August 8, 2020

Volume X, Number 221

August 07, 2020

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August 06, 2020

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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, or whether they’ve already expired. As a result, law abiding businesses may find it difficult to find accurate, publicly available information about price gouging law end dates.

Some commentators have categorically stated – potentially incorrectly – that certain price gouging laws have expired. For example, some say that Kentucky’s price gouging law expired on April 21, 2020. By statute, Kentucky’s price gouging law is in effect for fifteen days after notification of the price gouging law going into effect. After the fifteen days expire, the Governor may renew the provisions up to “three additional fifteen (15) day periods [] if necessary to protect the lives, property, or welfare of the citizens”.  Ky. Rev. Stat. §367.374(1)(b). Despite what the statute says, the Governor continued to extend the price gouging law, and on May 21, 2020, issued an executive order stating that the price gouging laws shall remain in effect for the duration of Kentucky’s state of emergency. However, it is unclear whether the Governor has the authority to extend price gouging laws beyond the length laid out by statute. Other state Governors, who have extended price gouging laws beyond the scope of the respective state statute, may also find the legality of the extensions questioned.

Further, while it appears Tennessee’s price gouging law may have expired – as some have indicated – the Tennessee’s Office of the Attorney General, Division of Consumer Affairs has not provided clarity on the question. In early June, the Division said the statute is still in effect. In early July, the Division stated that while they’re happy to take any consumer complaints, they are unable to answer whether the price gouging statute is still in effect.

Also noteworthy, when the Wisconsin Bureau of Consumer Protection was recently asked whether there is still an abnormal market disruption, the Bureau stated that they are still accepting price gouging complaints, but have “no idea” when the abnormal market disruption will end. One day later the Wisconsin Department of Agriculture, Trade and Consumer Protection released a statement stating “Governor Tony Evers approved ending the declared period of abnormal economic disruption, allowing sellers to resume sale of consumer goods and services without the restrictions outlined in Wisconsin’s price gouging statutes.”

Businesses making efforts to comply with the law need to know the law in order to comply. The lack of clarity is not only poor policy, but it is bad government. A state’s consumer protection agency should be able to give businesses a simple yes or no answer as to whether a price gouging law remains in effect.

© 2020 Proskauer Rose LLP. National Law Review, Volume X, Number 191

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About this Author

Christopher Ondeck, Antitrust Litigator, Proskauer Rose, law firm
Partner

Chris Ondeck is a partner in the Litigation Department and vice-chair of the Antitrust Group. He focuses his practice on representing clients in civil and criminal antitrust litigation, defending mergers and acquisitions before the U.S. antitrust agencies, defending companies involved in government investigations, and providing antitrust counseling.

Chris has handled antitrust matters for clients in a number of industries, including advertising, aerospace, alcoholic beverages, appliances, building materials, defense, medical devices, metals,...

202-416-5865
John Ingrassia, Antitrust Attorney, Telecommunications, Proskauer Law firm
Special Counsel

John Ingrassia is a special counsel and advises clients on a wide range of antitrust matters in various industries, including chemicals, pharmaceutical, medical devices, telecommunications, financial services, health care, and others. His practice includes a significant focus on the analysis of Hart-Scott-Rodino pre-merger notification requirements, the coordination and submission of Hart-Scott-Rodino filings, and the analysis and resolution of antitrust issues related to mergers, acquisitions, and joint ventures. John has extensive experience with the legal, practical, and technical requirements of the Hart-Scott-Rodino Act, and is regularly invited to participate in Federal Trade Commission and bar association discussions regarding Hart-Scott-Rodino practice issues. 

John also advises clients regarding international antitrust issues arising in proposed acquisitions and joint ventures, including reportability under the EC Merger Regulation and numerous other foreign competition filing regimes, and liaising with local counsel to coordinate foreign pre-merger notifications and ensure the efficacy and consistency of the competition law theories advanced.

202.416.6869
Kelly Landers Hawthorne, Proskauer Law Firm, New York, Litigation Attorney
Associate

Kelly Landers Hawthorne is an attorney in the Litigation Department.

Education

  • Columbia Law School, J.D., 2017

  • George Mason University, M.Ed., 2013

  • University of Richmond, B.A., 2011

212-969-3537
Law Clerk

Nathaniel Miller is a Law Clerk in the litigation department. He works for the firm's New York offices. 

Education

  • New York University School of Law, J.D., 2017
  • Harvard University, B.A., 2014
212-969-354
Nicollette R. Moser Litigation & Antitrust Proskauer Rose Washington, DC
Associate

Nicollette Moser is an associate in the Litigation Department and a member of the Antitrust Group.

Related Practices

  • Litigation
  • Antitrust

Admissions & Qualifications

  • District of Columbia
202.416.5862