Enforcement

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Earlier this month, President Biden announced the formation of a “Strike Force on Unfair and Illegal Pricing.” This strike force will be an interagency group co-chaired by the FTC and DOJ. President Biden stated the group will focus on industries including “prescription drugs, health care, food and grocery, housing, [and] financial services.” While the exact makeup of the strike force is not clear, it has been reported that FTC Chair Lina Khan and Jonathan Kanter, Assistant Attorney General in the DOJ’s Antitrust Division, will co-chair it. 

Effective choice of court clauses (also known as jurisdiction clauses) are central to finance agreements. Reliable, certain process to enforce contractual obligations is essential for cross-border trade and finance transactions. Parties want to be sure that any disputes will be heard not just according to their chosen law but in their chosen forum, and that any judgment obtained can be easily and reliably enforced, including abroad if needed.   

Making do on its promise to “use every tool” in its arsenal to regulate artificial intelligence (‘AI”), the Federal Trade Commission (“FTC”) unanimously approved a resolution on November 21, 2023 authorizing the use of compulsory process in non-public investigations involving AI-related products and services. 

New York Attorney General Letitia James announced new price gouging rules intended to clarify New York’s price gouging law, N.Y. Gen. Bus. Law §396-r, earlier this month.  The proposed rules seek to address many of the perceived limitations of the statute exposed during the COVID-19 pandemic and subsequent economic turbulence triggered by supply chain bottlenecks and record inflation.  Public comments on the proposed rules are due May 1, 2023.

Antitrust claims in a class action case filed against Amazon in U.S. Federal District Court will largely proceed, after the Court allowed most of the consumers’ pricing claims to survive a motion for summary judgment.  The Court dismissed a Sherman Act claim, but allowed most other claims to proceed.  Of particular note, Amazon’s “most favored nation” (MFN) policy will continue to be under scrutiny, despite the fact that courts typically do not find MFNs to be anticompetitive.  It is widely recognized that MFNs, in fact, often serve procompetitive purposes.

One of the bellwether price gouging cases from the early days of the COVID-19 pandemic was recently reversed and remanded by New York’s First Judicial Department of the Appellate Division.  

New York Attorney General Letitia James announced in May 2020 that her office had filed a lawsuit against a wholesale grocery distributor – Quality King Distributors – and its CEO for price gouging. The lawsuit alleged that between January 2020 and April 2020, Quality King raised the price of Lysol when its costs had not increased, “dramatically boost[ing] its gross profit margins for Lysol Spray, almost quintupling them over its pre-crisis margins.” Quality King sold 46,104 cans of Lysol during the time in question, and “each time one of these [] cans of Lysol was sold at retail for an inflated price – and each time a person bought any other Lysol product whose price Quality King had inflated – Quality King’s price-gouging caused injury to a consumer,” the lawsuit stated. The Attorney General seeks, among other relief, disgorgement of all profits from the illegal practice and a civil penalty of $25,000.

New York State Attorney General Letitia James has filed a petition to compel Tyson Foods to comply with a subpoena in connection with ongoing price gouging investigations by the state.  New York’s price gouging statute imposes civil penalties on sellers of essential goods charging unconscionably excessive prices during an abnormal disruption of the market.  The subpoena requests information relating to prices, dates of sale, purchasers, costs, and profit margin for Tyson’s meat products sold in New York from December 1, 2019 through April 2022.