Minding Your Business

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

Tag Archives: covid-19

Double Masking is Good, but Still Make Sure You Can Be Heard in a Deposition

As the legal profession continues to adjust to the COVID-19 pandemic, even something as normal and regular as a deposition has often become an adventure. Even after accounting for the immediately obvious questions (is in-person too dangerous or not allowed? If conducting a remote deposition, what vendor should I use?) and all-to-common glitches like connectivity … Continue Reading

DPA Update: Biden Administration Brings Renewed Focus to Defense Production Act

As part of the federal government’s efforts to combat the COVID-19 pandemic, President Biden plans to “fully use” the Defense Production Act (the “DPA”) to compel production of medical and protective equipment, and ensure adequate supplies and distribution of vaccines. On January 21, 2021, the White House released its National Strategy for the COVID-19 Response … Continue Reading

Price Gouging Settlements Around the Country: Non-Compliance May Cost You

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 … Continue Reading

COVID-19 “Not a Golden Ticket” to Avoid Discovery Obligations

The COVID-19 pandemic has unquestionably had a massive effect on nearly all aspects of American life.  However, now that COVID-19 is and continues to be a known risk, parties should carefully consider when and to what extent it can be invoked to obtain an extension or continuance with respect to discovery obligations.… Continue Reading

Are Long-Term Pricing Controls Here to Stay? Three Reasons the Optimists Might Be Right

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 … Continue Reading

Price Gouging Laws: Can Promotional Pricing Become Your New Price?

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 … Continue Reading

COVID-19 and Immunity from Liability

Millions of people across the country are waiting to get the COVID-19 vaccine.  For businesses, immunity is sought not against the virus but against liability, and, in some cases, businesses have been successful in invoking COVID-19 as a means to do so.  Recently, the Southern District of New York held that the pandemic immunized a … Continue Reading

Are Long-Term Pricing Controls Here to Stay? Three Reasons the Pessimists Might Be Right

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 … Continue Reading

Idaho Attorney General Pumps Brakes on Gas Sales

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 … Continue Reading

Costs of COVID-19 Vaccines: What We Do and Don’t Yet Know

The roll-out of vaccine approvals has led to some confusion over what charges consumers might be asked to cover. This echoes the confusion previously discussed with respect to COVID-19 diagnostic and antibody test pricing. But consumers, providers, and others that will have any involvement with vaccine production, distribution, or administration should be aware that the Coronavirus … Continue Reading

Navigating Chapter 11 Reorganizations during COVID-19: New Complications or Business as Usual?

In the best of times, a chapter 11 reorganization is an uncertain and stressful process for all involved. When the disruptive effects of COVID-19 are added to the mix, and many businesses face significant economic difficulties, one can begin to appreciate the daunting task facing bankruptcy courts, debtors, creditors, and their lawyers.… Continue Reading

Ordering Out During the Pandemic: Surcharges and Delivery Fee Caps Might Be Here to Stay

Reports of restaurants adding a “COVID surcharge” have become widespread during the pandemic. In recent months, cities and states across the nation have implemented a number of measures designed to help struggling restaurants adapt to the new normal. These include allowing restaurants to implement a “surcharge,” as well as capping fees that third-party delivery services … Continue Reading

California Price Gouging Update: Class Action Filed Against Restaurant Group

On November 24, 2020, a class action price gouging claim was filed against a California based operator of casual fine dining restaurants. The class action lawsuit against Hillstone Restaurant Group alleges price gouging in violation of California Penal Code §396. According to the lawsuit, “Hillstone engaged in unfair and unlawful business practices by increasing its … Continue Reading

International Spotlight: Price Gouging Restrictions in Brazil Converging with U.S. Enforcement

Companies that sell consumer products worldwide should note the growing convergence between Brazil and the United States for the use of anticompetitive practices laws to prosecute price gouging.  The Brazilian Competition Law (Law No. 12,529/2011) prohibits a non-exhaustive list of anticompetitive practices, including engaging in acts that “arbitrarily increase profits.”  Brazil’s antitrust authority, Conselho Administrativo … Continue Reading

