United States v. Kemp & Assocs., Inc.

907 F.3d 1264 (2018) United States Court of Appeals for the Tenth Circuit 2018-10-31

criminal; single-count § 1 indictment (customer allocation); district court ordered the case tried under the rule of reason and dismissed the indictment as time-barred; on the government's appeal CA10 reversed the limitations dismissal on the face of the indictment, dismissed the appeal of the rule-of-reason order for want of jurisdiction under 18 U.S.C. § 3731, denied mandamus, and remanded (result: remanded)

Facts

  1. 10 Statute of limitations (4-year civil under 15 U.S.C. § 15b; 5-year criminal under 18 U.S.C. § 3282) not pleaded
    Based on an email from Mannix to other Kemp employees, Defendants claim that any "formal" agreement between the alleged co-conspirators ended sometime before July 30, 2008.
  2. 10 Statute of limitations (4-year civil under 15 U.S.C. § 15b; 5-year criminal under 18 U.S.C. § 3282) not pleaded
    Defendants did acknowledge, however, that "for some of the estates subject to the [agreement], certain administration work continued into the five-year period prior to the Indictment, including the recovery of money for heirs, and the payment of the firms themselves."
  3. 10 Statute of limitations (4-year civil under 15 U.S.C. § 15b; 5-year criminal under 18 U.S.C. § 3282) not pleaded
    A Sherman Act conspiracy, such as the one alleged here, remains actionable "until its purpose has been achieved or abandoned, and the statute of limitations does not run so long as the co-conspirators engage in overt acts designed to accomplish its objectives."
  4. 10 Statute of limitations (4-year civil under 15 U.S.C. § 15b; 5-year criminal under 18 U.S.C. § 3282) not pleaded
    Furthermore, the Indictment alleges on its face that as part of the unlawful agreement the companies agreed "that the co-conspirator company to which heirs were allocated would pay to the other co-conspirator company a portion of the contingency fees ultimately collected from those allocated heirs."
  5. 10 Statute of limitations (4-year civil under 15 U.S.C. § 15b; 5-year criminal under 18 U.S.C. § 3282) not pleaded
    Accordingly, the August 17, 2016, indictment was not barred by the statute of limitations.