Antitrust: Appellants failed to preserve challenges to Sherman Act verdict

Where appellants argued the evidence was insufficient to support the jury’s finding that they violated the Sherman Act, but their post-verdict oral motion and written submissions did not comply with Rule 50(b), they failed to preserve these arguments for appellate review.

Background

Craig Orson Brooksby, Tonya Newell and Lynn Pinder appeal from the district court’s jury verdict and order entering a permanent injunction following trial in their civil action under § 1 of the Sherman Act, North Carolina’s state antitrust law analogue prohibiting unfair and deceptive trade practices and North Carolina state law prohibiting unjust enrichment.

Sherman Act

Appellants argue that the evidence is insufficient to support the jury’s finding that they violated the Sherman Act because no evidence was introduced at trial of a knowing agreement to restrict competition through bid rigging. They also argue that there was insufficient evidence adduced of interstate commerce; that appellees failed to meet their burdens to define the market and show appellants’ impact on the market and that the evidence adduced was insufficient to show appellees suffered an antitrust injury.

Appellants moved under Rule 50(a) for judgment as a matter of law in their favor before the case was submitted to the jury on the basis that the evidence was insufficient to show a conspiracy agreement or mutual understanding and antitrust damages and thus did not establish a violation of the Sherman Act or North Carolina state law. When they moved, however, during the post-verdict oral colloquy for “judgment NOV,” they did so based only on the conclusory assertion that “the evidence” was insufficient to support the verdict.

Appellants’ post-verdict oral motion did not comply with the demands of Rule 50(b). Appellants only summarily asserted post-verdict that the evidence was insufficient to support the jury’s verdict without pointing to the law and facts entitling them to judgment as a matter of law, and they “failed to even summarily state [in their post- verdict argument] that [they] w[ere] renewing the[ir] pre[-]verdict motion for judgment as a matter of law, as [they] did when [they] moved [for judgment] at the close of all the evidence.”

Further, appellants’ post-verdict written filings challenging the sufficiency of the evidence did not comply with Rule 50(b). In a post-verdict written objection to appellees’ proposed judgment, appellants summarily asserted that there was no evidence of “consent to a conspiracy” or damages. But this objection did not specify that appellants were seeking judgment as a matter of law in their favor based on these claimed evidentiary insufficiencies; the objection thus did not comply with Rule 50(b).

Further, although appellants moved under Rule 59(e) to alter or amend the judgment to remove some of its findings and awards on the basis that three of the other defendants did not participate in a bid rigging scheme and could not be held liable for actions of certain others, these three other defendants are no longer a part of this appeal, having been dismissed from it through this court’s November 17 partial dismissal order. The Rule 59(e) motion thus does not preserve for review appellants’ challenges to the sufficiency of the evidence.

Summary judgment

Appellants also assert that, because appellees did not meet their burden relative to market evidence, this court should grant “summary judgment” in their favor. The claimed failure of appellees to provide market evidence was a basis on which appellants sought partial summary judgment before the district court. Insofar as appellants are challenging the district court’s denial of their motion for partial summary judgment, they do not present this challenge in accordance with Fed. R. App. P. 28(a)(8)(A). The court thus deems this challenge waived.

Jury instructions

Appellants argue that the instructions concerning antitrust damages were erroneous. Appellants, however, do not identify the instruction, instructions or any portions thereof given on this topic to which they object. Because appellants have failed to include in their opening brief any record citations supporting this instructions challenge, this argument is waived as well.

Appellants also argue that the district court erred when it instructed the jury regarding Williams’ burden to establish the existence of a bid rigging conspiracy, the definition of extortion under North Carolina state law and Williams’ burdens to prove an unfair and deceptive trade practice under state law. The court rejects these arguments.

Specific performance

Appellants challenge the district court’s grant of injunctive relief. But appellants have not proffered any argument or supporting authority showing that this reconveyance could be undone or that this court could fashion for them some manner of meaningful remedy on this score. Accordingly, this portion of the appeal is moot.

Dismissed in part, affirmed in part.

Williams v. Brooksby, Case No. 22-1982, Oct. 15, 2024. 4th Cir. (per curiam), from MDNC at Greensboro (Eagles). Adam G. Wood for Appellants. Dhamian A. Blue and James C. White for Appellees. VLW 024-2-274. 12 pp.