II 109th CONGRESS 1st Session S. 1854 IN THE SENATE OF THE UNITED STATES October 6, 2005 Mr. Salazar introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To prohibit price gouging for commodities and services sold during national emergency situations.

1.

Short title

This Act may be cited as the Treat Emergency Victims Fairly Act of 2005.

2.

Findings

Congress finds the following: (1)Price gouging in emergencies, including natural disasters and other emergencies, is reprehensible commercial activity. (2)Emergencies place great strains on commercial and consumer relationships in the areas affected. (3)Emergencies can strain commercial and consumer relationships in areas beyond those directly damaged or affected by the emergency. (4)It is an unfortunate truth that some will try to take advantage of others in emergency situations by price gouging for consumer and other commercial goods or services. (5)Price gouging can take place prior to, during, and following natural disasters and other emergencies. (6)Price gouging in commercial and consumer settings affects interstate commerce. (7)Price gouging— (A)distorts markets without regard to State lines; (B)disturbs and interferes with the flow of commodities and services across State lines; and (C)creates or exacerbates shortages and interruptions of supplies of materials across State lines. (8)It is in the interest of the United States to prohibit and deter price gouging.

3.

Definitions

In this Act: (1)

Emergency

The term emergency means a natural disaster or other circumstance or event that is formally declared to be an emergency by Federal or State authorities. An emergency may be associated with a designated area. (2)

Goods or services

The term goods or services means goods or services of any type, including food, transportation, housing, and energy supplies. (3)

Person

The term person means a natural person, corporation, governmental body, or other entity. (4)

Price gouging

(A)

In general

The term price gouging means charging an unreasonable and unconscionable price for a good or service immediately prior to, during, or following an emergency. (B)

Presumption

(i)

Affirmative

A price for a good or service is presumed to be unreasonable and unconscionable— (I)in the designated area of an emergency if it reflects a price increase at least 10 percent greater than the average price for the good or service charged by the seller in the designated area during the 30 days prior to the formal declaration of the emergency; and (II)outside the designated area of an emergency if the price is affected by the emergency and if the price reflects a price increase at least 10 percent greater than the average price for the good or service charged by the seller in the area of the sale during the 30 days prior to the formal declaration of an emergency. For purposes of subclause (II), a price is presumed to be affected by the emergency if, within 30 days following the declaration of the emergency, the price is at least 25 percent greater than the average price for the good or service charged by the seller in the area of the sale during the 30 days prior to the formal declaration of the emergency.(ii)

Negative

A price for a good or service is not unreasonable and unconscionable if it reflects only the cost of the good or service to the seller prior to the emergency, the average profit margin of the seller during the 30 days prior to the formal declaration of an emergency, and the increased costs actually incurred by the seller to sell the good or service during or following the emergency.

4.

Cause of action

(a)

In general

It shall be unlawful for any seller of goods or services to engage in price gouging. (b)

Litigation

A cause of action under this section may be brought— (1)in Federal or State court; and (2)by the Federal Government, through the Attorney General, or a State Government acting through its attorney general. (c)

Venue and procedure

(1)

Federal court

An action in Federal court under this section may be brought in any court whose jurisdiction includes— (A)the geographic area in which price gouging is alleged to have occurred; or (B)the State which is a plaintiff in the action. (2)

State court

An action in State court under this section shall conform to State rules of procedure. (d)

Expedited federal consideration

An action under this section in Federal court shall receive expedited review. (e)

Investigations

(1)

In general

During the course of an investigation under this section by the Attorney General of the United States or a State attorney general, whether prior to filing an action or during such an action, the investigating attorney general may— (A)order any person to file a statement, report in writing, or answer questions in writing, under oath or otherwise, concerning facts or circumstances reasonably related to alleged price gouging; (B)order any person to provide data or information the attorney general reasonably deems to be necessary to an investigation; and (C)issue subpoenas to require the attendance of witnesses or the production of relevant documents, administer oaths, and conduct hearings in aid of the investigation. (2)

Enforcement

A subpoena issued under this subsection may be enforced in Federal or State court. (3)

Penalty

Failure to comply with an order or subpoena under this subsection is subject to a civil penalty of up to $10,000. (f)

Limitation

An action under this section shall be brought not later than 3 years of the date of the sale of the goods or services at issue.

5.

Damages and penalties

(a)

In general

A prevailing plaintiff shall be entitled to— (1)plaintiff's damages incurred as a result of the price gouging, including without limitation a refund of all prices paid by the plaintiff in excess of conscionable and reasonable prices; (2)injunctive relief prohibiting the defendant from price gouging or mandating action; and (3)attorneys fees and costs incurred by the plaintiff. (b)

Restitution

The Attorney General of the United States and a State attorney general, in an action brought on behalf of the citizens of the United States or a State, respectively, may recover restitution or disgorgement of excess profits on behalf of those citizens. (c)

Civil penalties

(1)

In general

A person who violates section 4(a) shall be subject to civil penalties of up to $10,000 per incident. (2)

Disposition of penalties

Civil penalties collected through an action by the United States Attorney General shall be deposited in the United States Treasury. Civil penalties collected through an action by an attorney general of a State shall be deposited in the State’s treasury. The court may apportion the deposit of civil penalties as appropriate in the circumstances.

6.

Attorney General authorities

The Attorney General of the United States shall— (1)provide assistance to and cooperate with the States in State investigations of price gouging and in State litigation brought under this Act; (2)create and disseminate guidelines designed to assist the public to recognize and report price gouging and establish a system to gather and disseminate information about instances of reported price gouging; and (3)provide grants to offices of the State attorneys general of not greater than $50,000 in order to support the pursuit of price gouging investigations and other activities.

7.

Savings provision

This Act shall not preempt or otherwise affect any State or local law.