What If There Was No Per Se Rule in Criminal Cases?

In this blog post, author Robert Connolly (Cartel Capers) examines the Supreme Court’s continued rejection of challenges to the per se rule in criminal antitrust cases, with the latest denial involving Brent Brewbaker’s cross-cert petition. To date, the Court has declined three separate challenges to the per se rule, making it unlikely that a Court of Appeals will overturn it given the long-standing precedent—though not impossible. Instead, courts that take issue with the per se rule may seek alternative approaches, as seen in certain labor collusion cases. For instance, in United States v. DaVita Inc., 2022 WL 833368, at *2, *5 (D. Colo. 2022), the court required the DOJ to prove beyond a reasonable doubt not just the existence of a non-solicitation agreement but also that the defendants intended to allocate the market as charged. Similarly, in United States v. Brewbaker, 87 F.4th 563, 583 (4th Cir. 2023), the Fourth Circuit limited the per se rule’s reach, finding that a vertical component in a relationship between two horizontal competitors involved in bid rigging moved the case into rule of reason analysis instead.

Would Criminal Antitrust Enforcement Suffer Without the Per Se Rule?

Connolly argues that criminal enforcement would not be materially weakened without the per se rule. He points to the Brewbaker case, which most antitrust experts viewed as a clear-cut bid-rigging scheme. In that case, one bidder (Pomona) provided its final bid price to another (Contech/Brent Brewbaker), with the understanding that the second bidder would submit a higher price intentionally.

Beyond the bid-rigging charge, Brewbaker was also convicted of fraud, specifically for falsely certifying that his company’s bids were competitive and not collusive. Given this fraudulent conduct, Connolly suggests that a jury—if tasked with determining whether the agreement unreasonably restrained trade—would likely still have found Brewbaker guilty under the Sherman Act.

While an acquittal on bid rigging is always a possibility, particularly given the creativity of defense attorneys, Connolly notes that juries are capable of making rational decisions even without the per se rule…

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