Seeking to revive a criminal antitrust conviction, the DOJ last week filed its reply brief in support of a petition for certiorari asking the Supreme Court to hear its appeal of a Fourth Circuit decision overturning a 2022 bid-rigging conviction. In the brief, the DOJ argued that the Fourth Circuit erred when it ruled that only purely horizontal agreements qualify as per se violations of the antitrust laws.
The defendant, Brent Brewbaker, was an executive of an aluminum parts supplier, Contech. The government alleged that Brewbaker submitted losing bids to the North Carolina Department of Transportation in an effort to help a downstream customer of Contech, Pomona Pipe Products, win the bid. Brewbaker was convicted of bid-rigging, in violation of Section 1 of the Sherman Act, and fraud. The Fourth Circuit upheld the fraud conviction but overturned the Sherman Act one, ruling that because it was not purely horizontal, the agreement between Contech and Pomona should have been reviewed under the rule of reason rather than the per se rule.
The DOJ argued that the indictment alleged that Contech and Pomona were direct competitors in that they had submitted competing bids for aluminum structure projects, and the fact that the agreement also had a vertical component did not mean that per se treatment was unavailable. The DOJ argued further that the Fourth Circuit’s decision conflicted with two Supreme Court cases, United States v. Socony-Vacuum Oil Co. and Palmer v. BRG of Georgia, where the Court held that agreements among competitors were per se unlawful even though those competitors also had vertical relationships.