Supreme Court's Rejection Of DOJ Appeal Could Shift The Landscape For Bid-Rigging Prosecutions

• Published date: 26 November 2024
• Subject Matter: Antitrust/Competition Law, Criminal Law, Antitrust, EU Competition , White Collar Crime, Anti-Corruption & Fraud
• Law Firm: Winston & Strawn LLP
• Author: Jeffrey J. Amato and Julia Lagnese

The U.S. Supreme Court has denied the request from the Department of Justice (DOJ) to review a ruling from the U.S. Court of Appeals for the Fourth Circuit that overturned the bid-rigging conviction of a former engineering firm executive because the indictment did not allege a per se antitrust violation.

In 2022, Brent Brewbaker was convicted on five counts of mail and wire fraud and one count of a per se antitrust violation under Section 1 of the Sherman Act for rigging hundreds of bids on projects for the North Carolina Department of Transportation. Brewbaker and his engineering firm were coordinating bids with the firm's distributor to intentionally submit higher, losing bids. Before trial, Brewbaker asked the district court to dismiss the count for failure to state an offense. The district court refused, and Brewbaker's conviction followed.¹

Fourth Circuit's Application of the Rule of Reason to Hybrid Relationships

The key issue on appeal was the proper standard for bid-rigging antitrust violations when conspirators are both competitors and partners.

The Sherman Antitrust Act prohibits unreasonable restraints of trade, which are determined by either the rule of reason or the per se rule. The rule of reason involves a fact-specific inquiry into the particular restraint's impact, balancing anticompetitive and procompetitive impacts. The per se rule involves certain restraints that are categorically unreasonable, without consideration of any procompetitive impacts. Vertical price restraints, which are between firms at different distribution...