As state investigators across the country launch price gouging investigations, one thing is becoming clear – state price gouging investigations can look a lot like antitrust investigations. Price gouging enforcement is at an all-time high, and more and more it is being combined with antitrust and unfair trade practice investigations. This overlap can be bad news for companies facing potential price gouging claims, and it further highlights the need for compliance with both price gouging and antitrust statutes. This article explores the interaction between antitrust enforcement and price gouging enforcement, and sets forth key issue-spotting guidance for companies that are potentially impacted.

The clearest connection between antitrust and price gouging enforcement is price. Both types of investigation often begin with consumer complaints about higher prices. Investigators then look for the reason prices are high or have been increased. Antitrust investigators are looking for evidence of a conspiracy to raise prices. By contrast, price gouging investigators are looking for evidence that prices increased beyond a permitted level during times of emergency. The investigations and possible violations are not mutually exclusive, and attorneys in State AG offices frequently are choosing simultaneously to investigate both as possible enforcement mechanisms for the same price increases.

It would be expected and typical that in an emergency, an entire industry might independently move to higher prices, often in response to common market conditions, such as shortages, supply difficulties, increased demand, and higher common input costs. For a state attorney general who is scrutinizing whether industry-wide price increases are unlawful, it can be difficult to tell whether price increases were the result of an antitrust conspiracy, price gouging, or a natural and legal response to common market conditions. Therefore, many investigators now are asking all these questions at once. This raises the very real risk that consumer price gouging complaints become antitrust investigations – and this is in fact occurring in states around the country.

Antitrust and price gouging are also ostensibly connected by a shared purpose – consumer protection. Antitrust protects competition to promote lower prices, more innovation, efficiency, and better service, and as a result, consumer welfare. Unlike price gouging, antitrust does not prohibit excessive prices, though supra-competitive prices can be evidence of market power. High prices incentivize other competing companies to enter the market, a fact that has led some economists to criticize price gouging laws as inefficient and contrary to broader competition policy. Nevertheless, most states have price gouging laws, and in line with competition policy, these laws are limited in time and scope.

Antitrust and price gouging enforcement are also related statutorily. Many states use the same or similar statutes for both kinds of enforcement. For example, Montana’s Attorney General has specifically argued the state’s consumer protection laws cover price gouging. This is the same argument Congressional lawmakers made to the FTC in March. In letters to FTC Chairman Simons, members of Congress argued that the FTC’s authority to prosecute unfair methods of competition includes authority to target price gouging. While the FTC has never done so, on May 7, 2020, Senator Kamala Harris (D-CA), along with Senator Elizabeth Warren (D-MA), Congressman Joe Neguse (D-CO), and Congressman Ted Lieu (D-CA), sent a letter to Congressional leadership asking for provisions from recently proposed legislation – the Price Gouging Prevention Act – to be included in the next Covid-19 stimulus package.

Antitrust investigations can involve detailed probes into almost everything a company does. These investigations often take months or years and come with the risk of trebled damages and follow-on class actions. State Attorneys General historically have not been the leading antitrust enforcers, but that changed over the past few years. State attorneys general are now more active than ever and their investigations have the potential to heap costs on already burdened companies. While many companies with national footprints are putting how best to manage their price gouging compliance front and center, there is no better time to keep a keen eye on the state of their regular antitrust compliance policies and programs.

Because price gouging statutes are activated only in rare emergencies, many companies do not have a pre-existing risk monitoring and compliance program in place. Companies can consider three concrete steps to monitor compliance with both legal regimes:

  1. Consider calculating the company’s price from before the emergency and monitoring and tracking increases above that pre-pandemic price.
  2. If price increases are industry-wide, consider monitoring any communications with competitors that could touch on prices or conditions that could impact prices.
  3. Consider tracking the reasoning and any cost justification behind any price increases. In response to claims of price gouging and/or an unlawful conspiracy, companies are often asked to provide a legitimate business justification for a price increase and ex post explanations often hold less weight than contemporaneous documents.

