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Price-Gouging Enforcement During the Covid-19 Pandemic

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Price-Gouging Enforcement During the Covid-19 Pandemic December 2020 Antitrust Health Care Chronicle Vol. 34, Issue 1 Price-Gouging enforcement during the covid-19 pandemic Since the beginning of the COVID-19 pandemic, federal and state agencies have emphasized through public statements and enforcement actions that they are on the lookout for unlawful price gouging. With ongoing shortages of personal protective equipment and surging demand for health care products, pricing in the health care industry is likely to be under intense scrutiny as the pandemic continues. This article will summarize recent statements and actions by federal and state antitrust enforcers regarding price gouging, which provide insight into customary practices for enforcement in the health care and pharmaceuticals sector. materials or materials the supply DOJ is Leading Federal of which would be threatened by” accumulation beyond reasonable demands or for the purpose of resale Gouging at excessive prices.4 Any person who willfully accumulates designated The U.S. Department of Justice (“DOJ”) materials for a prohibited purpose has taken the lead on price gouging at the federal level by creating and/or imprisonment for up to one the COVID-19 Price Gouging Task year.5 The DPA does not create any Natalie Hayes1 Force to monitor and investigate related private right of action, so allegations of unlawful price gouging Associate, Weil, Gotshal & enforcement is solely within the and by bringing criminal cases Manges, LLP purview of government enforcers. against alleged price gougers. The Federal Trade Commission (“FTC”), On March 23, 2020, President Trump in contrast, is unlikely to take action issued an executive order delegating regarding price gouging without new his authority under Section 102 to legislation because the FTC’s current the Secretary of Health and Human statutory mandate may not include 2 Services (“HHS”) to “prevent hoarding price gouging. of health and medical resources necessary to respond to the spread Federal Legal Authority of COVID-19 within the United States.”6 Shortly after the President The Defense Production Act of 1950 issued the executive order, HHS (“DPA”) allows the DOJ to bring designated 15 categories of health criminal charges related to price care items as scarce materials subject gouging in certain circumstances. to Section 102 of the DPA, including The DPA does not explicitly prohibit ventilators and related materials, high prices; instead, it provides for hydroxychloroquine, sterilization criminal penalties against anyone services, disinfecting devices, who accumulates certain materials several types of respirators, and “for the purpose of resale at prices in 3 several types of personal protective excess of prevailing market prices”. equipment.7 The initial designation Under Section 102 of the DPA, the President has broad authority to 2020, HHS extended the designation designate materials that are “scarce for another 120 days and designated 1 The author is an associate in the Litigation 3 Defense Production Act of 1950 §§ 102-103, 50 Department at Weil, Gotshal & Manges LLP. Any U.S.C. §§ 4512-3 (2018). views expressed are those of the author alone at the time of publication and do not necessarily 4 Id. at § 4512 5 Id. at § 4513. 2 Letter to The Honorable Joseph Simons, Chairman, 6 Exec. Order No. 13910, 85 Fed. Reg. 17,001 (2020). FDuring a legislative hearing, FTC Chairman Joe Simons was asked whether the FTC currently 7 Notice of Designation of Scarce Materials or has enough authority to address price gouging. Threatened Materials Subject to COVID-19 Hoarding Chairman Simons responded, “no, we don’t really Prevention Measures Under Executive Order 13910 think that we have the authority now to do it. It is and Section 102 of the Defense Production Act of Teleconference 1950, 85 Fed. Reg. 17592 (Mar. 25, 2020), https:// Forum with FTC Chairman Simons Before the Subcomm. on Consumer Prot. and Commerce of the H. Comm. on Energy & Commerce, 116th Cong. (2020), https://www.youtube.com/watch?v=kalFV_ 23 K4G1E&feature=youtu.be. December 2020 Vol. 34, Issue 1 additional scarce materials, the National Center for Disaster HHS designated certain materials as including certain materials used for Fraud. scarce under the DPA. In April 2020, isolation of viral genetic materials the first case was filed against and testing, drug products U.S. Attorney Carpenito recently Amardeep Singh for hoarding recommended by the National spoke about the DOJ’s approach to personal protective equipment in Institutes of Health to treat COVID- investigating allegations of price New York and reselling the 19, and alcohol-based sanitizers.8 gouging and acknowledged that the equipment at a substantial markup task force is focused on in his retail store.14 Singh allegedly DOJ COVID-19 Hoarding and profiteering—not on high prices received at least 40 shipments of