As price gouging restrictions remain in place in many states and municipalities, new and ongoing enforcement actions continue to advance or settle. Over the past several weeks, we have seen a number of noteworthy developments in the most watched price gouging matters.

Online Merchants Guild v. Cameron, 20-cv-00029-GFVT (E.D. K.Y.)

After Kentucky Attorney General Daniel Cameron initiated civil price gouging investigations into various Kentucky-based merchants last year, the Online Merchants Guild (“Guild”) brought suit to enjoin application of the state price gouging laws against its member suppliers. The district court granted a preliminary injunction, and Kentucky appealed. In April 2021, the Sixth Circuit dissolved the lower court’s preliminary injunction and remanded for further proceedings. The Attorney General filed a motion for judgment on the pleadings, arguing that the Guild’s allegations of constitutional violations fail because Kentucky’s statute is not extraterritorial and it is sufficiently clear to pass constitutional muster. On October 12, 2021, the Guild moved to voluntarily dismiss its case without prejudice, noting that the Guild and Attorney General were engaged in discussions to address the state’s concerns while avoiding further litigation. The Guild further stated it did not intend to pursue litigation as an entity, but if further litigation were necessary, it could be addressed through individual suits by its members. The parties are awaiting the district court’s determination on their respective dismissal motions.

Greenberg v. Amazon, 2:21-cv-00898-RSL (W.D. Wash.)

On July 2, 2021, a group of consumers filed a putative class action in Washington District Court seeking to hold Amazon accountable for allegedly unlawful price gouging during the COVID-19 pandemic on a variety of Amazon-branded products as well as products sold by third-party sellers in the Amazon marketplace. On October 1, 2021, Amazon filed a motion to dismiss the complaint. Among other things, Amazon pointed to the basic economic principle of supply and demand and argued that the court should not impose a blanket price ceiling of its own accord. Amazon also objected to the plaintiffs’ attempt to create a 15% limit on price increases, a standard which is not found in Washington’s consumer protection statute or case law. The plaintiffs’ filed an amended complaint which added an additional named plaintiff and described additional products allegedly sold at inflated prices. The plaintiffs amended complaint also claims the baseline price for measuring whether price gouging occurred is the “the price prevailing immediately prior to the declaration of a national emergency related to COVID-19.”  Amazon’s deadline to respond to the amended complaint is due November 5, 2021.

Bell v. Cal-Maine Foods et al., 1:20-cv-00461-RP (W.D. TX)

On September 20, 2021, Judge Robert Pitman dismissed a class action price gouging case in the Western District of Texas after adopting Magistrate Judge Mark Lane’s report and recommendation.  Plaintiffs alleged that defendant egg producers conspired to, and illegally raised egg prices in violation of section 17.46(b)(27) of the Texas Business and Commerce Code, which prohibits “exorbitant or excessive prices” on certain products during a state of emergency. Magistrate Judge Lane found that the plaintiffs failed to claim the amount in controversy necessary for the court to have subject matter jurisdiction. Plaintiffs argued that their claims against each defendant should be aggregated together but failed to make any factual allegations that the defendants are related or worked together to manipulate and raise egg prices.  The district court adopted these findings and dismissed the complaint without prejudice.

Ellison v. Sparboe Farms, Inc. 27-cv-21-10810 (MN)

On October 25, 2021, Minnesota Attorney General Keith Ellison announced a settlement between the state and Sparboe Farms, ending a lawsuit by the state which alleged that Sparboe had engaged in price gouging on eggs during the Covid-19 pandemic. As part of the settlement, Sparboe will donate over 1 million eggs to Minnesota nonprofit organizations for the purpose of combatting hunger and food insecurity over the next 18 months. Sparboe is responsible for all costs associated with the donation and must provide updates and documentation to the attorney general if requested.

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Visit Proskauer on Price Gouging for antitrust insights on COVID-19.

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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 Timothy E. Burroughs Timothy E. Burroughs

Tim Burroughs is an associate in the Litigation Department.

Tim earned his J.D. from Vanderbilt Law School, where he was the Executive Student Writing Editor for the Vanderbilt Journal of Transnational Law and Teaching Assistant for the legal writing program. While at Vanderbilt…

Tim Burroughs is an associate in the Litigation Department.

Tim earned his J.D. from Vanderbilt Law School, where he was the Executive Student Writing Editor for the Vanderbilt Journal of Transnational Law and Teaching Assistant for the legal writing program. While at Vanderbilt, Tim interned at the U.S. Attorney’s Office for the Southern District of New York and published his student note on international anti-money laundering regulation in the fine-art market.

Prior to law school, Tim taught elementary school in the Brownsville neighborhood of Brooklyn for three years as part of Teach for America.

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.