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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

When competition or antitrust questions arise, John Ingrassia is sought out for his knowledge, reputation and credentials.

John is a recognized authority on Hart-Scott-Rodino antitrust merger review, and for more than 20 years has counselled businesses facing the most challenging antitrust issues and…

When competition or antitrust questions arise, John Ingrassia is sought out for his knowledge, reputation and credentials.

John is a recognized authority on Hart-Scott-Rodino antitrust merger review, and for more than 20 years 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 or joint ventures.

John is a senior counsel at the Firm, advising on the full range of antitrust matters in diverse industries, including chemicals, pharmaceutical, medical devices, telecommunications, financial services and health care, among others.  His practice focuses on the analysis and resolution of antitrust issues related to mergers, acquisitions, and joint ventures, and the analysis and assessment of pre-merger notification requirements. John has extensive experience with the legal, practical, and technical requirements of merger clearance and is regularly invited to participate in Federal Trade Commission and bar association meetings regarding Hart-Scott-Rodino practice issues.

Photo of Nicollette R. Moser Nicollette R. Moser

Nicollette Moser is an associate in the Litigation Department and a member of the Antitrust Group and the Price Gouging team.

Nicollette represents clients on matters related to mergers and acquisitions, allegations related to unlawful conspiracy and anticompetitive agreements, price fixing claims and…

Nicollette Moser is an associate in the Litigation Department and a member of the Antitrust Group and the Price Gouging team.

Nicollette represents clients on matters related to mergers and acquisitions, allegations related to unlawful conspiracy and anticompetitive agreements, price fixing claims and price gouging class actions. She also counsels clients on state Attorneys General and Department of Justice investigations regarding price gouging allegations.

Nicollette is a regular contributor to Proskauer’s commercial litigation blog, Minding Your Business.

Nicollette earned her J.D. from Georgetown University Law Center, where she was as an editor of the Georgetown Journal of Law & Public Policy. While at Georgetown, she served as an intern to the Hon. Craig Iscoe of the Superior Court of the District of Columbia. In addition, Nicollette was a law clerk with the House Judiciary Committee’s Subcommittee on Regulatory Reform, Commercial and Antitrust Law.

Photo of Jennifer Tarr Jennifer Tarr

Jennifer E. Tarr is a senior associate in the Litigation Department, and a member of Proskauer’s Sports Law and Antitrust Groups. She regularly litigates on behalf of sports leagues and counsels clients active in the sports industry on a variety of matters, including…

Jennifer E. Tarr is a senior associate in the Litigation Department, and a member of Proskauer’s Sports Law and Antitrust Groups. She regularly litigates on behalf of sports leagues and counsels clients active in the sports industry on a variety of matters, including issues pertaining to antitrust, team relocation, league governance, contract disputes, sponsorship and fan-league relationships.

In addition to sports antitrust work, Jennifer also has experience counseling and defending clients on issues related to mergers and acquisitions, claims related to unlawful conspiracy and anticompetitive agreements, monopolization claims, and price fixing claims. Jennifer is also a member of the firm’s price gouging team.

In 2019, she was a panelist on the Environmental Law Institute’s Managing Private Sector Environmental Initiatives panel, where she spoke about the Antitrust Implications of Corporate Environmental Collaborations.

Jennifer maintains an active pro bono practice and is a member of the Firm’s Pro Bono Committee. She received Proskauer’s Golden Gavel Award for excellence in pro bono work in 2018 and 2019.

Prior to joining Proskauer, Jennifer clerked for the Honorable Lorna G. Schofield on the United States District Court for the Southern District of New York. She also was a Staff Attorney at the Environmental Law & Policy Center, where she represented clients as lead counsel in litigation before multiple federal district and appellate courts and in federal mediation.

While in law school, Jennifer was a member of the Harvard Legal Aid Bureau, one of three honors societies at the law school and the nation’s oldest student-run legal services center. In that capacity, she argued and won a case of first impression before the Massachusetts Supreme Judicial Court. She also argued over 20 motions in state trial court and successfully represented clients in federal mediation and before federal administrative tribunals.