies involved in government investigations, and providing antitrust counseling.

Chris has handled antitrust matters…

Chris Ondeck is co-chair of the Firm’s nationwide Antitrust Group. He represents clients in civil and criminal antitrust litigation, defending mergers and acquisitions before the U.S. antitrust agencies, defending companies involved in government investigations, and providing antitrust counseling.

Chris has handled antitrust matters for clients in a number of industries, including advertising, aerospace, alcoholic beverages, appliances, building materials, consumer products, defense, franchise, medical devices, metals, mining, natural resources, oil and gas, packaging, pharmaceuticals, software and telecommunications. He also has developed substantial experience advising clients regarding the application of the antitrust laws to the pharmaceutical industry, the agriculture industry, trade associations and the energy industry.

Photo of John R. Ingrassia John R. Ingrassia

John is a partner at the Firm, advising on the full range of foreign investment and antitrust matters across industries, including chemicals, pharmaceutical, medical devices, telecommunications, financial services consumer goods and health care. He is the first call clients make in matters relating…

John is a partner at the Firm, advising on the full range of foreign investment and antitrust matters across industries, including chemicals, pharmaceutical, medical devices, telecommunications, financial services consumer goods and health care. He is the first call clients make in matters relating to competition and antitrust, CFIUS or foreign investment issues.

For more than 25 years, John has counselled businesses facing the most challenging antitrust issues and helped them stay out of the crosshairs — whether its distribution, pricing, channel management, mergers, acquisitions, joint ventures, or price gouging compliance.

John’s practice focuses on the analysis and resolution of CFIUS and antitrust issues related to mergers, acquisitions, and joint ventures, and the analysis and assessment of pre-merger CFIUS and HSR notification requirements. He advises clients on issues related to CFIUS national security reviews, and on CFIUS submissions when non-U.S. buyers seek to acquire U.S. businesses that have national security sensitivities.  He also regularly advises clients on international antitrust issues arising in proposed acquisitions and joint ventures, including reportability under the EC Merger Regulation and numerous other foreign merger control regimes.

His knowledge, reputation and extensive experience with the legal, practical, and technical requirements of merger clearance make him a recognized authority on Hart-Scott-Rodino antitrust merger review. John is regularly invited to participate in Federal Trade Commission and bar association meetings and takes on the issues of the day.