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.

Under the majority of state laws, Governors can declare a state of emergency only for a limited time period – typically 30, 60, or 90 days.  After that period, the Governors usually are required to renew the declaration.  Unless renewed, when the declaration expires, so do many of the price gouging restrictions.  In Louisiana, for example, “no state of disaster or emergency may continue for longer than thirty days unless renewed by the governor.”  La. Stat. Ann. § 29:724.  Louisiana’s price gouging statute tracks this language, stating that the statute “is effective for an initial period not to exceed thirty days pursuant to the initial declared state of emergency … and shall be renewed only by specific reference in any subsequent proclamations renewing the declared state of emergency by the governor.”  La. Stat. Ann. § 29:732(B).  Louisiana’s state of emergency related to COVID-19 expires on June 5, 2020, unless extended or terminated sooner.

Other states specify a set date when their price gouging restrictions expire in their declaration of emergency or another executive order.  For example, under California’s Proclamation of a State of Emergency, price gouging restrictions are in effect through September 4, 2020.  Michigan takes a similar approach, specifically extending its price gouging restrictions through June 12, 2020, via Executive Order 2020-89.

Some states also have price gouging laws that remain in effect even after the state of emergency expires.  For example, New Jersey’s price gouging statute states that “[i]t shall be an unlawful practice for any person to sell or offer to sell during a state of emergency or within 30 days of the termination of a state of emergency.”  N.J. Stat. Ann. §56:8-109.  New Jersey’s state of emergency expires on June 5, 2020.  Similarly, Pennsylvania’s price gouging statute remains in effect “[d]uring and within 30 days of the termination of a state of disaster emergency declared by the Governor.”  Penn. P.L. 1210, No. 133 §4(a).  Pennsylvania’s state of emergency, which must be renewed every 90 days, expires on June 4, 2020.

There are also some states in which the statutory time period for the price gouging restrictions has run, and the Governor has extended them.  Under Kentucky’s price gouging statute, for instance, restrictions are only in effect for fifteen days.  After the fifteen days expire, the Governor may renew the provisions up to “three additional fifteen (15) day periods [] if necessary to protect the lives, property, or welfare of the citizens.  Ky. Rev. Stat. §367.374(1)(b).  On April 21, 2020, the last of the fifteen-day extension periods expired.  However, Governor Andy Beshear has continued to extend the price gouging provisions beyond this statutory period by executive order.  The most recent executive order issued on May 21, 2020, extends the price gouging provisions “for the duration of the State of Emergency.”

While the majority of price gouging restrictions continue to remain in effect, some may begin to expire in the coming weeks or months.  With a wide range of expiration dates for price gouging restrictions, and renewals coming online daily, compliance on a regional or national level requires careful tracking of where the restrictions are in effect and for what period they are slated to remain in place.  Finally, the importance of maintaining a good record of your compliance and compliance efforts in place now survives the current state of emergency.  As some statutes allow for private causes of actions to be brought up to six years from now, plaintiffs will look retrospectively at what took place during this critical period when evaluating whether to bring claims – even months or years down the road.

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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.

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Photo of Kelly Landers Hawthorne Kelly Landers Hawthorne

Kelly Landers Hawthorne is an associate in the Litigation Department and a member of the Antitrust and Product Liability groups. She represents clients in litigations and due diligence across a range of industries, including consumer products, life sciences, healthcare, education, hospitality, sports and…

Kelly Landers Hawthorne is an associate in the Litigation Department and a member of the Antitrust and Product Liability groups. She represents clients in litigations and due diligence across a range of industries, including consumer products, life sciences, healthcare, education, hospitality, sports and entertainment.

Kelly also maintains a diverse pro bono practice. She received Proskauer’s Golden Gavel Award for excellence in pro bono work in 2019.

She is a frequent contributor to Proskauer’s Minding Your Business blog, where she authors articles related to price gouging issues.

Kelly is also a member of the Proskauer Women’s Alliance Steering Committee, where she serves on subcommittees focused on highlighting and providing professional development opportunities for women at the firm.

Prior to her legal career, Kelly was a Teach For America corps member and taught middle school in Washington, DC.

While at Columbia Law School, Kelly served as an articles editor of the Columbia Journal of Law & the Arts and interned for the Honorable Sandra Townes of the U.S. District Court for the Eastern District of New York.

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 Antitrust Group and co-head of the Washington DC office. He represents clients in complex antitrust and consumer protection litigation, defends mergers and acquisitions before the U.S. antitrust agencies, represents companies involved in government investigations, and counsels…

Chris Ondeck is co-chair of the Firm’s Antitrust Group and co-head of the Washington DC office. He represents clients in complex antitrust and consumer protection litigation, defends mergers and acquisitions before the U.S. antitrust agencies, represents companies involved in government investigations, and counsels on antitrust compliance. Chris is also the founder and leader of the firm’s Price Gouging Practice, and is one of the key thought leaders in this space.

Chris handles antitrust matters for clients in a number of industries, including food and agriculture, financial services, media, telecom, technology, e-commerce, consumer products, natural resources, oil and gas, chemicals, and pharmaceuticals.  He also serves as outside counsel to a large number of industry groups, including trade associations and cooperatives.

Chris has been recognized as a leading antitrust practitioner by Chambers, noting that clients describe him as “our primary thought partner – he’s very good at explaining the complex issues and making them easy to understand” and praising “his strong advocacy skills”; by The National Law Review as a “Go To Thought Leader 2020”; by Acritas as a “Star” in multiple years; by Benchmark Litigation as a National Litigation Star 2021; and by The Legal 500 United States for Antitrust: Civil Litigation/Class Actions.