United States Court of Appeals for the Tenth Circuit · 2018-10-31
15usc1: author: Flash1 · QA: FIX (Fable, neov2/cases/TRIAGE-Flash.md)
Case and law context
Role: applied; posture: 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; claim:
Uncertainty
opinion: unanimous panel opinion; body @0..37952, its appended footnotes @37952..40318 (same opinion, one span). No separate opinion in the text.
other: result was `claimant-won`. The government won the only statutory question decided (limitations) but no element of the offence is adjudicated and its challenge to the rule-of-reason order was dismissed; `remanded` (indictment reinstated for further proceedings) describes the outcome more truthfully. `mixed` would also be defensible.
Element statute-of-limitations: basis: decided de novo on the face of the indictment (allegations taken as true) plus the defendants' acknowledgment of in-period payments, hence [pleaded]; Flash had [law]. The defense remains open on the evidence at trial.
Misfit
None recorded
B · Case × element grid
Top-level elements follow claim order in panels of up to six elements. Case rows repeat across panels. Every recorded block retains its holding and basis; multiple blocks are not merged into a case-level verdict. ✓ satisfied · ✗ not satisfied · ○ not reached · · not addressed. Muted blocks are not counted. Sub-element evidence remains on case and element pages.
Elements 1–6 of 11
| Case | Concerted action ("contract, combination ... or conspiracy") between separate economic decisionmakers | Unreasonable restraint of trade (Standard Oil Co. v. United States) | Restraint of trade or commerce among the several States or with foreign nations | Private antitrust injury and fact of damage (Clayton Act §§ 4, 16; Brunswick Corp. v. Pueblo Bowl-O-Mat) | Antitrust standing / efficient enforcer test (Associated General Contractors; Illinois Brick) | Parker v. Brown state-action immunity (Midcal two-prong test: clearly articulated state policy + active state supervision) |
|---|---|---|---|---|---|---|
| United States v. Kemp & Assocs., Inc. — 907 F.3d 1264 (2018) · United States Court of Appeals for the Tenth Circuit · 2018 (15usc1: author: Flash1 · QA: FIX (Fable, neov2/cases/TRIAGE-Flash.md)) | · not addressed | · not addressed | · not addressed | · not addressed | · not addressed | · not addressed |
Elements 7–11 of 11
| Case | Statute of limitations (4-year civil under 15 U.S.C. § 15b; 5-year criminal under 18 U.S.C. § 3282) | Law-of-the-case doctrine in consolidated/MDL antitrust proceedings | Criminal mens rea: knowing participation in the conspiracy or intent to restrain trade | Ancillary restraints doctrine (restraint subordinate and collateral to a legitimate productive integration) | Horizontal cartel / hub-and-spoke conspiracy operating through vertical or dual-distribution arrangements |
|---|---|---|---|---|---|
| United States v. Kemp & Assocs., Inc. — 907 F.3d 1264 (2018) · United States Court of Appeals for the Tenth Circuit · 2018 (15usc1: author: Flash1 · QA: FIX (Fable, neov2/cases/TRIAGE-Flash.md)) | · not addressed | · not addressed | · not addressed | · not addressed |
Instances and excluded annotation blocks
| Case | Element | Holding and scope | Pattern | Exact source quotations |
|---|---|---|---|---|
| United States v. Kemp & Assocs., Inc. — 907 F.3d 1264 (2018) · United States Court of Appeals for the Tenth Circuit · 2018 — not reached (15usc1: author: Flash1 · QA: FIX (Fable, neov2/cases/TRIAGE-Flash.md)) | Per se illegality for naked restraints manifestly anticompetitive and lacking redeeming virtue | not_reached Excluded from merits counts applied / procedural party: United States (prosecution; the claimant); Kemp & Associates, Inc. (heir location service) and its Vice President/COO Daniel Mannix (indicted defendants, appellees); theory: single-count indictment: agreement with a competing heir location service to allocate heirs (customers) and share the contingency fees collected from allocated heirs; subject: party=United States (prosecution; the claimant); Kemp & Associates, Inc. (heir location service) and its Vice President/COO Daniel Mannix (indicted defendants, appellees); theory=single-count indictment: agreement with a competing heir location service to allocate heirs (customers) and share the contingency fees collected from allocated heirs The district court held the per se rule inapplicable (unusual structure, few estates, obscure industry). This court does not review that ruling; in dicta, while denying mandamus, it calls the defendants' distinctions "mostly unpersuasive" and lists authorities for the district court to consider on remand (@30529..36689). Nothing here is a merits ruling on the mode of analysis. | government appeal of a pretrial order selecting the rule of reason for a charged customer allocation: no jurisdiction under 18 U.S.C. § 3731, mandamus denied | It is undisputed that "an agreement to allocate or divide customers between competitors within the same horizontal market, constitutes a per se violation of § 1 of the Sherman Act."Source: docroot/ir/caselaw/f3d_907.jsonl#/f3d/907/1264-01; Unicode character offsets [18596:18777] (end exclusive); SHA-256 90b1eba2924d8097713c34ef541c9dd5a86baf811954761d9ca9f6e93944276e.Under this agreement, when the two companies both contacted a potential heir, "the co-conspirator company that first contacted that heir would be allocated certain remaining heirs to that estate who had yet to sign a contract with an Heir Location Services provider."Source: docroot/ir/caselaw/f3d_907.jsonl#/f3d/907/1264-01; Unicode character offsets [3801:4068] (end exclusive); SHA-256 90b1eba2924d8097713c34ef541c9dd5a86baf811954761d9ca9f6e93944276e.Accordingly, we hold that the district court's rule of reason order does not fall within our interlocutory appellate jurisdiction to review.Source: docroot/ir/caselaw/f3d_907.jsonl#/f3d/907/1264-01; Unicode character offsets [27388:27528] (end exclusive); SHA-256 90b1eba2924d8097713c34ef541c9dd5a86baf811954761d9ca9f6e93944276e. |
