Per Se Rules Notches Another Labor Market Pretrial Win, But…

By: Robert Connolly (Cartel Capers)

The defendants in the aerospace’s labor market allocation case, US v. Patel, No.3-21-cr-220 (D. Conn. Dec. 2, 2022) (VAB), filed a motion to dismiss the indictment on various grounds related to the application of the per se rule in a criminal trial. These grounds include: 1) the conduct charged does not fall within the per se rule; 2) the conduct charged was ancillary to a procompetitive agreement and therefore not subject to per se treatment; 3)  the alleged agreement was vertical in nature; 4) the charge violates the notice provisions of the Due Process Clause; and 5) the prosecution of this conduct as a per se violation would unconstitutionally usurp the jury’s role to determine all of the facts necessary to establish each element in violation of the Fifth and Sixth Amendment.

            The first three arguments are fact specific and the Court in each instance found that he per se rule did apply. [I’ll return to that later]. The Due Process argument raises constitutional questions outside the scope of what I’ve researched/written about. The Court, following controlling precedent in the Second Circuit, held that the per se rule did not unconstitutionally take away from the jury finding an element of the offense

            The Cartel Capers research and cite checking staff has time off for the holidays, so I am simply going to post some “thinking out loud” reactions I had to the opinion. The Court’s well-reasoned opinion (based on controlling precedent) demonstrates why the per se rule will ultimately be found to be unconstitutional in criminal cases—and why– even in this case, the Court will likely not apply the per se rule at trial…

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