Opinion
Case No. 2:20-cr-00115-JLB-MRM
02-24-2021
UNITED STATES OF AMERICA, v. WILLIAM N. HARWIN
ORDER DENYING DR. HARWIN'S MOTIONS TO DISMISS INDICTMENT (Docs. 29 , 30, 51)
Defendant William N. Harwin, a doctor of oncology, was charged by grand jury indictment with one count of conspiracy to restrain trade under section one of the Sherman Act. (Doc. 1); 15 U.S.C. § 1. Dr. Harwin was the president and managing partner of Florida Cancer Specialists & Research Institute, LLC ("FCS"), an oncology practice with locations throughout Florida. According to the indictment, Dr. Harwin knowingly conspired with officers from a competing oncology practice ("Oncology Company A") to allocate the market for oncological services in Southwest Florida (defined as Collier, Lee, and Charlotte counties).
Dr. Harwin has filed three separate motions to dismiss this action and argues that: (1) the indictment fails to state an offense (Doc. 29); the indictment is time-barred by the relevant statute of limitations (Doc. 30); and (3) as applied to this case, section one of the Sherman Act is either void for vagueness or ambiguous enough to trigger the rule of lenity (Doc. 51).
After careful consideration of the parties' well-reasoned arguments and the legal precedent which this Court is bound to apply, all three of Dr. Harwin's motions to dismiss (Docs. 29, 30, 51) are DENIED.
BACKGROUND
The allegations set forth in the indictment and viewed in the light most favorable to the Government for the purposes of a pre-trial motion to dismiss are as follows: Oncology is a branch of medicine that deals with the diagnosis and treatment of cancer. (Doc. 1 at ¶ 1.) The field has three major areas of specialization: medical oncology, radiation oncology, and surgical oncology. (Id.) For purposes of this case, only the first two specialties are relevant. Medical oncologists treat cancer using chemotherapy and other medications, and radiation oncologists treat it using radiation therapy. (Id. at ¶ 2.) It is not unusual for oncologists of differing specialties to work together as part of a practice group that provides multiple treatment options for cancer patients. (Id. at ¶ 3.)
From 1999 through September 2016, Dr. Harwin was the "President and Managing Partner Physician" at FCS, a privately owned oncology practice group headquartered in Fort Myers, Florida. (Id. at ¶ 6.) FCS allegedly had "approximately 100 locations" throughout Florida and provided both medical oncology treatments and radiation oncology treatments in some of those locations. (Id.) But in Southwest Florida, FCS only provided medical oncology treatments, not radiation oncology treatments. (Id.) According to the indictment, this apparent discrepancy was the result of a conspiracy to restrain trade between Dr. Harwin and officers of "Oncology Company A," another provider of cancer treatment in Florida.
Like FCS, Oncology Company A allegedly had multiple locations in Florida and provided both medical and radiation oncology treatments in some of those locations. (Id. at ¶ 8.) Also, like FCS, Oncology Company A provided only one of those services in its Southwest Florida locations—radiation oncology. (Id.) The indictment provides that, for as long as Dr. Harwin was president of FCS, he conspired with various officers of Oncology Company A to divide up the market for oncological services in Southwest Florida—FCS would provide only medical oncology services, and Oncology Company A would provide only radiation oncology services. (Id. at 18(a).) Under the alleged terms of this conspiracy, neither FCS nor Oncology Company A would hire oncologists who specialized in the other's allocated market niche. (Id. at 18(c).) Moreover, neither FCS nor Oncology Company A would provide drugs or treatments that, consistent with the conspiracy, the other was designated to provide. (Id. at 18(e).) And finally, FCS and Oncology Company A allegedly agreed to prevent competition from practice groups that were not in on the deal. (Id. at 18(d).)
The indictment contains various threatening quotes allegedly uttered by Dr. Harwin to officers of Oncology Company A—supposedly as a means of enforcing the conspiracy. (Id. at 18(c), (e)-(f).)
LEGAL STANDARD
"A party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits." Fed. R. Crim. P. 12(b)(1). "Under [Rule 12(b)] an indictment may be dismissed where there is an infirmity of law in the prosecution; a court may not dismiss an indictment, however, on a determination of facts that should have been developed at trial." United States v. Torkington, 812 F.2d 1347, 1354 (11th Cir. 1987); see also United States v. Critzer, 951 F.2d 306, 307 (11th Cir. 1992) (per curiam) ("The sufficiency of a criminal indictment is determined from its face."). A sufficient indictment: "(1) presents the essential elements of the charged offense, (2) notifies the accused of the charges to be defended against, and (3) enables the accused to rely upon a judgment under the indictment as a bar against double jeopardy for any subsequent prosecution for the same offense." United States v. Dabbs, 134 F.3d 1071, 1079 (11th Cir. 1998). The factual allegations in an indictment are "viewed in the light most favorable to the government." Torkington, 812 F.2d at 1354.
