US Court of Appeals for the Eleventh Circuit

Case no.: 24-13674
Date filed: June 2, 2026

A federal appeals court has ruled that although the exchange of cost or pricing information among competitors is not necessarily a criminal act, a jury may infer price fixing or bid rigging from such communication.

Ready-mix concrete has a restricted geographical marketing area around each production facility due to transportation costs and the perishable nature of the product. A federal grand jury indicted several individuals and concrete companies in southern Georgia for violating the Sherman Act through a criminal conspiracy to fix prices and rig bids. Among those charged were Elite Concrete general manager John David Melton (David) and his brother Greg, an Argos Company division manager.

Companies in this market generally send an annual price increase letter to their customer base. Evidence presented at trial indicated that David shared a draft of his letter with Greg and others before sending it to customers. Other testimony alleged Greg learned David was pricing a particular job at $80 per ton and instructed his subordinate to price it at $82 per ton. Additionally, it was alleged that the brothers had an understanding that Elite Concrete would get 75% of the work for VB Construction. Elite Concrete delivered the product to VB jobs even though an Argos sales rep had quoted a lower price.

The federal jury convicted David of conspiracy to violate the Sherman Act by imposing an unreasonable restraint on trade. He was sentenced to 26 months' imprisonment. David appealed, arguing there had been insufficient evidence to support a conviction. The sharing of price information does not automatically establish an agreement to fix prices.

The US Court of Appeals for the Eleventh Circuit held that sharing cost or pricing information among competitors is not a per se violation of the Sherman Act. However, a jury may draw reasonable inferences from an exchange of information. In this case, the jury reasonably inferred that the purpose of sharing a draft of the annual letter to customers was to support a price increase throughout the market. An example of the effect on prices was found in bid rigging on $80-per-ton concrete as well as in the allocation of work at higher prices. The court concluded:

“Absent an agreement to fix prices, there is nothing unlawful about competitors meeting and exchanging price information or discussing problems common in their industry, or even exchanging information as to the cost of their product. [However], a jury may infer price fixing from evidence of an exchange of price information…. As the record reflects, a reasonable jury could have found beyond a reasonable doubt that David participated in an agreement to fix prices, rig bids, or allocate markets based on evidence that he provided information to competitors for annual price increase letters for the purpose of raising prices, discussed specific bids with competitors so that competitors made non-competitive bids, and divided market areas and customers between competitors.”

Most of the damaging testimony in this case came from two individuals: an Argos employee and a former Argos employee. Surreptitiously recorded conversations corroborated the testimony. The witnesses were cross-examined regarding their motivation. Nevertheless, the jury was entitled to find them credible.

Some shop talk among individuals in the same line of business is to be expected, but any discussion of pricing or cost should be avoided.

Participants: No attorneys of record listed
Before: Judges Rosenbaum, Grant, and Marcus
Opinion by: The full court
Outcome: Conviction affirmed

Source: Attach the complete opinion or decision PDF here.