Attorney Daniel Graulich discusses the Fourth Circuit’s recent reversal of a bid-rigging conviction of a former manager of an aluminum products manufacturer for failure to state a per se antitrust offense. The Court held that the trial court’s application of the per se rule failed to adequately consider the alleged scheme took place within the context of a “dual distribution” relationship among competing bidders, who also maintained an exclusive supplier relationship. As a result, the court held that the academic analysis on the competitive effects of the restraint should have been considered, and the economic evidence presented demonstrated the scheme would not invariably lead to anticompetitive effects (like higher prices). While DOJ is likely to pursue en banc review, the decision could have implications for how the DOJ proceeds with indictments involving parties that engage in dual distribution.
