Two federal price gouging bills were recently introduced in Congress. Senator Elizabeth Warren led the introduction of the Price Gouging Prevention Act of 2022. The bill prohibits “unconscionably excessive price[s]” at any point in a supply chain or distribution network during an “exceptional market shock” triggered by a range of events – including public health emergencies. The law would apply to any good or service offered in commerce, and would authorize the Federal Trade Commission and State Attorneys General to enforce the prohibition. Additionally, during “exceptional market shocks,” the law would require public companies to disclose and explain changes in pricing and gross margins in quarterly SEC filings—raising the specter of SEC enforcement with respect to those disclosures.
Changes to Rule 702 Cement Judge’s Role as Gatekeeper for Expert Testimony
A proposed amendment to Federal Rule of Evidence 702, which governs the admissibility of expert testimony in federal court, could clarify the evidentiary burden on proponents of expert testimony and a court’s role regarding its admissibility. Motions under Rule 702, frequently called Daubert motions after the Supreme Court’s opinion Daubert v. Merrell Dow Pharmaceuticals Inc., are used to limit or otherwise exclude an expert’s testimony to a jury. These motions are often critical to a case’s success, especially in fields that rely heavily on experts such as antitrust, product liability, toxic torts, and environmental litigation. An amendment to Rule 702 currently under consideration looks to clarify the proper evidentiary standard for such motions.
Revisiting Price Gouging Compliance
With the Biden administration ramping up scrutiny on supply chains and pricing practices, businesses should take a moment to revisit their COVID-19 price gouging compliance. As we’ve previously highlighted, risk management with ever-shifting price gouging restrictions requires careful consideration of documentation and oversight of pricing practices and decisions. For reputable companies up and down the national supply chain, compliance with the array of state price gouging laws requires more than intuition and a moral compass. Even with the best intentions, many businesses inadvertently run afoul of price gouging laws. Because price gouging statutes can cover more than obvious bad conduct and point-of-sale pricing to consumers, manufactures and suppliers should consider implementing procedures to assess whether they are required to comply with pricing restrictions, whether they are complying, and how to manage compliance. Below we outline some key considerations for businesses.
Price Gouging Updates: Warren Accuses Large Corporations of Price Gouging; Plaintiffs Respond in Amazon Price Gouging Case
In an interview on All In with Chris Hayes in January, Sen. Elizabeth Warren, D-Mass., claimed that a factor causing the high prices facing U.S. consumers is “giant corporations who say, wow, a lot of talk about high prices and inflation. This is a chance to get in there and
What the Omicron Variant Could Mean For Price Gouging Enforcement in New York
New York Governor Kathy Hochul has declared a disaster emergency for the state through January 15, 2022 in the wake of rising COVID-19 cases in the state and the newly identified Omicron variant. According to The Wall Street Journal, New York is the first state to declare a state of emergency in response to Omicron, although many states have remained under declared states of emergency since the beginning of the pandemic. New York allowed its previous declared state of emergency to expire on June 24, 2021.
Price Gouging Litigation Continues Apace
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 Marketplaces Could Expose Third-Party Sellers to Price Gouging Liability
On July 2, 2021, a group of consumers filed a putative class action in Washington District Court alleging Amazon engaged in unlawful price gouging during the COVID-19 pandemic on a variety of products. The case is noteworthy because Washington does not have a specific price gouging statute. Instead, plaintiffs argue that the alleged price gouging is an “unfair or deceptive act[] or practice[] in the conduct of any trade or commerce” in violation of Washington Consumer Protection Act (“WCPA”). Commentators have speculated that one of the purposes for filing in Washington is to pursue, in a state court, nationwide damages from Amazon.