DISCUSSION
I. Legal Background of Per Se Rule and Horizontal Market Restraints.
Under section one of the Sherman Act, "[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal." 15 U.S.C. § 1. Violators are "guilty of a felony" punishable by a fine or up to ten years' imprisonment. Id. The Supreme Court has explained that a literal application of section one is impossible because "every" contract is, in a sense, a "restraint of trade," and the statute must therefore be limited to "only unreasonable restraints of trade." NCAA v. Bd. of Regents of Univ. of Okla., 468 U.S. 85, 98 (1984) (citing, inter alia, Arizona v. Maricopa Cnty Med. Soc'y, 457 U.S. 332, 342-43 (1982)); see also United States v. Joint-Traffic Ass'n, 171 U.S. 505, 566-67 (1898).
In most cases, determining whether a restraint of trade is "unreasonable" requires application of the so-called "rule of reason," which demands "consideration of the facts peculiar to the business in which the restraint is applied, the nature of the restraint and its effects, and the history of the restraint and the reasons for its adoption." United States v. Topco Assocs., Inc., 405 U.S. 596, 607 (1972) (citing Bd. of Trade of Chi. v. United States, 246 U.S. 231, 238 (1918)). But some restraints are presumed unreasonable per se because they are "so plainly anticompetitive and so often lack any redeeming virtue." Broad. Music, Inc. v. Columbia Broad. Sys., Inc., 441 U.S. 1, 8 (1979) (internal citations and quotations omitted) [hereinafter, "BMI"].
One type of restraint deemed per se unreasonable by the Supreme Court is "an agreement between competitors at the same level of the market structure to allocate territories in order to minimize competition." Topco Assocs., Inc., 405 U.S. at 608. Such agreements are deemed "horizontal" restraints and presumed illegal "regardless of whether the parties split a market within which both do business or whether they merely reserve one market for one and another for the other." Palmer v. BRG of Ga., Inc., 498 U.S. 46, 49-50 (1990) (per curiam).
Application of the per se rule to market allocation agreements might require some level of factual analysis, albeit not of the same depth as in a rule-of-reason case. See NCAA, 468 U.S. at 100, 104 n.26 (explaining that even though a horizontal restraint is usually "presumed unreasonable without inquiry into the particular market context in which it is found," it is also true that "[p]er se rules may require considerable inquiry into market conditions before the evidence justifies a presumption of anticompetitive conduct"). Before applying the per se rule to a market allocation agreement, courts must—at a minimum—resolve the basic question posed in Topco: are the parties to the agreement "competitors at the same level of the market structure?" 405 U.S. at 608; see also NCAA, 468 U.S. at 99 (explaining that a horizontal restraint is "an agreement among competitors on the way in which they will compete with one another" (emphasis added)).
If parties are not competitors on the same market tier, then a market allocation agreement between them is not per se illegal. Cf. Cha-Car, Inc. v. Calder Race Course, Inc., 752 F.2d 609, 614 (11th Cir. 1985) (affirming district court's decision not to apply per se rule to horse-racing tracks' refusal to deal with certain horse trainers because the tracks "never compete for customers or for horses" even though they "operate on the same market level within the same geographic area"); see also Double D Spotting Serv., Inc. v. Supervalu, Inc., 136 F.3d 554, 558-59 (8th Cir. 1998) ("[A] plaintiff alleging a horizontal restraint must at least define the market and its participants . . . ." (internal citation omitted)).
In Cha-Car, the Eleventh Circuit assumed that group boycotts are normally governed by the pro se rule, but a later decision by the Supreme Court undermines this assumption. See Nw. Wholesale Stationers, Inc. v. Pac. Stationery & Printing Co., 472 U.S. 284, 297 (1985) (deciding four months after Cha-Car that "not all concerted refusals to deal should be accorded per se treatment"). Regardless, the specific practice at issue in Cha-Car is not important. The key takeaway is that the Eleventh Circuit analyzed whether the parties were indeed competitors before deciding whether to apply the per se rule.
Some district courts note that the per se rule is intended to avoid all market analysis, including defining the relevant market. See, e.g., In re Blue Cross Blue Shield Antitrust Litig., No. 2:13-CV-20000-RDP, 2018 WL 3326850, at *5 (N.D. Ala. June 12, 2018) ("In a per se case, evidence of a formal antitrust market definition is generally not required." (citing NCAA, 468 U.S. at 100)). But unless the parties are obvious competitors, some threshold analysis of the market is necessary. Cha-Car, Inc., 752 F.2d at 614. This analysis does not need to mimic the granularity of rule-of-reason cases, but again, it should be robust enough to determine if the parties to the conspiracy are "competitors at the same level of the market structure." 405 U.S. at 608. Further investigation of anti-competitive harm and pro-competitive benefit is not required. To the extent the Government's sur-reply (Doc. 50) suggests that no market analysis whatsoever will be required at trial, the Court disagrees. Indeed, such an argument is contradicted by the indictment itself, which takes pains to explain how the oncology industry works.
