33 F.4th 97
2d Cir.2022Background
- Defendant Akshay Aiyer, an FX trader, was indicted for a conspiracy to fix prices and rig bids in CEEMEA currency trading (Oct. 2010–July 2013); prosecutors proceeded solely under a per se theory under Section 1 of the Sherman Act.
- The indictment relied on chat logs and cooperating witnesses showing coordinated pricing, bid withdrawals, and efforts to move market prices (e.g., coordinated stop‑loss manipulation episodes).
- Pretrial, the district court denied Aiyer’s motion to dismiss and excluded most evidence of competitive effects/procompetitive benefits as irrelevant to a per se charge, while permitting limited effects evidence on intent.
- Jury trial (Oct–Nov 2019) produced a guilty verdict; jury instructions explained that price fixing and bid rigging are per se unlawful and economic justification is irrelevant to that element.
- Post‑verdict, allegations of juror misconduct prompted targeted inquiry (interview of the accused juror and review of a juror’s podcast); the district court found no prejudicial outside influence and denied new‑trial motions.
- On appeal, Aiyer argued the court should have (1) determined pretrial whether per se or rule‑of‑reason applied by assessing competitive‑effects evidence, (2) admitted his effects evidence (including expert testimony) for intent and reasonableness, and (3) conducted a more extensive post‑verdict juror inquiry. The Second Circuit affirmed.
Issues
| Issue | Plaintiff's Argument (United States) | Defendant's Argument (Aiyer) | Held |
|---|---|---|---|
| Whether district court was required pretrial to assess which Sherman Act framework (per se vs rule of reason) applied | Indictment properly alleged a per se conspiracy; government may try per se theory without pretrial merits adjudication | District court should have evaluated Aiyer’s economic evidence and made a threshold determination whether per se or rule of reason governs | No error: in criminal per se prosecution court need not conduct pretrial economic inquiry; jury decides guilt on the charged per se theory |
| Admissibility of competitive‑effects / procompetitive evidence at trial | Effects evidence irrelevant to per se offense; government entitled to exclusion except limited use on intent | Effects and expert evidence relevant to intent and to whether per se rule should apply; exclusion prejudiced defense | No abuse of discretion: district court permissibly limited effects evidence to avoid confusing jury; allowed targeted cross‑examination on intent |
| Required mens rea for per se criminal antitrust offense | Government need only prove intentional participation in the per se conspiracy (no need to prove defendant expected anticompetitive market effects) | Defendant argued government must prove defendant knew anticompetitive effects would likely follow | Held that existing precedent (Koppers) requires only intent to join per se conspiracy; no requirement to prove foreseeability of market harm |
| Adequacy of post‑verdict juror‑misconduct inquiry | Court conducted appropriate, focused investigation (interviewed accused juror, reviewed podcast) and credited juror’s denials; no reasonable grounds for broader inquiry | Court abused discretion by accepting juror’s self‑serving denials and not interviewing the accusing juror or conducting broader inquiry | No abuse of discretion: inquiry ended after credible denial and review showed no strong, substantial, incontrovertible evidence of prejudicial misconduct |
Key Cases Cited
- Socony‑Vacuum Oil Co., 310 U.S. 150 (per se rule: horizontal price‑fixing is illegal per se)
- Catalano, Inc. v. Target Sales, Inc., 446 U.S. 643 (horizontal price fixing archetype)
- Maricopa County Medical Soc’y v. Maricopa County, 457 U.S. 332 (per se invalidation of price‑fixing agreements regardless of procompetitive justifications)
- Leegin Creative Leather Prods. v. PSKS, Inc., 551 U.S. 877 (explaining when per se treatment may be reexamined for certain categories)
- United States v. Koppers Co., 652 F.2d 290 (2d Cir.) (criminal bid‑rigging/price‑fixing: intent to join conspiracy suffices; no need to prove anticompetitive effects)
- United States v. U.S. Gypsum Co., 438 U.S. 422 (mens rea discussion in rule‑of‑reason contexts)
- Apple, Inc. v. United States, 791 F.3d 290 (2d Cir. 2015) (civil antitrust framework; limited exceptions to per se where joint‑venture‑type efficiencies are essential)
- Am. Needle, Inc. v. Nat’l Football League, 560 U.S. 183 (when collaborative ventures may require rule‑of‑reason analysis)
- Costello v. United States, 350 U.S. 359 (grand‑jury indictment sufficient on its face to require trial)
- Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (failure to affect prices can be evidence against existence of conspiracy in civil context)