Price Gouging Task Force charged by resellers with higher- facemasks and 14 shipments of than-typical costs. Carpenito said: surgical gowns, including some that On March 24, 2020, Attorney had been designated as scarce by General William Barr created the When the task force sees HHS.15 Singh then allegedly sold COVID-19 Hoarding and Price substantially higher prices, it these and other medical, Gouging Task Force within the DOJ inquires whether the disinfecting, and personal protective to investigate and prosecute those legitimate costs of the equipment products at prices in who violate the DPA.9 The task force reseller are high. If, in order excess of prevailing market prices.16 is led by Craig Carpenito, the U.S. to turn any profit or simply These sales allegedly included sales Attorney for the District of New break even, the reseller must of three-ply disposable masks at a Jersey, with assistance from the set a high resale price, even a markup of 1,328%.17 Investigators Antitrust Division’s Criminal Section, price much higher than other found more than 100,000 face and is composed of experienced transactions in the market, the masks, 10,000 surgical gowns, DOJ attorneys from around the fact that the reseller is not nearly 2,500 full-body isolation suits, country.10 The task force’s mission is profiteering is important for and more than 500,000 pairs of 12 to address market manipulation, us to consider. disposable gloves during a search of hoarding, and price gouging related Singh’s warehouse and retail store to COVID-19 and to coordinate the Moreover, according to Carpenito, on April 14, 2020.18 investigation and prosecution of the task force will consider if a these activities across the U.S.11 As reseller is charging a price Shortly after bringing the case part of this mission, the task force substantially higher than the against Singh, the DOJ brought has created a reporting system for traditional price for a product but another case in New York, charging complaints about hoarding or price has costs that are generally in line Kent Bullock and William Young Sr. gouging of medical items through with costs of a traditional with violation of the DPA by 13 distributor. knowingly and intentionally 8 conspiring to accumulate personal Extension of Designation of Scarce Materials Federal Investigations and or Threatened Materials Subject to COVID-19 Hoarding Prevention Measures Under Enforcement Actions Executive Order 13910 and Section 102 of the 14 Press Release, Dep’t of Justice, Long Island Man Charged Under Defense Production Act Defense Production Act of 1950, 85 Fed. Reg. The DOJ has brought at least four 45895, with Hoarding and Price-Gouging of Scarce https://www.govinfo.gov/content/pkg/FR- criminal price gouging cases since Personal Protective Equipment (Apr. 24, 2020-07-30/pdf/2020-16458.pdf. 2020), https://www.justice.gov/usao- edny/pr/long-island-man-charged-under- 9 12 Memorandum from Att’y Gen. William Barr COVID-19 Fraud: Law Enforcement’s Response defense-production-act-hoarding-and-price- for Heads of Dep’t Components and Law to Those Exploiting the Pandemic Before the S. gouging-scarc-0. Enforcement Agencies, All U.S. Attorneys Comm. on the Judiciary, 116th Cong. 1 (2020) 15 (Mar. 24, 2020), (emphasis added) (joint statement of William Id. https://www.justice.gov/file/1262776/downlo Hughes, Assoc. Deputy Att’y Gen., and Craig 16 Id. ad. Carpenito, U.S. Att’y for the District of New Jersey). 17 Id. 10 Id. 13 Id. 18 Id. 11 Id. 24 December 2020 Vol. 34, Issue 1 protective equipment, including different model of N95 mask that The DOJ’s recent activities and KN95 respirators and surgical masks cost him $10 each.24 enforcement actions, including for the purpose of “resale at prices Carpenito’s testimony and in excess of prevailing market Ronald Romano, a used car statements by U.S. Attorneys, prices”.19 Bullock and Young salesman, was also arrested on May suggest that the DOJ will continue to allegedly sought to resell one million 26 and charged with violating the investigate and bring enforcement KN95 respirators in New York at a DPA.25 Romano allegedly attempted actions against price gouging for the substantial markup between March to acquire N95 respirators for resale duration of the pandemic. and April 2020.20 In at least one to the City of New York at a 400% instance, the alleged price markup over the list price and Key State Statutes and three-ply facemasks for resale to the represented a 300% to 400% Recent Enforcement increase compared with pricing State of Florida at a markup of more before the COVID-19 pandemic.21 than 500% over the manufacturer’s Actions price.26 On May 26, 2020, Richard Schirripa The DOJ is not the only enforcement was arrested on charges of price Other DOJ Activity agency investigating price gouging. gouging in the sale of N95 Many states have statutes that respirators.22 Schirripa, a In addition to the activities of the prohibit price gouging in certain pharmacist, allegedly spent task force, many U.S.
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