As I posted last week, I had written an article, with the help of Erin Lyman, a third year student at the University of Wisconsin Law School, discussing the per se rule and the various ways the defense may attack it in pretrial motions, and throughout the proceeding, including appeal should the defendant be convicted. The article was about to be published when the defendant received a full Presidential pardon. The issues raised concerning the use of the per se rule in criminal antitrust trials are likely to come up again so I have retooled the article a bit and posted it on SSRN: Per Se Rule Related Defenses In Criminal Antitrust Prosecutions, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5895764, posted December 10, 2025.
The article uses as a lens, an indictment the Antitrust Division returned alleging a per se Section One violation for this agreement:
- The charge in this Indictment arises from a scheme in which Defendant conspired with a competitor to rig the bidding to develop, manage, and operate an arena at a public university in Austin, Texas (the “Arena Project”). Specifically, the Defendant and a competitor agreed that the competitor would stand down and neither submit nor join an independent competing bid so that Defendant’s company would win the Arena Project and derive its economic benefits. In exchange for the competitor’s standing down, Defendant represented that the competitor would receive certain subcontracts for the Arena Project and other consideration.
The Defendant indicated that he would not deny an understanding with the alleged competitor but claimed it was procompetitive consortium building on the large project.
My SSRN paper covers three possible scenarios that might have come up had the defendant been brought to trial. First, citing the Fourth Circuit’s decision in Unted States v. Brewbaker, 87 F. 4th 563 (4th Cir. 2023), the defendant could have argued that the indictment did not allege a per se violation. The defense would have argued the defendant the indictment merely sets forth lawful, ethical and procompetitive efforts of complementary businesses joining forces to deliver a compelling proposal to the customer. The legal argument would be an agreement to form a consortium/joint venture is well-recognized as having a potential precompetitive impact and is outside the kind of agreement the Supreme Court has included in the per se category. Secondly, should the case have advanced to trial and jury, the defendant could argue, based on United States v. DaVita, that the court should reject the government’s standard per se jury instruction and instead, require the jury to find “beyond a reasonable doubt that defendant entered into an agreement with the purpose of …[rigging the bid]. See United States v Davita Inc., No. 1:21-CR-00229-RBJ, 2022 WL 1288585, at *1 (D. Colo. Mar. 25, 2022). Finally, if convicted, the defendant could appeal and argue that the per se rule is unconstitutional when applied in a criminal trial.
I’ve been writing about the per se rule for many years so some of the ideas/material in the article are “reprints.” I have, however, added new material. I am going to post some of the writing I think is perhaps more interesting on the blog over the next several days.
Thanks for reading.
Bob Connolly bob@reconnollylaw.com