What is Price Gouging?
Price gouging is raising the price of a product excessively higher than the merchant’s cost to take advantage of a shortage caused by an emergency, like the pandemic we’re now in.
Is Price Gouging Really a Crime?
Yes, under NY State and NY City laws. The state law prohibits selling consumer goods during an abnormal disruption of the market at an unconscionably excessive price.
Who decides if the price is “unconscionably excessive” or just kind of high?
The judge does. The question is whether there was a gross disparity between the price of the goods or services before and after the emergency. If the merchant had to pay a much higher price to get the goods, he can use that as a defense.
What Can I Do if I Have Been a Victim on Price Gouging? Do I Have to Buy the Product to Complain? Read More
Is There a NY City Law Against Price Gouging?
Yes – and it’s tougher than the state law. The City’s emergency rule enacted on March 16, 2020. Any increase in price over 10% is a violation, and the City has been issuing numerous summonses to violators. Click this link for a list of the products covered by this Emergency Rule.
How Can I File a Price Gouging Complaint With the City of New York?
Click this link to go to the NYC Complaint Form. To make a City law complaint, you have to buy the product and they will ask you for a receipt.
Ladies – Toilet Paper is not covered under the City law, but you can complain to the State.
Is There a Federal Law Against Price Gouging?
No, but on March 23rd President Trump issued an Executive Order instructing the Department of Health and Human Resources and the Department of Justice (USDOJ) to enforce the anti-hoarding provisions of the Defense Production Act against those who hoard supplies of necessary health and medical resources. Read More
Can the NY State and City Governments Avoid Price Gouging? Read More
OUR NURSES HAVE A RIGHT TO BE ANGRY
First – Are Nurses Entitled To Get Paid For Their COVID Sick Days?
Everyone in New York who has to stay home because they have (or might have) COVID 19 and works for a large employer (like a hospital) is entitled to 14 days of paid sick leave, and they are guaranteed job security after their quarantine ends. For the first time in our nation’s history, we have a federal law requiring paid sick leave, Families First Coronavirus Response Act (FFCRA) that entitles employees two weeks of paid sick leave if they have COVID 19 or have symptoms and are seeking a diagnosis.
So Why Don’t Our Nurses Get These Benefits?
The federal law said that the Secretary of Labor could exempt certain “health care providers”1from these paid sick leave benefits. However, it was clear that Congress only intended to exempt doctors, or others who were licensed to provide health care independently, from this paid sick leave. Regulations, which are only meant to give guidance in applying the federal law, cracked the definition of “health care provider”, wide open basically including anyone who works in a hospital or a doctor’s office.2
This is an Outrage! Why Isn’t Anyone Doing Something About it?
Second – How Long Should They Stay Home if They Get COVID 19?
Isn’t New York State Supporting Our Nurses on This? Read More
Isn’t This Madness? Why Isn’t Something Being Done About it? Read More
There Is – On April 20, 2020, the nurse’s union filed a lawsuit against the New York State Department of Health (“DOH”), complaining about this precise issue, trying to forced them to change these guidelines. It is not only in the nurses’ best interests that our nurses get this time off – It’s obvious that they shouldn’t be going back to the hospital and exposing the other nurses, the doctors, the hospital personnel – as well as their patients, to the virus. Ironically, the State of New York is actively suing the federal government for excluding nurses from the federal paid sick leave law (above) but doing this to our nurses here at home. What’s wrong with this picture? This lawsuit brought against the State DOH and several other lawsuits against some of the hospitals, have raised numerous unsettling issues about the PPE shortages, which I will address in the next blog.
 FFCRA §§ 3105 (emergency family leave); 5102(a) (paid sick leave).
 85 Fed. Reg. at 19,351 (§ 826.30(c)(1).
I Heard That Tenants Might Not Have to Pay Rent During the Coronavirus shutdown. Is this True?
Yes – Under a proposed1 New York State Law, all residential tenants who qualify will have their rent payments suspended for the 90 days following the effective date of the new law. That means that you do not have to pay your rent if you qualify. While this is not passed into law yet [see footnote below], it probably will be by April 1, so if you qualify – HOLD OFF ON PAYING YOUR APRIL RENT!
I Rent an Apartment or Part of a House Where I Live. How Do I Qualify for This?
If you have lost income as a result of Stay in Place order, you qualify. This is meant to include everyone who has been laid off or has had their hours cut because of the Coronavirus restrictions, which has happened to millions of people. Landlords will depend on people not knowing this, and many will deny that it’s true, but if you qualify, you can “Just Say No to the landlord” just like Nancy Reagan used to say to drugs.
