Over a year ago, states of emergency were declared across the country. Such emergency declarations are often the trigger for state pricing restrictions.  Tracking the start and end of the emergency declarations is essential for interpreting the pricing restrictions they impose. For instance, in Oklahoma, the pricing restrictions remain in place throughout the duration of the emergency, and extend for 30 days after the state of emergency has terminated. Proskauer’s Price Gouging Coast to Coast Reference Guide has been updated to reflect new states of emergency dates and legislative changes.

Governors around the country continue to extend states of emergency. Emergency declarations continue to push out the expiration dates by increments of typically 30 to 60 days. But in some states, emergency declarations have expired.

In Alaska, California, and Oregon the full COVID-19 states of emergencies have expired. Yesterday, the Oregon Governor renewed the state of emergency, but lifted the executive order regarding price gouging, “because the days of hand sanitizer and, yes, toilet paper scarcity are far behind us.” She also signaled eventually lifting the COVID-related state of emergency entirely, but maintained flexibility depending on how the situation develops.

Similarly, the California Governor also took a nuanced approach and lifted the pricing restrictions for all but a few specific items. As we discussed in previous posts, price gouging restrictions are now limited to a smaller subset, including water, blankets, soaps, diapers, and toiletries. These restrictions are in place until September 4, 2021.

In Alaska, the state of emergency expired on February 14, 2021.  With its expiration, pricing restrictions have been relaxed.  However, the two year statute of limitations for bringing a case remains.  Accordingly, companies should continue to maintain records from the past year as cases alleging violations of the state price gouging prohibition potentially may be brought until February of 2023.

Most states continue to have price gouging restrictions in place. Governors are often extending states of emergency in 15, 21, 30, and 60 day increments. Currently, 13 states are set for emergency declarations to expire in May. For instance, on April 22, 2021, the South Carolina Governor extended the state of emergency for another 15 days.  Florida also extended its state of emergency an additional 60 days to June 26, 2021.

Other states have longer running emergency periods. In Missouri the state of emergency declaration is set to expire on August 31, 2021. In Texas’ emergency will remain in effect until June 14, 2021, unless rescinded or renewed.

As the COVID situation continues to evolve, Governors may issue additional extensions, or they may quietly allow the emergency declarations to expire.

Additionally, states are looking to amend their price gouging statutes.  As we previously noted, Idaho enacted new legislation. The legislation provides that only price increases are covered by the price gouging prohibition – not price decreases that are deemed insufficient.  Additionally, the new legislation requires that when analyzing whether the price increase is “exorbitant or excessive,” courts “shall not consider any increase in the margin earned.” This legislation came following headlines detailing a settlement by the Idaho Attorney General with three gasoline retailers, in which the Attorney General alleged the retailers’ margin was too high, despite the fact that gas prices dropped.

As the COVID price restrictions enter a second year, states will continue to evaluate the necessity for states of emergency and price gouging restrictions. Continue to follow developments at Proskauer on Price Gouging.

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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.