Antitrust

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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 for our clients and friends. Santa Monica Woman Pleads Guilty Under the Defense Production Act to Hoarding and Price Gouging A Santa Monica woman recently pled guilty to hoarding and price gouging face masks in violation of the Defense Production Act of 1950 (“DPA”).  The DPA prohibits the accumulation of materials “in excess of the reasonable demands of business, personal, or home consumption,” as well as the accumulation of materials for…
The roll-out of vaccine approvals has led to some confusion over what charges consumers might be asked to cover. This echoes the confusion previously discussed with respect to COVID-19 diagnostic and antibody test pricing. But consumers, providers, and others that will have any involvement with vaccine production, distribution, or administration should be aware that the Coronavirus Aid, Relief, and Economic Security (CARES) Act provides different rules for treatment (including testing) than it does for preventative care, like the recently approved vaccines.   …
Reports of restaurants adding a “COVID surcharge” have become widespread during the pandemic. In recent months, cities and states across the nation have implemented a number of measures designed to help struggling restaurants adapt to the new normal. These include allowing restaurants to implement a “surcharge,” as well as capping fees that third-party delivery services can charge restaurants. However, while “surcharges” may be more benign than direct price increases, a recent California price gouging lawsuit demonstrates that restaurants still need to be vigilant in their compliance with state price gouging laws.…
On November 24, 2020, a class action price gouging claim was filed against a California based operator of casual fine dining restaurants. The class action lawsuit against Hillstone Restaurant Group alleges price gouging in violation of California Penal Code §396. According to the lawsuit, “Hillstone engaged in unfair and unlawful business practices by increasing its price on food items and also unjustifiably charging a 10% or 15% so-called ‘service or packaging fee’ for takeout orders.” The lawsuit further states that “despite increasing the cost of its food items and adding this Fee, there has been no change in the quality…
Companies that sell consumer products worldwide should note the growing convergence between Brazil and the United States for the use of anticompetitive practices laws to prosecute price gouging.  The Brazilian Competition Law (Law No. 12,529/2011) prohibits a non-exhaustive list of anticompetitive practices, including engaging in acts that “arbitrarily increase profits.”  Brazil’s antitrust authority, Conselho Administrativo de Defesa Econômica (“CADE”), however, has not traditionally investigated claims of price gouging as a standalone theory of harm, recognizing the difficulty of demonstrating that a price increase was “arbitrary” as opposed to a legitimate reaction to market developments.  Instead, CADE typically has enforced the…
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 for our clients and friends. Lawsuit Seeks Documents Showing Price VA Paid for PPE On November 26, 2020, a FOIA complaint was brought against the U.S. Department of Veterans Affairs seeking to discover documents showing the price the VA paid for PPE in the spring. According to the complaint, the VA has ignored requests regarding the prices it paid for PPE in Massachusetts, Texas, Georgia, Iowa, Illinois, and Maine. The complaint…
Many are asking how long states of emergency can continue to be renewed, and whether such extended renewals are permissible or valid. Given the lack of comparable precedent, there is some uncertainty around the issue. Expectations are that while some courts are likely to defer to the use of extraordinary executive power, not all will and there may be strong arguments for a curtailing of things like pricing restrictions.…
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. Chicago Passes Ordinance Capping Third-Party Delivery Service Fees On November 23, 2020, the Chicago City Council unanimously approved an ordinance capping service fees that third-party delivery companies may charge to Chicago restaurants. The restriction prohibits third-party food delivery companies from charging more than a 10% delivery fee on online restaurant purchase orders. Violators may face fines ranging from $1,000 to $2,000 per offense. According to Ald.…
On November 12, 2020, D.C. Attorney General Karl Racine filed a lawsuit against Capitol Petroleum Group, LLC (“CPG”), a retailer and distributor of gasoline in the District. According to Attorney General Racine, CPG overcharged its customers for gasoline in violation of the Natural Disaster Consumer Protection Act (“NDCPA”). This is the latest example of aggressive attorneys general investigating price gouging allegations that go well beyond personal protective equipment and other staples.…
Out-of-network providers appear to be inflating the price of COVID-19 diagnostic and antibody tests, according to a recent America’s Health Insurance Plans (AHIP) survey. The October 2020 survey reports that out-of-network providers, as a whole, were charging higher prices for nearly half of the COVID-19 diagnostic tests and a third of antibody and antigen tests—a 10% increase since July. As the AHIP reports, nearly half of all out-of-network diagnostic testing exceeded $185, with between 9% and 16% of out-of-network test claims charging “more than $390 (three times the average cost).”) The amount of COVID-19 tests administered out of network…
China has a very different approach to price gouging restrictions than the state level system in place in the United States. As the Chinese market is of particular importance to our readers and their businesses, operators may benefit from unpacking the anti-price gouging rules contained in national laws and the reinforcing measures against price gouging adopted by Chinese regulators since the outbreak of the COVID-19.…
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 for our clients and friends. D.C. Attorney General Files Lawsuit against Gasoline Retailer for Alleged Price Gouging On November 12, 2020, D.C. Attorney General Karl Racine filed a lawsuit against a D.C. gas retailer and distributor for allegations of price gouging. According to Attorney General Racine, the company doubled its profits on every gallon of gasoline sold at its 54 gas stations across the D.C. area, despite the prices of wholesale…
Although much of the coverage relating to price gouging enforcement has focused on bad actors hoarding pandemic-related goods, businesses that make good faith efforts to comply with the panoply of price gouging restrictions may nevertheless find themselves in the crosshairs. The relevant statutes typically impose a form of strict liability, and do not take motive into account as we have discussed. Even if we assume that states should be able to freeze prices out of their desire to protect their citizens, it is not clear that states should impose strict criminal liability for price gouging violations.…
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. Amazon Continues to Combat Online Price Gouging As a second wave of potential panic buying approaches, FOX Business has reported that Amazon is continuing to combat price gouging by third-party sellers. Since the pandemic began, Amazon has removed more than one million products from its platform. With winter approaching, a new category of cold-weather products, including fire pits and propane heaters, may be subject to state…
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. Minnesota Attorney General Talks Price Gouging – Pushes for New Legislation In a recent Law360 article, Minnesota Attorney General Keith Ellison discussed Minnesota’s fight against pandemic profiteering. To date, Minnesota has received more than 2,200 complaints related to price gouging since the start of the pandemic. Attorney General Ellison stated that a “dedicated team of attorneys and investigators have made countless calls to businesses and consumers,…