Our Curious Amalgam #304 Is Per Se Here to Stay? Criminal Antitrust Cases Beyond United States v. Brewbaker
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Dec 16, 2024 Ann O'Brien, a partner at Sheppard Mullin and former federal prosecutor, dives into the complexities of criminal antitrust law, focusing on the implications of the Brewbaker case. She explores how recent judicial trends could affect per se prosecutions and discusses the evolving dynamics of the Department of Justice. O'Brien shares her personal journey through cancer advocacy and engages in a light-hearted conversation about space travel preferences. Tune in for insights blending legal intricacies with personal triumphs!
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DOJ's Concerns
- The DOJ sought certiorari in the Brubaker case due to concerns about the Fourth Circuit's decision.
- The decision reversed a bid-rigging conviction, potentially impacting the per se rule's application in criminal antitrust cases.
Trend Towards Context
- Brubaker and DeVita cases, despite differing facts, reflect a trend of courts seeking more context in antitrust cases.
- The per se rule's shortcut, which avoids proving antitrust harm, bothers some courts.
Brubaker's Impact
- The Brubaker case may significantly impact other per se violations, including price-fixing and no-poaching agreements.
- Courts may push for pretrial determinations of per se or rule of reason application due to Brubaker.