ANALYSIS: What’s a Little Bid-Rigging Among Friends?

The incredible shrinking “per se” rule in antitrust—the legal determination that some conduct is always damaging to competition—was dealt another blow at the end of last year in the US Court of Appeals for the Fourth Circuit.

In December 2023, the Court overturned a sales manager/executive’s jury conviction on bid-rigging charges because the two colluding companies were not in a purely horizontal relationship: Though they were bidding against each other for North Carolina’s business, they were also in a supplier-retailer role behind the scenes.

According to the Court, that meant there could be pro-competitive impacts of the arrangement, and any ...