| United States v. Kemp & Assocs., Inc. — 907 F.3d 1264 (2018) · United States Court of Appeals for the Tenth Circuit · 2018 — not · pleaded (15usc1: author: Flash1 · QA: FIX (Fable, neov2/cases/TRIAGE-Flash.md)) | Statute of limitations (4-year civil under 15 U.S.C. § 15b; 5-year criminal under 18 U.S.C. § 3282) | not Counted merits instance applied / merits basis: pleaded; party: Kemp & Associates, Inc. (heir location service) and its Vice President/COO Daniel Mannix (indicted defendants, appellees); United States (prosecution; the claimant); theory: single-count indictment: agreement with a competing heir location service to allocate heirs (customers) and share the contingency fees collected from allocated heirs; subject: party=Kemp & Associates, Inc. (heir location service) and its Vice President/COO Daniel Mannix (indicted defendants, appellees); United States (prosecution; the claimant); theory=single-count indictment: agreement with a competing heir location service to allocate heirs (customers) and share the contingency fees collected from allocated heirs Polarity is relative to the DEFENSE: the 2008 end of the "formal" agreement supports the time bar; fee-sharing payments inside the window cut against it. Following Evans (bid rigging: conspiracy continues while payments on the rigged contract are received), distributing fees on allocated estates after August 17, 2011 is an overt act in furtherance. | allocation agreement said to have ended years earlier; fee-sharing payments on allocated estates continued into the five-year window | 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."Source: docroot/ir/caselaw/f3d_907.jsonl#/f3d/907/1264-01; Unicode character offsets [7770:8031] (end exclusive); SHA-256 90b1eba2924d8097713c34ef541c9dd5a86baf811954761d9ca9f6e93944276e.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.Source: docroot/ir/caselaw/f3d_907.jsonl#/f3d/907/1264-01; Unicode character offsets [4504:4676] (end exclusive); SHA-256 90b1eba2924d8097713c34ef541c9dd5a86baf811954761d9ca9f6e93944276e.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."Source: docroot/ir/caselaw/f3d_907.jsonl#/f3d/907/1264-01; Unicode character offsets [13603:13903] (end exclusive); SHA-256 90b1eba2924d8097713c34ef541c9dd5a86baf811954761d9ca9f6e93944276e.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."Source: docroot/ir/caselaw/f3d_907.jsonl#/f3d/907/1264-01; Unicode character offsets [5684:5952] (end exclusive); SHA-256 90b1eba2924d8097713c34ef541c9dd5a86baf811954761d9ca9f6e93944276e.Accordingly, the August 17, 2016, indictment was not barred by the statute of limitations.Source: docroot/ir/caselaw/f3d_907.jsonl#/f3d/907/1264-01; Unicode character offsets [14544:14634] (end exclusive); SHA-256 90b1eba2924d8097713c34ef541c9dd5a86baf811954761d9ca9f6e93944276e. |
Court interpretations recorded from this case
interpretation
As to the former, the Defendants acknowledged that customer allocation agreements are generally analyzed under the per se rule, but nonetheless they argued that "in the atypical context of the heir location business the [agreement] is far from an ordinary customer allocation, and instead bears more in common with joint ventures analyzed under the rule of reason[.
United States v. Kemp & Assocs., Inc. — 907 F.3d 1264 (2018) · United States Court of Appeals for the Tenth Circuit · 2018 (15usc1: author: Flash1 · QA: FIX (Fable, neov2/cases/TRIAGE-Flash.md))
As to the former, the Defendants acknowledged that customer allocation agreements are generally analyzed under the per se rule, but nonetheless they argued that "in the atypical context of the heir location business the [agreement] is far from an ordinary customer allocation, and instead bears more in common with joint ventures analyzed under the rule of reason[.Source:
docroot/ir/caselaw/f3d_907.jsonl#/f3d/907/1264-01; Unicode character offsets [4890:5255] (end exclusive); SHA-256 90b1eba2924d8097713c34ef541c9dd5a86baf811954761d9ca9f6e93944276e.Reserved for horizontal price fixing (Socony-Vacuum), bid rigging, horizontal market/customer allocation (Palmer v. BRG; Cooperative Theatres), certain horizontal group boycotts denying access to an essential facility/market (Northwest Wholesale Stationers; Tunica Web), and tying where the seller has appreciable economic power in the tying product market (Jefferson Parish). Vertical minimum and maximum resale price maintenance are no longer per se unlawful (Leegin, 551 U.S. 877 (2007); State Oil v. Khan, 522 U.S. 3 (1997)).