Price Gouging and the Pandemic: A Long Way to Go

Jeff Jacobson spoke on price-gouging laws during the COVID-19 pandemic. The current gouging laws were written with short-duration events like storms in mind, not multiyear pandemics. At present, the states of emergency have remained constantly in place for two years, so the anti-gouging prohibitions have remained in force as well. In theory, any price increase since March 2020 of any “necessity” good can be the basis for a gouging claim.

Lawmakers were thinking about retailers jacking up prices of goods already on shelves, not multiple waves of resupply, and were contemplated local or regional emergencies, not long-term national ones. Some statutes are deliberately ambiguous about the goods they cover, which is fine for short-term emergencies, but not for something like COVID-19.

State attorney general enforcements likely would focus on core bad actors, not those who made good-faith mistakes. However, many states allow for private class actions under anti-gouging laws; and the plaintiffs’ bar may cast a much wider net, targeting any price increases of any goods covered by each state’s law. Depending on the state, private class actions may be filed three to six years after the alleged conduct. For attorney general enforcements, the limitations may be 10 years, or there may be no bar period.