In the U.S., so-called “per se” antitrust crimes require nothing more than proof that the conduct occurred, relieving prosecutors of the difficult job of proving harm to competition. Is the Fourth Circuit’s 2023 opinion in U.S. v. Brewbaker part of a growing judicial trend toward limiting the prosecution of per se cases? Ann O’Brien, the co-leader of Sheppard Mullin’s Antitrust and Competition Practice Group, joins Alicia Downey and Brendan Coffman to talk about Brewbaker and its implications for applying the per se standard in criminal antitrust actions. Listen to this episode to hear about whether the rule of reason might be applied in the criminal context and the U.S. Department of Justice’s possible responses to a changing legal landscape.

Ann M. O’Brien, Partner, Sheppard Mullin Richter & Hampton LLP

Related Links:

Ann O’Brien & Emme Tyler, “Chipping Away at Per Se: Is Brewbaker a Harbinger or Aberration?” ABA Antitrust Law Section Committee Articles (June 6, 2024)
United States v. Brewbaker, 87 F.4th 563 (4th Cir. 2023)
United States v. Brewbaker, Petition for a Writ of Certiorari of the United States, No.23-1365 (S. Ct. June 28, 2024)

Hosted by:

Alicia Downey, Downey Law LLC and Brendan Coffman, Wilson Sonsini Goodrich & Rosati