In a case of mistaken identity and a web of conflicting testimony, a Fresno local business successfully appealed a price gouging fine.  The saga between the store and the City of Fresno offers insights in the importance of maintaining proper business records to defend potential price gouging allegations.

On April 8, 2021, an Administrative Hearing Officer for the City of Fresno, California dismissed an Administrative Citation issued by the City Attorney’s Office against a local business for allegedly price gouging.  City Inspectors issued the $10,000 citation in March 2020 while Fresno was under a State of Emergency.  The store owner appealed the fine, and after a virtual hearing, the Hearing Officer determined that the City had not met its burden of proving each element of the case against the business.

The price gouging provision in the Fresno Municipal Code (“FMC”), prohibits any person, during a declared state of emergency, from selling or offering for sale certain products at more than 10 percent of the price charged for those products immediately prior to the declaration of the emergency.  Products covered by the provision include, “consumer food items or goods, goods or services used for emergency cleanup, emergency supplies, medical supplies, or building materials.”  However, if the seller’s costs have increased, then the seller may not charge a price greater than 10 percent more than the seller’s total cost plus the usual business mark-up.  Violating this section of the Code can result in a misdemeanor, including either a maximum fine of $1,000, imprisonment for up to one year, or both.  Alternatively, the City can issue an administrative citation of up to $10,000.  See FMC § 2-513.

The City alleged that the local business had quoted $16.00 for a 24 pack of 16.9 ounce bottles of water.  The business appealed the fine, claiming the quoted price was for a different product—a 24 pack of 20 ounce bottles of water—and contending the City had failed to review the proffered records regarding the store’s costs and prior sales.

According to the evidence presented at the hearing, two City inspectors planned to visit the store on March 19, 2020 after their office received a complaint that the store in question had engaged in price gouging relating to the sale of bottled water.  The first inspector testified he entered the store, asked the clerk the price of a case of water, and, after pointing at the case of water, the clerk replied it was $16.00.  The inspector testified he “voiced his surprise” at the price of the water, declined to make the purchase, re-joined his colleague outside the store, and informed her of the quoted price for the water “close to the sales register at the front of the store.”  Next his partner testified that she entered the store, identified herself to the clerk, and was quoted a price of $9.99 for, what she believed to be, the same pack of water as her partner.

On cross-examination, the attorney for the store pressed the inspectors on the specific size water bottles at issue and the baseline prices the inspectors had used in determining that a price gouging violation had occurred.  The City had failed to document whether the water bottles referenced by both inspectors were indeed 16.9 ounces.  Instead, the attorney argued, the price differences were easily explained by the fact that the $16.00 price was quoted for a case of 20 ounce bottles.  Further, the inspectors had not scanned the water bottles in question to ascertain the price or the SKU number at the register.  The store’s attorney also elicited testimony from the inspectors that they had not obtained evidence of the price charged by the local business immediately before the state of emergency was declared.  Instead, the investigators used evidence of other retailers’ prices in early March 2020.

Next, the store’s business manager testified that the store had only recently acquired 16.9 ounce bottles at the time of the inspectors’ visit and accordingly that product was in storage awaiting processing in the store’s computer.  At the time of the inspectors’ visit, he declared, the store only sold 20 ounce water bottles.  Further complicating the matter, the Hearing Officer noted the absence of the store clerk who had communicated with the inspectors on the day in question.  The clerk was unable to attend the hearing due to a family emergency.

Despite the tangled facts, the Hearing Officer concluded that the City had failed to prove two elements of the case by failing to provide sufficient evidence as to the specific product at issue in the citation and failing to calculate the retail price charged by that company prior to the state of emergency.  Accordingly, the case against the business was dismissed.

In price gouging cases such as this, businesses across all industries can learn valuable lessons about the prosecution of a price gouging case.  First, the government carries a heavy burden of proving its case.  It must prove each element under the specific terms of the statute. Second, identifying the specific product at issue is vital – particularly noting sizes, styles, or other upgrades that make two items different products.  Finally, business ought to maintain proper records of the timing of product purchases, the costs for these products, and historical pricing data.

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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 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.

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 Shannon D. McGowan Shannon D. McGowan

Shannon McGowan is an associate in the Litigation department.  Shannon’s practice focuses on assisting clients navigate a range of antitrust issues.  In addition to her experience on wide-ranging antitrust litigations, Shannon works with clients on general antitrust compliance and litigation issues.  In connection…

Shannon McGowan is an associate in the Litigation department.  Shannon’s practice focuses on assisting clients navigate a range of antitrust issues.  In addition to her experience on wide-ranging antitrust litigations, Shannon works with clients on general antitrust compliance and litigation issues.  In connection with historic restructuring of Puerto Rico’s debts, Shannon advises the Financial Oversight and Management Board for Puerto Rico on a variety of issues related to Puerto Rico Oversight, Management, and Economic Stability Act.

Shannon maintains an active pro bono practice, including assisting non-profit organizations with research into immigration and refugee law and representing individual clients in litigation to improve housing conditions in the Washington D.C. area.

Shannon earned her J.D. from the University of Virginia School of Law, where she captained the school’s Philip C. Jessup International Law Moot Court team.  As an alumnae, she is active in advising the current UVA Jessup Team throughout the year-long competition.

Prior to law school, Shannon served as a legislative assistant to state representatives at the Oklahoma State House of Representatives, where she researched and advised on legislation and policy issues, including government transparency, education, and financial accountability.