Antitrust

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States around the country have activated their price gouging statutes due to the COVID 19 pandemic.  These temporary restrictions typically go into effect upon the declaration of a local, state or national emergency.  However, even though all the emergency declaration began at roughly the same time (the first week of March 2020), they likely will end at very different times. States are taking much different approaches to their predicted end-dates for their price gouging 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. Cattle Industry Price Gouging Complaints, an Oklahoma Congressman, and the Secretary of Agriculture—Battling it out on the Western Front Congressman Markwayne Mullin of Oklahoma’s Second District, who is both a rancher and a restaurant owner, is publicly calling for the resignation of Secretary of Agriculture Sonny Perdue over alleged price gouging in the cattle industry. In a public video statement the Congressman said that he is…
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…
Price gouging enforcement can apply to businesses at all levels of the supply chain, from manufacturers and producers, to wholesalers and even service providers. Without a federal price gouging statute, individual states have established their own price limits and enforcement policies, and they vary greatly. This can require companies to be well versed in statutes across all states in which they are active. Proskauer’s Antitrust Group has created an overview of individual state rules in our Proskauer on Price Gouging: A Coast-to-Coast Reference Guide. To help spot price gouging issues before they arise, below are Dos and Don’ts for…
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 Executive Calls for Federal Price Gouging Law Brian Huseman, Vice President of Public Policy at Amazon, recently called on Congress to establish a federal price gouging law. According to Huseman, “[t]he disparate standards among states present a significant challenge for retailers working to assist law enforcement, protect consumers, and comply with the law. . . . This would [] help retailers like Amazon more effectively prevent…
Though much attention has been paid to state price gouging laws, several states without price gouging laws have nevertheless been active enforcers. Governors in many of these states have issued executive orders empowering their enforcers to target price gouging. Other states have repurposed existing laws to target price gouging. Price gouging in these states may pose greater compliance risk than in states with specific price gouging laws because these the states may not have statutory definitions or clear standards for what conduct constitutes unlawful price gouging. In this post, we consider price gouging rules and enforcement in states without price…
State Attorneys General are not the only ones enforcing price gouging laws in the current pandemic. Many states also provide a private right of action for victims of price gouging. Depending on the state, private litigants may seek injunctions, civil penalties, or even damages under state price gouging statutes and consumer protection laws. These remedies, and recent case filings, highlight the importance of price gouging compliance during this unprecedented global pandemic.…
Proskauer’s antitrust practice group has developed a State Price Gouging Laws: A Coast-to-Coast Reference Guide to help your business manage price gouging compliance during the COVID-19 emergency. State price gouging measures cast a wide and varied range of coverage, such that compliance at the national level means knowing each state’s covered products and services, permitted price increases, if any, and available defenses such as cost increases. Many price gouging state laws presently in effect reach upstream players in the supply chain and some include private rights of action, and even where a private right of action is not explicitly provided…
Corporate-Caution
The COVID-19 pandemic has brought great economic uncertainty and significant market volatility, creating an environment where investors that are trying to assess the financial impact of the virus are looking to glean any insight they can from a company’s disclosures and are hanging on every statement made by company leaders. This environment of heightened investor focus has, not surprisingly, increased the legal risks that companies, their officers, and their directors face when informing the market about the impact of COVID-19. The coming months are likely to see increased activity from both the SEC Enforcement Division and from plaintiffs’ firms bringing…
Price gouging complaints around the country have been skyrocketing and Michigan is no exception. Between March 5, 2019, and April 14, 2019, Michigan had 80 price gouging complaints. During the same period in 2020, Michigan received 3,541 complaints – an increase of 4,326 percent. Michigan has been under a state of emergency since March 10, 2020, which remains in effect indefinitely.…
Over the past month, state enforcers have declared a war on price gouging, but some of the most effective enforcers have not been the states. Online platforms and other large retailers have taken extraordinary steps to restrict price gouging, and their monitoring has already led to hundreds of thousands of items pulled from e-commerce websites. With entire countries engaging in social distancing, e-commerce has become de-facto commerce for many, and this dramatic and sudden shift gives online sellers enormous influence on price gouging enforcement.…
Due to the unprecedented length of the current COVID-19 emergency, price gouging laws that once focused solely on retail prices, now are being applied to participants throughout the entire supply chain. At the beginning of the COVID-19 emergency, state enforcers focused on increases in retail prices to consumers. However, enforcers now are opening investigations and taking enforcement actions throughout the upstream supply chain for covered products and services. Several state Governors also recently have issued Executive Orders that have expanded the scope of their state’s price gouging laws to national producers and distributors. All entities in the supply chain need to consider a nationwide…
Don't-Mess-with-Texas
When it comes to price gouging in the Lone Star State, Attorney General Ken Paxton is sending a message: don’t mess with Texas. On March 26, 2020, AG Paxton accused Auctions Unlimited, a Texas auctioneer, of price gouging disinfectant wipes, hand soaps, and 750,000 N95 respirator masks. Bidding for just 16 N95 respirator masks went as high as $180 – despite the owner receiving warnings from both AG Paxton and local police – before Texas authorities intervened and stopped the auction. The lawsuit seeks civil penalties of no more than $10,000 per violation, and $250,000 in the event the deception…
In the past month, Florida’s Attorney General has received thousands of complaints about price gouging across the state.  As a result, Florida is taking action.  Attorney General Ashley Moody has issued dozens of subpoenas to third-party sellers on Amazon and secured thousands in refunds for consumers.  The AG’s office has also been working with online platforms to deactivate price gouging accounts and has created a “Rapid Response Team” focused on price gouging.  Florida is, and promises to remain, active on price gouging enforcement.…
Even though states are leading the way on price gouging enforcement, recent action in Congress may lead to overlapping federal government enforcement.  Recent Congressional letters, statements, and proposed bills show a strong appetite for action on price gouging.  House Democrats tried but failed to add price gouging language to the coronavirus relief package in March.  Senators Klobuchar and Tillis have both introduced price gouging bills in the past month.  This week, Representatives Schakowsky, Pallone, Cicilline, and Nadler introduced a standalone bill to create a federal price gouging regime for the current state of emergency.…
Amid the COVID-19 pandemic, New York Attorney General Letitia James has stated her office will be aggressive in prosecuting price gouging. On March 10, AG James stated, “we will not tolerate schemes or frauds designed to turn large profits by exploiting people’s health concerns.” The NY Office of Attorney General (“OAG”) is tasked with enforcing New York General Business Law Section 396-r, which prohibits parties from selling or offering certain goods or services at an unconscionably excessive price during an abnormal disruption in the market.…