Supreme Court Denial Has Implications For Criminal Antitrust Enforcement

On Nov. 12, 2024, the U.S. Supreme Court declined to review a court of appeals decision that has important implications for the Department of Justice's criminal antitrust enforcement program. In United States v. Brewbaker, the U.S. Court of Appeals for the Fourth Circuit held that a manufacturer and distributer who allegedly coordinated their bidding strategy did not engage in a per se illegal price-fixing conspiracy. The Court of Appeals held that the "hybrid" nature of the alleged conspirators' relationship — in which they contracted with each other for the supplies and services that were used to fulfill the bids at issue — required a more involved economic analysis.

As the federal government acknowledged, this case "makes it substantially more difficult" for the government to prosecute criminal cases when the alleged conspirators have vertical aspects to their relationships with each other. In light of the Supreme Court's denial, Brewbaker remains the law in