Competition Corner

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.

Senator Elizabeth Warren and Representative Alexandria Ocasio-Cortez are proposing a moratorium on mergers and acquisitions involving large companies for the duration of the COVID-19 pandemic.

Amidst the uncertainty due to the COVID-19 emergency, Ian Conner, the Director of the Bureau of Competition of the Federal Trade Commission (FTC) warned that the Bureau will continue to rigorously enforce the antitrust laws because there are no “emergency” exceptions to the antitrust laws.

In the face of the challenges brought by the COVID-19 pandemic, many businesses are questioning whether they are able to collaborate with competitors in ways that, under normal conditions, might risk violating prohibitions on anti-competitive behaviour.

In good news for parties seeking to quickly close transactions potentially reportable under the Hart-Scott-Rodino (HSR) Act, the Federal Trade Commission (FTC) announced that it will return to processing requests for early termination of the HSR Act waiting period, although grants of early termination will be less frequent and may take longer than normal practice.

Recognizing that the fight against the COVID-19 pandemic will “require unprecedented cooperation,” the U.S. Federal Trade Commission (FTC) and Department of Justice (DOJ) Antitrust Division (collectively, “the agencies”) provided new antitrust guidance and announced an expedited seven-day advisory opinion procedure for business collaborations responding to the coronavirus crisis, in a joint statement issued on March 24, 2020.

How does the coronavirus (COVID-19) crisis increase antitrust risk? In this episode of Winston & Strawn’s Competition Corner Podcast, Partner Eva Cole discuss the challenges companies are facing as the virus impacts supply chains, and the steps they should take to mitigate their antitrust risk.

In-house compliance teams should be on alert as the coronavirus (COVID-19) continues to spread. It is often during times of perceived crises or disasters that competitors end up discussing subjects that can be risky from an antitrust perspective (e.g., procurement costs and selling prices).