If there is a silver lining to the extended application of most state price gouging laws, it is that we now know more about their ramifications. State attorneys general have launched numerous investigations and brought many lawsuits, and several class actions have been filed by consumers against companies for alleged price gouging up and down the supply chain. Insights can be gleaned from these price gouging-related suits to understand the “anatomy” of these suits, including what they allege, how to avoid them, and, when necessary, how to defend against them.

Activation

States activated their price gouging statutes in March. As we have noted, most states continue to signal that their pricing restrictions remain in effect. These statutes create different ranges of time during which lawsuits can be initiated, by varying actors.

  • Continuing impact: Since some of the statutes allow for private causes of actions to be brought for years following the alleged violations, price gouging liability will be an ongoing issue.
  • Authority to sue: While some state pricegouging laws vest prosecutorial authority solely in the state’s attorney general, others permit private plaintiffs to bring suit on their own. In practice, we have seen state attorneys generalprivate plaintiffs, and the federal government all involved in price gouging investigations and enforcement actions targeting the entire  supply chain.

Proactive Strategies

Companies can consider certain steps to avoid being entangled in investigations or actions, and to best situate themselves to defend against actions that may arise.

  • Internal practices: In general, companies will benefit from reliance on their compliance practices and their own internal documentation of costs and justifications, both in avoiding investigations and in defending against any eventual lawsuit.
  • Declaratory Judgments: As previously suggested on this blog, businesses should consider whether, in the appropriate circumstances, they may be able to head off a significant expense, or even ultimate liability, with a well-constructed declaratory judgment action.

Legal Theories

Should a company ultimately wind up on the other side of an investigation, or defending against a lawsuit, they should be cognizant of the variety of legal theories that are being raised in similar actions. In addition to straightforward claims of violations of the state price gouging laws, many other statutes or legal theories are also being used to prosecute price-gouging claims, including:

  • Unfair competition laws: In multiple federal district court actions, plaintiffs’ complaints have included a cause of action based on violation of a state unfair competition law.
  • Consumer protection laws: In at least one case in a federal district court, class action plaintiffs’ complaint included a cause of action based on violation of a state deceptive trade practices act.
  • Quasi-contract / unjust enrichment: In multiple federal district court actions, plaintiffs’ complaints included a cause of action based on unjust enrichment theories.
  • Negligence: In at least one price gouging case in a federal district court, class action plaintiffs’ complaint included causes of action based on negligence and negligence per se.
  • Fraud and deceit: In at least one case in a federal district court, a private plaintiff’s complaint included a cause of action based on the alleged willful and intentional injury plaintiff suffered and/or defendant’s willful and intentional injury, intentional misrepresentations, and/or negligent misrepresentations.
  • Other statutes: In at least one case in a federal district court, a private plaintiff’s complaint included a cause of action based on RICO, alleging a pattern of racketeering activity and for the unlawful purpose of intentionally defrauding and extorting monies from Plaintiff.

Penalties:

The available remedies sought for price gouging violations can range widely. (For more in depth discussion of some of the damages claims companies could face, see our prior post.) In addition to injunctive relief, other penalties can include:

  • Restitution: Many price gouging statutes include restitution as a possible (and, importantly, a nonexclusive) penalty, providing for companies to refund customers any amounts those customers paid in excess of the permissible prices.
  • Civil penalties: Many states allow for civil penalties to be imposed on a “per violation” basis. Some statutes impose a daily or a total cap on potential liability, but not all price gouging statutes that allow for financial penalties include such caps.
  • Recovery of costs of litigation: Some statutes, like those of Delaware and Pennsylvania, allow for fees and costs incurred when investigating the price gouging at issue to be shifted to the defendant.
  • Criminal penalties: Some statutes allow that, depending on the circumstances, violators could be jailed, with potential sentences ranging from thirty days up to ten years.

Defenses:

Finally, companies can also familiarize themselves with the defenses and legal justifications for their price increases, including:

  • Goods or services not covered: The specifics of the coverage varies widely, and any price gouging statutes only apply to limited goods or services.
  • Standing: Consumers often lack a private right of action, and hence lack standing to sue under many of the state price gouging laws. Some statutes also require plaintiffs to prove that they suffered actual damage or injury, not just identify an impermissibly heightened sales price.
  • Class certification: Differences in pricing may pose barriers to class certification.
  • Mootness: Depending on the timeline of the case and the status of the relevant state(s) of emergency, permanent injunctive relief may become moot.
  • Justifications: Many state price gouging statutes contemplate  justifications and exceptions that act as a complete defense where, for example, the seller can prove the price increase was directly attributable to its own rising costs of supply, labor, or materials. A New York Supreme Court recently dismissed a price gouging case in, despite allegations that defendant’s costs had not increased, where the defendant was able to demonstrate that its prices were not “unconscionable or overall extreme.”

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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 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 Nathaniel Miller Nathaniel Miller

Nat Miller is an associate in the Litigation Department.

Nat earned a J.D. degree from NYU School of Law, where he was a Managing Editor of the Journal of Law & Business, and a B.A. from Harvard University. While at NYU Law, he…

Nat Miller is an associate in the Litigation Department.

Nat earned a J.D. degree from NYU School of Law, where he was a Managing Editor of the Journal of Law & Business, and a B.A. from Harvard University. While at NYU Law, he worked as a research assistant for Professor Arthur R. Miller on his treatise, Federal Practice and Procedure. After law school, Nat served as a law clerk to the Honorable Claria Horn Boom of the Eastern and Western Districts of Kentucky.

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.