II. The Indictment Adequately Alleges the Existence of Competitors Within an Oncology Market.
Dr. Harwin first argues that the indictment must be dismissed because it rests on two false premises: (1) there is a "general oncology" market in Southwest Florida, and (2) medical oncologists compete with radiation oncologists within this "general oncology" market. (Doc. 29 at 6-8.) To explain why these assumptions are false, Dr. Harwin asks the Court to take judicial notice of "relevant background information" about the operation of the oncology market, which he included in several footnotes to his motion. (Id., nn. 1-5). This background information, according to Dr. Harwin, may be judicially noticed because it is "readily verifiable and not subject to reasonable dispute." (Id. at 6); see also Fed. R. Evid. 201(b). The Government counters that these footnotes are indeed subject to reasonable dispute because the information they contain is not generally known and cannot be verified from unquestionably accurate sources. (Doc. 40 at 4.)
After reviewing the footnotes, the Court agrees with the Government. The information in the footnotes is not readily verifiable; none of the footnotes cite any sources. And even if they did, the Government disputes Dr. Harwin's views on the operation of the oncology market. (Doc. 40 at 14-15). At this point, the Court cannot say whether the Government's contrary view is unreasonable. See United States v. Jones, 29 F.3d 1549, 1553 (11th Cir. 1994) (explaining that a fact to be judicially noticed "must be one that only an unreasonable person would insist on disputing" (citation omitted)).
Setting aside these footnotes, the indictment provides that FCS offered both medical oncology and radiation oncology treatment throughout its locations in Florida but did not offer radiation oncology in Southwest Florida. (Doc. 1 at ¶ 6.) According to the indictment, FCS's failure to offer radiation oncology services in this market was allegedly due to a conspiracy "to suppress and eliminate competition" between Dr. Harwin and officers of Oncology Company A—another company that offered both medical and radiation oncology in various locations outside of Southwest Florida. (Id. at ¶¶ 8, 14.)
Under the terms of this supposed conspiracy, Dr. Harwin and Oncology Company A's officers knowingly agreed to allocate different portions of the Southwest Florida's oncology market between themselves: FCS would not employ radiation oncologists, and Oncology Company A would reciprocate by not hiring medical oncologists. (Id. at ¶¶ 18(a)-(h).) The Government claims this arrangement was "per se unlawful" under section one of the Sherman Act. (Id. at ¶ 16.) Viewing the facts in the light most favorable to the Government, the indictment states a per se claim for conspiracy to restrain trade under section one of the Sherman Act. Cf. United States v. Cargo Serv. Stations, Inc., 657 F.2d 676, 684 (5th Cir. 1981) (upholding jury instruction that required Government to prove "beyond a reasonable doubt that defendants knowingly formed, joined or participated" in a conspiracy to fix prices).
Dr. Harwin insists that even if this Court were to ignore the information set forth in the footnotes of his motion, the indictment must still be dismissed because "[i]t is not a per se violation of the Sherman Act for a medical specialist to agree not to expand into a different medical specialty," and any contrary holding would be a "baseless expansion" of the statute because medical oncologists do not compete with radiation oncologists. (Doc. 29 at 7-8) (emphasis added). The Court disagrees, at least at this stage of the litigation.
The indictment makes clear that this case is not about individual oncologists with differing specialties; it is about larger oncology practices that are ostensibly capable of offering—and do offer—both medical and radiation oncology services. (Doc. 40 at 18.) It also makes clear that different oncologists "often work[] together to create a patient's overall treatment plan" and "typically treat[] cancer patients together with other oncologists as a practice group." (Doc. 1 at ¶¶ 2-3.) Finally, the indictment contains several quotes allegedly from Dr. Harwin in which he threatened employees of Oncology Company A and demanded that they end any encroachment into his medical oncology turf. (Id. at ¶¶ 18(c), 18(e)-(f).) Viewed in the light most favorable to the Government, these allegations suggest that FCS and Oncology Company A were competing oncology practice groups within the same discernable market—and that Dr. Harwin saw them as such. Therefore, the Court rejects Dr. Harwin's argument that the indictment be dismissed because it fails to allege a per se violation of the Sherman Act.
If he so chooses, Dr. Harwin is free to develop this argument at trial. See U.S. Anchor Mfg., Inc. v. Rule Indus., Inc., 7 F.3d 986, 994 (11th Cir. 1993) ("The definition of the relevant market is essentially a factual question . . . . "). To the extent Dr. Harwin may be arguing that the indictment must contain an explicit allegation that the parties to the market-allocation conspiracy were "competitors," the Court is not persuaded. The indictment contains sufficient facts to support the inference that FCS and Oncology Company A were competitors. See United States v. Poirier, 321 F.3d 1024, 1029 (11th Cir. 2003) (holding that indictment in bid-rigging case was sufficient even though it did not allege that documents transferred by county financial advisor to bidder were "confidential" because an indictment's validity should be determined by "practical, not technical, considerations" (citation omitted)).
III. The Indictment Need Not Allege that Territorial Allocations Among Healthcare Providers Are Equivalent to Territorial Allocations in Other Industries.
Dr. Harwin next contends that, even assuming the indictment sets forth the elements of a Sherman act violation, the indictment must still be dismissed because "[t]he Supreme Court has never considered whether horizontal territorial allocations between competitors in a healthcare services market should be analyzed under the rule of reason or using the per se approach." (Doc. 29 at 8-9.) