In response to the public health crisis caused by COVID-19, states of emergencies were declared across the nation in order to implement emergency response plans and halt the spread of the virus. Generally, state governors have the power to declare states of emergency, by issuing executive orders which outline the duration of the declaration and the conditions that brought about the order.

Since March 2020, all fifty states have declared states of emergencies. As a result of the declarations, price gouging laws have been triggered nationwide. As previously discussed, although the emergency declarations began at roughly the same time, states are likely to allow them to expire at very different times.

To date, no state appears to have let their emergency declarations expire, or even lapse (though the manner in which some of the renewals were implemented may leave open the possibility of a different interpretation). Practically speaking, that means that for the purposes of calculating baseline prices, the pricing considerations that were implicated when these declarations were first implemented in early March, are very likely the same considerations that will be used today.

While many states have repeatedly extended their declarations as the pandemic continues, more than a dozen states, issued a state of emergency for an indefinite period of time.

Two states, Missouri and South Dakota, have provisionally set December 30, 2020 as their end dates. South Dakota set that date in late May, and Missouri made a similar decision in early June.

Shorter term, some states of emergencies are currently expected to expire in October (District of Columbia) and early September (Alabama, Connecticut, Florida, Kansas, New York, Oregon, and Pennsylvania), and many other states are due to expire at various points in August.

The continued pattern of renewals over the past several months, however, gives reason to doubt whether the current expiration dates will be maintained. We have seen that, in states that set shorter time frames for the effectiveness of their declarations, the relevant states of emergencies have been repeatedly renewed and extended. In Oklahoma, for example, the emergency declaration has been renewed more than in any other state—now nearly twenty times. While their current end date is August 9, 2020, given the pattern of renewals in Oklahoma, it seems unlikely that deadline will hold.

As the pandemic continues to pose a threat to communities in various states, governors likely will continue to renew states of emergencies with no clear end in sight. Businesses should remain aware of the span of these states of emergency, as violating price gouging laws can bring about serious penalties.

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Visit Proskauer on Price Gouging for antitrust insights on COVID-19.

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Proskauer’s cross-disciplinary, cross-jurisdictional Coronavirus Response Team is focused on supporting and addressing client concerns. Visit our Coronavirus Resource Center for guidance on risk management measures, practical steps businesses can take and resources to help manage ongoing operations.

Photo of Kelly Landers Hawthorne Kelly Landers Hawthorne

Kelly Landers Hawthorne is an associate in the Litigation Department.

While at Columbia, she served as an articles editor of the Columbia Journal of Law & the Arts and was involved with the Lawyering in the Digital Age Clinic.  She also worked as…

Kelly Landers Hawthorne is an associate in the Litigation Department.

While at Columbia, she served as an articles editor of the Columbia Journal of Law & the Arts and was involved with the Lawyering in the Digital Age Clinic.  She also worked as a judicial intern for the Honorable Sandra Townes of the United States District Court for the Eastern District of New York.

Kelly is a Teach For America alumnus and taught middle school special education and math in Washington, D.C. prior to law school.

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.

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.