Competition Corner

AAG Blizzard’s announcement marks the latest in a trend of increasing focus and scrutiny from state-level antitrust enforcement agencies. This change suggests that many states are standing ready to address antitrust enforcement if federal enforcement, which has been reinvigorated under the Biden administration, is weakened.  

On September 27, 2023, a Louisiana federal court issued a landmark ruling addressing the intersection of the Hart-Scott-Rodino (HSR) Act and the Certificate of Public Advantage (COPA) regimes adopted by various states.

While regulators are signaling their goals to revise and strengthen merger enforcement, they are picking a fight against a particular obstacle to achieving their vision in health care. Specifically, the Federal Trade Commission is currently pushing states to restrict their use of Certificates of Public Advantage. 

On July 7, 37 attorneys general from various states and the District of Columbia filed a lawsuit against Google in the Northern District of California alleging antitrust violations related to Google’s Play Store. The complaint alleges that Google maintains unlawful monopolies in the app distribution and in-app payment processing markets on the Android operating system.

In this episode of Winston & Strawn’s Competition Corner Podcast, Attorneys Molly Donovan and Jeff Amato discuss the general legal framework of price-gouging prohibitions that have been triggered by the ongoing crisis. They provide best practice tips for companies to minimize liability including legitimate justifications for increasing prices during an emergency.

New York Attorney General Letitia James has made the prosecution of price gouging offenses a top priority during the COVID-19 pandemic. However, the AG’s Office hit its first major roadblock on September 23 when the New York Supreme Court dismissed its case against a wholesaler that was accused of doubling the price for Lysol Disinfectant Spray during the pandemic. The court’s decision, which is the first to apply New York’s price gouging laws in the context of COVID-19, may shed light on some of the obstacles that the AG will face as other pandemic-related price gouging cases move forward.

On September 14, 2020, the New York Senate Standing Committee on Consumer Protection held a hearing to discuss New York’s antitrust laws, and specifically the Twenty-First Century Antitrust Act (S. 8700-A), which was introduced in July by Senate Deputy Leader Michael Gianaris and Senator Rachel May. As Senator Gianaris noted discussing S. 8700-A, New York’s current antitrust law, the Donnelly Act, was “written over a century ago,” and was “intended to deal with an economy that no longer exists.” 

In the wake of the COVID-19 pandemic, Attorneys General from numerous states have been actively investigating potential instances of price gouging by sellers. On August 11, New York Attorney General Letitia James filed a lawsuit accusing Hillandale Farms, a major Pennsylvania egg producer, of taking advantage of consumers by illegally hiking prices during the crisis.

While the antitrust laws have long protected a merchant’s freedom to charge a price as high as the market will bear so long as it is set unilaterally, price-gouging laws curtail that freedom when a state of emergency has been declared. At both the state and federal level, COVID-19 has given rise to a substantial new focus on pricing practices in an effort to combat price gouging on a broad range of products, including essential supplies like hand sanitizer, food products, and personal protective equipment.