On December 3, 2019, after a four-week trial, Christopher Lischewski was found guilty by a jury of conspiring to fix prices in the canned tuna market in violation of 15 U.S.C. Section 1.  Throughout the trial proceedings below, Lischewski preserved his challenge to the constitutionality of the per se rule in his criminal Sherman Act prosecution. On appeal, Lischewski argued to the Ninth Circuit that his conviction should be overturned on several grounds, including his objection to the per se rule jury instruction. The Ninth Circuit noted that “Lischewski acknowledges that we are bound by precedent upholding the per se rule and raises this issue only to preserve it for further review.”  In a July 7, 2021 NOT FOR PUBLICATION opinion, US v. Lischewski, No. 20-10211 (9th Cir. July 7, 2021) the Ninth Circuit held that “the [per se] instruction and the government’s statements correctly reflected the substantive law, and Lischewski has not explained why reversal would be warranted.”

On January 13, 2020 the Supreme Court denied cert on earlier appeal from the Ninth Circuit in a bid rigging Sherman Act case where defendants had challenged the per se rule. Sanchez et al. v. United States, No. 19-288, ___ U.S. ___ , 2020 WL 129558 (Jan. 13, 2020) (denying cert. petition).  Will the Supreme Court will accept cert in this case if, as expected, it is sought?  Weighing against cert: there is no split in the circuits; Lischewski was convicted of horizontal price fixing–the quintessential per se violation; and the Ninth Circuit characterized the evidence of guilt as overwhelming.  On the other hand, Lischewski raises a constitutional argument–and he is not alone.  Many defendants in ongoing Sherman Act criminal price fixing cases have attacked the constitutionality of the per se rule.  Lower courts, bound by precedent, are not addressing these new constitutional attacks.  It would be very helpful and interesting if the Supreme Court did.

Thanks for reading

Bob Connolly     bob@reconnollylaw.com