Minding Your Business

Proskauer’s perspective on developments and trends in commercial litigation.

Kelly Landers Hawthorne

Kelly Landers Hawthorne

Associate

Kelly Landers Hawthorne is an associate in the Litigation Department.

While at Columbia, she served as an articles editor of the Columbia Journal of Law & the Arts and was involved with the Lawyering in the Digital Age Clinic.  She also worked as a judicial intern for the Honorable Sandra Townes of the United States District Court for the Eastern District of New York.

Kelly is a Teach For America alumnus and taught middle school special education and math in Washington, D.C. prior to law school.

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Private Plaintiff and Class Action Price Gouging Claims Spread as Emergency Continues

Private plaintiffs and state enforcers have been targeting businesses up and down the supply chain for price gouging violations. Some of these actions have been over the price of goods long associated with the COVID-19 pandemic, such as toilet paper and medical supplies. Yet others, such as a dispute in which a California winery has … Continue Reading

Price Gouging Laws and Overlapping States of Emergency

Most price gouging laws have been in effect throughout the country since early March due to the pandemic. As hurricane season gets underway, businesses should be aware that new states of emergency may be declared, overlapping with current pandemic states of emergency. New states of emergency may trigger price gouging laws that cover a variety … Continue Reading

How to Calculate a Baseline Reference Price for Price Gouging Compliance

Price gouging statutes typically operate by setting a baseline over which any price increase is presumptively illegal, subject to various exemptions. But different states use different formulas for their baselines. Businesses who provide covered goods or services therefore need to determine the relevant baselines in order to calculate whether, and how much of, a price … Continue Reading

Price Gouging Laws Expected to Remain in Effect Through the End of the Year

In response to the public health crisis caused by COVID-19, states of emergencies were declared across the nation in order to implement emergency response plans and halt the spread of the virus. Generally, state governors have the power to declare states of emergency, by issuing executive orders which outline the duration of the declaration and … Continue Reading

Calculating Damages for Price Gouging Violations: Why Customer Refunds are Only Part of a Company’s Concerns

As the COVID-19 pandemic continues and the triggering states of emergencies are largely extended, companies are increasingly focused on compliance with state price gouging statutes. State attorneys generals have launched investigations and brought lawsuits, and several class actions have been filed by consumers against companies for alleged price gouging, up and down the supply chain. … Continue Reading

Does ‘New and Improved’ Products Mean I Can Charge a New and Improved Price?

State price gouging laws do not typically address product improvements or reformulations. Still, businesses should consider price gouging restrictions when releasing “new and improved” products, as the same pricing considerations that may apply to new products may also apply to improved, updated or reformulated products.… Continue Reading

Introducing a New Product or Service? Why Price Gouging Laws May Still Apply

While price gouging is often discussed in the context of existing products, new products and services may be covered as well. As a result, businesses looking to introduce new products during a price gouging emergency can seek guidance from the relevant price gouging laws before setting a price for their new good or service.… Continue Reading

Pricing Controls under the Defense Production Act

With the federal government’s increasing focus on enforcing price gouging compliance, attention has turned to the Defense Production Act (the “DPA”). Passed in 1950 in response to the Korean War, the DPA is modelled on the War Powers Acts of 1941 and 1942 and gives the President, among other things, sweeping power to control the … Continue Reading

When Will It End? – Price Gouging Restrictions Remain in Place for Uncertain Period

The pandemic has demonstrated that price gouging laws are not only written in an ambiguous manner, but are ambiguous as to whether they are in effect or not. A recurring problem faced by businesses is that some states are not widely circulating information about whether their price gouging laws are still active, when they expire, … Continue Reading

Federal Price Gouging Enforcement Update

While the majority of price gouging enforcement has occurred at the state level (see Proskauer on Price Gouging — A Coast-to-Coast Reference Guide), the federal government has also been active, and several federal price gouging bills have been introduced, though none have been signed into law. See, e.g., S. 3574 (empowers the FTC and Attorney … Continue Reading

Price Gouging Compliance Practice Tips: Conduct a Price Gouging Audit

Understanding and Reacting to New and Increased Risks Businesses are facing new and increased risks as they work to continue operations and meet changing demand. The unprecedented duration and nationwide scope of the emergency has created additional complexities for companies that operate on a nationwide basis. They often must comply with price gouging laws in … Continue Reading

Price Gouging Laws and the Dormant Commerce Clause?

During the pandemic, businesses are asking about their potential price gouging liability in states that they do not sell into directly but where their products might end up. At least one federal circuit court addressed this question in examining a Maryland price gouging law that covered pharmaceuticals (outside the emergency context), ultimately striking down the … Continue Reading

“Covid Surcharges” – Fair Game, or a Price Increase by Another Name?

As businesses figure out how to be creative and continue to operate during the pandemic, some have turned to “Covid surcharges” to account for new or increased costs. “Surcharges” may seem more benign than direct price increases. Still, they need to be considered with an eye towards compliance with local price gouging laws.… Continue Reading

Pricing Around the Margins: Is it Price Gouging if My Costs Have Gone Up?

Despite the continued implementation of state price gouging laws, many companies have been able to legally raise their prices by relying on exceptions related to cost increases. Many have asked whether the exception nevertheless presents risk to the extent it is used as a basis to maintain current margin levels. While this is not a settled … Continue Reading

Price Gouging and Services: Third-Party Food Delivery Price Gouging?

As new restrictions addressing the economic impacts of COVID-19 continue to be proposed, some are targeting price increases for services. Businesses may want to re-familiarize themselves with the “services” covered by existing price gouging laws and pay close attention to developments, as they may cover unexpected areas.… Continue Reading

Clearance to Reduce Capacity May Not Be Clearance to Raise Prices: Can Business Review Letters Impact Price Gouging Compliance?

In response to the current pandemic, antitrust enforcers at the Department of Justice have been issuing business review letters at record pace. One of these business review letters addressed an inquiry from the pork industry about reducing supply based on the COVID pandemic disruption. This raises the question as to whether the DOJ letter about antitrust … Continue Reading

When Do Price Gouging Laws Expire?

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 … Continue Reading

State Liquor Law Tossed: Industry Changes Ahead

In a decision with major implications for fans of wine, liquor, or free trade, the Supreme Court has affirmed a ruling that struck down a Tennessee law, which imposed certain residency requirements to operate retail liquor stores, as impermissibly violating the Commerce Clause. Tennessee Wine and Spirits Retailers Assn. v. Thomas. Justice Alito, writing for the majority … Continue Reading

Consolidation, Like Marriage, Preserves the Distinct Identities and Rights of Its Constituents

In its recent decision in Hall vs. Hall, the U.S. Supreme Court ruled unanimously that after a final decision in one of several consolidated cases, the losing party has the immediate right to appeal that decision, even when other consolidated cases are still pending. Courts may consolidate cases for efficiency. Writing for the Court, Justice … Continue Reading

Privacy vs. Security: Will SCOTUS Leave the (Third) Party in 2018?

If the government obtains information about your past locations from your wireless provider, is that a search? If so, is it a search that requires the government to obtain a warrant? Courts have held that, because companies collect this kind of data in the ordinary course of business, consumers who voluntarily provide information to these … Continue Reading
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