How Much Income Do I Have to Lose to Qualify for This?
The law, as currently proposed, includes anyone who has suffered any loss of income. Although no one knows how this will shake out yet, almost any loss of income will probably be presumed to be from the Coronavirus restrictions unless proven otherwise.
If My Rent is Forgiven, Will I Have to Pay it After the Coronavirus Pandemic is Over?
No. You will never have to pay it, you cannot be evicted for not paying it, you will not have to pay any late fees or other fess connected with it, and if your lease expires during this period, the landlord has to give you a new lease at the same rent.
Will My Landlord Get Stuck for This?
Your landlord will not have to pay the mortgage on whatever part of the property cannot collect rent due to this law. There is formula in the law to figure out how much of a break the landlord will get.
 The bill (A10224A/S8125) has already passed the Assembly and Senate, and the Governor is expected to sign it into law right away. Be aware that the bill might be subject to changes before it is passed.
Legal Backdrop to Ed O’Bannon’s Lawsuit Against the NCAA and the California Fair Pay to Play Act
In 2008, Ed O’Bannon, the former All-American UCLA power forward, happened to see his likeness on a video game which he had never authorized or been compensated for, so he sued. He became the lead plaintiff in an antitrust suit1 against the National Collegiate Athletic Association (NCAA), the maker of the video games, Electronic Arts, and the company which licensed the trademarks of the NCAA and a number of its member schools for commercial use. Sam Keller, the former starting quarterback for the Arizona State University and University of Nebraska football teams also saw his likeness on a video game, made similar claims, and the cases were joined together (consolidated) by the federal judges because they involved such similar issues.
What Does “Antitrust” Lawsuit Mean In This Context?
Antitrust suits claim violations of the Sherman Act2, which forbids any agreement or conspiracy in restraint of trade or commerce. A clear example of this would be a secret agreement between all manufacturers of a certain product not to sell that product below a certain minimum price, which would take away any incentive for the manufacturers to lower the price to compete with one another, maintaining the price at an artificially high level. O’Bannon claimed that the NCAA, by imposing its amateur athlete eligibility rules, restrained free trade and commerce by not allowing the athletes to receive any compensation under the threat of being disqualified to play. Only the NCAA rules and the agreements between these companies prevented them from being paid. They would otherwise have a clear right to be paid for this under the established rules of commercial law.
What Happened in O’Bannon’s Case? Read More
What Happened After O’Bannon’s Case?
Video games using the likenesses of college athletes became unavailable. While O’Bannon’s lawsuit was widely blamed for this, it was reported that the video game company would have been happy to negotiate with the players, but did not do so because they feared the NCAA would stop dealing with them or sue them. See, Blame the NCAA not O’Bannon
In deciding how much O’Bannon’s attorneys should be awarded in fees after winning the lawsuit, the federal magistrate judge noted that the NCAA was a behemoth organization, and likened suing them to the game of thrones: You win or you die.
It would allow college athletes in California to sign endorsement deals; earn compensation based on the usage of their name, image and likeness without no dollar amount limit, and sign all types of licensing contracts, but it would obviously not allow them to be paid for actually playing. This law says that the NCAA cannot enforce its amateur eligibility rules insofar as they prevent college athletes from doing these things.
Is the California Law Likely to Pass?
Yes – It passed unanimously in the California State Assembly, it is expected to pass in the state Senate, and Governor Gavin Newsom is expected to sign it. It is anticipated that it will go into effect in January 2023.
What Has the Reaction to This Law Been So Far? Read More
New York State Senator Kevin Parker has introduced a bill that would not only allow college athletes to earn money from their names, images and likenesses, it would require each college to take 15% of the revenue earned from ticket sales and to pay it to student athletes. I’m sure you’ll be hearing similar things in state legislatures all over the country soon.
LeBron James answered the NCAA very well in his tweet:
Or…….because of this bill, you can work with everyone to create a national policy that is fair to the athletes.
Edward O’Bannon, et al. v. National Collegiate Athletic Ass’n, U.S.D.C. NDCA, 2016 U.S. Dist. LEXIS 44131, Case 09-3329-CW,
 15 USCS § 1 et. seq.
 See, Joseph N. Crowley, In the Arena: The NCAA’s First Century 2 (2006), available at
 The Intercollegiate Athletic Association was formed in 1906 and changed its name to NCAA in 1910.
