Nicollette R. Moser

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While the majority of states have had price gouging laws on the books since before the pandemic, widespread pandemic price gouging has led states without laws to reconsider. Some states, like Colorado, passed price gouging legislation mid-pandemic, but other states, including New Hampshire and Washington, are now playing catch up.

“Mark my words: Change is coming. Laws are coming.” That was the warning David Cicilline (D-RI) – the House Judiciary Antitrust, Commercial, and Administrative Law Subcommittee Chairman – gave on February 25th at the first in a series of hearings following the Subcommittee’s 16-month probe into Big Tech’s gatekeeping power. This one, titled Reviving Competition, Part 1: Proposals to Address Gatekeeper Power and Lower Barriers to Entry Online, focused on three proposed reforms: interoperability and data portability requirements, nondiscrimination rules, and structural separation. The majority of the hearing witnesses, ranging from the CEO of Mapbox to the Director the Competition Advocacy Program at the Global Antitrust Institute, were clear supporters for these proposed reforms. While none are new ideas, each, if passed, would be a significant sea change in competition law.  

In the wake of the deep freeze that recently swept the nation, natural gas has taken the forefront among a slew of price gouging allegations. Last week’s winter storms caused natural gas spot market prices to spike, with some reporting up to a 100% percent increase. Reports also surfaced of spot prices for wholesale electricity in Texas’ power grid increasing more than 10,000%. In response, Minnesota Senator Tina Smith (D-MN) has not only encouraged federal regulators to investigate the price spikes, but has also requested regulators to “[i]nvoke, as appropriate, any emergency authorities available, including under the Natural Gas Policy Act, to allocate natural gas supplies at fair prices.” Whether natural gas prices exceeded allowable limits under applicable price gouging statutes currently in effect depends, among other things, on whether natural gas is within the scope of these laws in the first place.

As companies continue to examine their pricing in light of the ongoing COVID-19 pandemic, state attorneys general and private plaintiffs continue to bring suits under state price gouging laws. The complaints include requests for a range of remedies, including injunctions, disgorgement, restitution, fines, or other financial penalties. With the majority of price gouging laws having now been in effect for almost a year, we have seen businesses and state attorneys general enter into a variety of settlements. These settlements are a useful tool for businesses looking to gauge their risk as it relates to price gouging enforcement and compliance.

The gravity of the pandemic is palpable, and seemingly constant news about it is hard to escape, with recent reports including updates on the availability of vaccines, the changing scope of various stay-at-home orders, and the perceived risks of new COVID-19 variants.  But there will come a time—perhaps sooner than the pessimists predict—when this will no longer be the all-consuming story it has been for the past ten months.  In this post, we address a few of the strongest reasons that most pricing restrictions may be lifted before the start of the next school year.

Businesses regularly engage in promotional pricing and discounts as a sales strategy to attract customers.  However, what happens if a business enacted a promotional price right before the pandemic struck and price gouging laws were triggered?  Are those businesses stuck with those promotional prices until states of emergency come to an end and price gouging laws are turned off?  Some state price gouging laws explicitly provide an exception for promotional or discount pricing.  And while other states are silent on the issue, that doesn’t mean businesses are without a defense.

In some ways, it feels like the country is moving into another phase of how we experience the COVID-19 pandemic. With two vaccines in distribution, and more vaccine approvals possible, the pandemic could very well be effectively managed much sooner than experts initially feared. Given the light the end of the tunnel, it is worth renewing talk of how long state and federal price gouging restrictions could remain in place. Emergency declarations and their attendant price restrictions could continue longer than some might hope. In this post, we unpack a few of the strongest indications that these restrictions could endure until the end of the calendar year or beyond.

On November 18, 2020 the Idaho Attorney General entered into a settlement agreement with three gasoline retailers following an investigation into alleged price gouging. The settlement agreement, which focuses largely on the unique restitution system it creates, discloses that the allegations in the case stemmed from the companies’ motor fuel prices following Idaho’s declaration of a state of emergency on March 13, 2020. Findings in an Idaho Statesman investigation into the settlement agreement suggest that Attorneys General are continuing to push the envelope and bringing sometimes aggressive price gouging claims.