Antitrust

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Six months into the states of emergencies triggered by the COVID-19 pandemic, there is a sizeable amount of data on how prices have actually moved, potentially leading to more private actions as plaintiffs’ now have the opportunity to review prices retroactively and establish claims based on hard data.…
The global pandemic has brought about countless changes, including, for many households, increased reliance on online retail and delivery services, such as Amazon. When consumers sign up for these services or place their orders, they are likely to see a notice regarding terms and conditions, which may include an arbitration agreement pursuant to which the consumer agrees to arbitrate disputes arising from the use of the service, rather than pursue their claims in court. Recent decisions underscore the importance of the terms of these agreements and the challenges consumers may face if they wish to avoid arbitration of disputes with service…
Price gouging laws have become more relevant than ever, but a historical review reveals that price gouging laws may be a historically recent, and misguided development. It was not until 1979 that New York State enacted the nation’s first law explicitly targeted at price gouging.…
Price gouging enforcement and litigation is front and center for company counsel and business managers nationwide. Our weekly round up highlights some of the most relevant news and information to our clients and friends. Consumer Watchdog Accuses Amazon and Third-Party Sellers of Price Gouging According to a September 10, 2020, report from consumer rights nonprofit Public Citizen, Amazon listed its own products, including face masks, hand sanitizer, flour, and sugar at markups “ranging from 76% to more than 1,000%.” For example, Public Citizen reports that between April 1 and August 16, 2020, Amazon sold disposable face masks in packs of…
Since the ongoing states of emergency were put in place in response to a health crisis, pricing in the pharmaceutical industry is under more of a microscope than usual.  While the immediate focus may be on products that are used to diagnose, treat, or prevent COVID-19, price gouging laws cover a wide variety of pharmaceutical products covering the full range of conditions. Given the current and proposed regulations that may impact pricing, companies should remain mindful of their price gouging compliance policies when considering pricing movements during the states of emergency.…
As annual supply contracts come up for renewal, businesses may be wondering whether price increases for annual contracts are permitted under the panoply of price gouging laws currently in effect. Parties may want to negotiate contracts with “normal” price increases, operating under the assumption that, at some point during the contract year, price controls will expire. But if states of emergencies remain in effect when the new contract prices become effective, parties could find themselves in a bind.…
Whether you are a regular user of arbitration, a default user of your local courts or pick and choose a forum depending on the deal, it always pays to take a cold look at those choices. Do they still work for you? Will they work in the future when a dispute arises? Have you taken into account developments in law and current best practice? Today is the day to review your dispute resolution (DR) provisions. Why? We give you 5 good reasons.…
Price gouging enforcement is at an all-time high, but many ambiguities about the application of these state laws remain. Among the many questions left unanswered: what does a statute mean when it says “trade area” or “market area”? Many laws refer to the price at which the same or similar good or service is available in the “trade area” or “market area,” but do not provide a definition. Does it mean goods or services sold within a city or county? Or the entire state? What about sellers who offer goods or services in an area that borders another state, especially…
Price gouging enforcement and litigation is front and center for company counsel and business managers nationwide. Our weekly round up highlights some of the most relevant news and information to our clients and friends. Department of Justice Settles Price Gouging Allegations with Two New Jersey Companies On August 14, 2020, the Department of Justice announced that two New Jersey companies had entered into agreements to resolve allegations that the companies violated the Defense Production Act of 1950 for price gouging personal protective equipment. The agreements arise out of the April 2020 seizure of over 11 million items of PPE. The…
Much of the discussion to date regarding price gouging laws has rightly focused on the two core elements of a price gouging lawsuit: what constitutes a violation and what are the defenses? And while these defenses are valid, most would prefer to never have to spend the time and expense getting a case dismissed in the first place – raising the question of whether a declaratory judgment may be the right solution.…
Price gouging enforcement and litigation is front and center for company counsel and business managers nationwide. Our weekly round up highlights some of the most relevant news and information to our clients and friends. Bipartisan Effort in the Senate to Target Price Gouging A recent bipartisan Senate bill—the Make Medications Affordable by Preventing Pandemic Price-gouging (MMAPPP) Act—was introduced by Oregon’s Jeff Merkley and Minnesota’s Tina Smith, and is also co-sponsored by California’s Kamala Harris, New York’s Kirsten Gillibrand, and Wisconsin’s Tammy Baldwin. Similar to the house bill introduced in June, the Senate bill focuses on ensuring that taxpayer-funded vaccines…
Businesses may be wondering whether there is increased risk of price gouging liability when they impose higher penalty terms, ask for higher up-front payments, raise rates, or otherwise seek terms that may be more burdensome. Sellers and service provides should consider the risk of being held liable for non-price terms that result in higher customer costs.…
Private plaintiffs and state enforcers have been targeting businesses up and down the supply chain for price gouging violations. Some of these actions have been over the price of goods long associated with the COVID-19 pandemic, such as toilet paper and medical supplies. Yet others, such as a dispute in which a California winery has accused the company managing its storage facility of illegally increasing its rates, show the wide range of businesses potentially affected by price gouging laws. And with many state price gouging laws likely to remain in effect until at least early 2021, these lawsuits provide insight…
Price gouging enforcement and litigation is front and center for company counsel and business managers nationwide. Our weekly round up highlights some of the most relevant news and information to our clients and friends. Defense Production Act Price Gouging Enforcement Federal prosecutors announced on August 6, 2020 that a Georgia businessman has been charged with hoarding and price gouging in violation of the Defense Production Act of 1950 (DPA). The businessman “allegedly saw the unprecedented COVID-19 global pandemic as an opportunity to make a profit,” said U.S. Attorney Byung J. Pak. “Desperate to find personal protective equipment during the pandemic,…
Most price gouging laws have been in effect throughout the country since early March due to the pandemic. As hurricane season gets underway, businesses should be aware that new states of emergency may be declared, overlapping with current pandemic states of emergency. New states of emergency may trigger price gouging laws that cover a variety of goods not currently covered under those related to COVID-19.…
Most price gouging laws have been in effect for upwards of five months. These laws were not designed for the length and national scope of the current pandemic, which has led to them unintentionally harming businesses and the economy, and ultimately consumers along the way. In a recent Fortune article, Proskauer’s antitrust lawyers Chris Ondeck and Jennifer Tarr discuss several options to remedy these issues while still achieving the goals of these laws. Read the full article: Pandemic price gouging is a huge issue—but state laws to stop it are creating more problems than they solve *      *      * Visit …