 O’Bannon v. NCAA, 739 Fed. Appx. 890.
The City of Everett, Washington, got very upset with the so called “Bikini Baristas”, and passed local laws which criminalized the clothing they wear as “lewd conduct”, and enacted a dress code for “Quick-Service Facilities,” which was clearly designed to apply to the drive through coffee-stands. In fairness to the City, the “bikinis’ were really only pasties and g-strings, instances of clearly lewd conduct, as well as customer-barista physical contact, had been documented, and one sheriff’s deputy had even been convicted of helping an owner evade the undercover officers in exchange for sex acts. Although the city police were clearly able to make arrests for the acts that violated the existing public lewdness laws, the city complained that the resources required for undercover investigation of these businesses could be better spent elsewhere and that the new ordinances would make enforcement much easier.
The Ordinances and the Baristas’ Arguments: Baristas working at “Hillbilly Hotties” sued the city, challenging the constitutionality of prohibiting “more than one-half of the part of the female breast located below the top of the areola,” “the genitals, anus, bottom one-half of the anal cleft, or any portion of the areola or nipple of the female breast” as well as the dress code provision requiring the covering of “the upper and lower body (breast/pectorals, stomach, back below the shoulder blades, buttocks, top three inches of the legs below the buttocks, pubic area and genitals).”They claimed portions of these ordinances were unconstitutionally vague. In their complaint, the Baristas pointed out that the length of a common woman’s shirt is often short enough that stretching or bending would reveal part of her back or stomach, violating the dress code, Complaint Doc. 1 ¶4. They also argued that in order to enforce the law, police would have to require suspects to expose their entire beasts in order to measure the top of the areola to determine whether “more than one-half of the part of the female breast located below the top of the areola” is covered. Women with larger areola or breasts are subject to different restrictions than women with smaller areola or breasts and accurate determination would be impossible without such exposure. Id. at ¶¶31-3.
The Baristas Win the First Round:
The District Court judge1 found that the ordinances were probably not valid because they were constitutionally vague, especially because the term “bottom one half of the anal cleft” was not well-defined or reasonably understandable, and that the ordinances failed to provide clear guidance and presented risks of arbitrary enforcement. The District Judge reasoned that their choice of clothing was “communicative”, and conveyed messages of particularized values, beliefs, ideas, and opinions; namely, body confidence and freedom of choice, and that these messages are understood by customers. The City argued that the “message”, if any, was not sufficient to qualify for free speech protection, and was understood only as a sexual image. The District Court ruled that the constitutional challenges to the ordinances should be analyzed according to the “intermediate scrutiny” standard2. Read More
The Baristas Lose on Appeal
The appeals court3 viewed the case much differently, reasoning was as follows. First, since the terms “anal” and “cleft” are easily found in the dictionary, the public would not be left to guess about the meaning of the term, which is reasonably ascertainable to a person of ordinary intelligence. The second part of the vagueness test concerns whether the criminal “lewd conduct” provisions were amenable to unchecked law enforcement discretion. The appellate court recognized that some degree of law enforcement subjectivity might be involved in close cases, but the mere fact that there will be close cases does not make a law unconstitutionally vague. Where it is a criminal law, the defendant charged with committing the crime will always be entitled to proof beyond a reasonable doubt, which is sufficient protection in those close cases. Makes a law vague is not that it might be hard to determine whether the incriminating fact it establishes has been proved, but rather the indeterminacy of precisely what that fact is. A good example of a vague statute is a ban on the assembly of three or more persons on city sidewalks if they conduct themselves in a manner annoying to passers-by. Criminalizing conduct that is annoying is constitutionally vague, because what is annoying to one person may not be to another. Read More
P.S. – Nude and Semi-nude Dancing
It should be noted that nude and semi-nude dancing has been left to be expressive conduct entitled to at least some First Amendment protection, but the Baristas did not claim that they were covered by this. The City of Everett allows nude dancing, but it is subject to the adult entertainment licensing and zoning restrictions, which the owners of the Bikini Barista establishments chose not to comply with.
 U.S. District Court for the Western District of Washington, Edge v. City of Everett, Case No. C17-1361-MJP, District Judge Marsha J. Pechman.
 Depending on the nature of the speech, different standards are used to determine the validity of the government interest in restricting the speech and the extent to which the speech may be prohibited or limited. These analyses can become complex and go beyond the scope of a blog post like this.
 U.S. Court of Appeals for the Ninth Circuit, Edge v. City of Everett, 2019 U.S. App. LEXIS 19930.