When Emergencies Become De Rigueur

Many are asking how long states of emergency can continue to be renewed, and whether such extended renewals are permissible or valid. Given the lack of comparable precedent, there is some uncertainty around the issue. Expectations are that while some courts are likely to defer to the use of extraordinary executive power, not all will … Continue Reading

Alleged Price Gouging in the District of Columbia? Attorney General Racine Sets Sights on Local Business

On November 12, 2020, D.C. Attorney General Karl Racine filed a lawsuit against Capitol Petroleum Group, LLC (“CPG”), a retailer and distributor of gasoline in the District. According to Attorney General Racine, CPG overcharged its customers for gasoline in violation of the Natural Disaster Consumer Protection Act (“NDCPA”). This is the latest example of aggressive … Continue Reading

A Test Costs What? Pricing and Reimbursing COVID-19 Tests

Out-of-network providers appear to be inflating the price of COVID-19 diagnostic and antibody tests, according to a recent America’s Health Insurance Plans (AHIP) survey. The October 2020 survey reports that out-of-network providers, as a whole, were charging higher prices for nearly half of the COVID-19 diagnostic tests and a third of antibody and antigen tests—a … Continue Reading

International Spotlight: Price Gouging Restrictions in China

China has a very different approach to price gouging restrictions than the state level system in place in the United States. As the Chinese market is of particular importance to our readers and their businesses, operators may benefit from unpacking the anti-price gouging rules contained in national laws and the reinforcing measures against price gouging … Continue Reading

Price Gouging and Bad Intent: How Much Does it Matter?

Although much of the coverage relating to price gouging enforcement has focused on bad actors hoarding pandemic-related goods, businesses that make good faith efforts to comply with the panoply of price gouging restrictions may nevertheless find themselves in the crosshairs. The relevant statutes typically impose a form of strict liability, and do not take motive … Continue Reading

Price Gouging Restrictions Beyond the 50 States

We continue to cover the patchwork of price gouging laws and enforcement actions brought under them, providing an overview of the current legal landscape. We are also following and will report on the application of price gouging restrictions outside the U.S. In this post, we provide an overview of price gouging restrictions applied by several … Continue Reading

When Governors Bite Back: Circuit Court Upholds Hawaii Governor’s Emergency Powers

As mentioned in our previous post, the legality of state Governors’ emergency powers have come under scrutiny during the pandemic. Michigan’s Supreme Court, for example, recently struck down Governor Gretchen Whitmer’s emergency powers. The Hawaii Circuit Court, however, recently dismissed a legal challenge to Hawaii Governor David Ige’s emergency powers. In response to the victory, … Continue Reading

Anatomy of a Price Gouging Suit

If there is a silver lining to the extended application of most state price gouging laws, it is that we now know more about their ramifications. State attorneys general have launched numerous investigations and brought many lawsuits, and several class actions have been filed by consumers against companies for alleged price gouging up and down … Continue Reading

Michigan Supreme Court Strikes Down Governor’s Emergency Powers

Are Michigan’s Enhanced Price Gouging Provisions Undone? As much of the country remains under various and often overlapping states of emergency, one Governor’s powers have been limited by a state supreme court. On October 2, 2020, the Michigan Supreme Court held that Michigan Governor Gretchen Whitmer did not have authority to issue or renew COVID-related … Continue Reading

California Strengthens Penal Code Section 396, Codifies Price Gouging Executive Order

Since the beginning of the pandemic, many governors have issued executive orders targeted at combating price gouging. However, one California state senator, Senator Thomas Umberg, proposed going a step further. In April 2020, Senator Umberg introduced Senate Bill 1196, which would codify many of the provisions in California Governor Gavin Newsom’s Executive Order N-44-20. On … Continue Reading
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