United States v. Kemp & Assocs.

United States v. Kemp & Assocs.

Opinion

MEMORANDUM DECISION AND ORDER

In this motion to reconsider, the United States of America asks the court to readdress whether the Rule of Reason or the Per Se approach should apply in the present case. In light of guidance given by the Tenth Circuit, and with the benefit of full briefing, the court grants this motion and finds that the Per Se approach should apply in this case.

I. BACKGROUND

This case began on August 17, 2016 when the United States of America indicted Kemp & Associates, a Utah Corporation, and Daniel J. Mannix, Chief Operating Officer of Kemp (Collectively "Defendants") on one count of violating § 1 of the Sherman Act. Indictment, 3. The indictment accused Defendants of seeking to suppress and eliminate competition by agreeing to allocate customers of Heir Location Services sold in the United States. Id. On June 21, 2017, the parties appeared before Judge Sam to argue several motions, including a motion to order that the case be subject to the Rule of Reason, and a motion Dismiss the Indictment. Upon completion [*3]  of oral testimony on the matter, Judge Sam ruled from the bench that the case should be subject to the Rule of Reason and not the Per Se approach, while the Motion to Dismiss was taken under advisement. On August 28, 2017, Judge Sam issued a written order that the Indictment be dismissed as barred by the statute of limitations. Memorandum Decision and Order, 2:16CR403 DS (Utah, 2017). Following Judge Sam's decision, the United States appealed to the Tenth Circuit Court of Appeals on September 26, 2017. On October 31, 2018, the Tenth Circuit issued a decision reversing the district court regarding the statute of limitations issue, and ruling that while it did not have statutory authority to overturn the district court's decision regarding application of the Rule of Reason, it would encourage the court to reconsider its decision with the advantage of more complete briefing on the matter. United States v. Kemp & Assocs., Inc., 907 F.3d 1264, 1278 (10th Cir. 2018). On December 14, 2018, the United States filed a Motion to Reconsider whether the Rule of Reason or the Per Se approach should apply in the case.

II. ANALYSIS

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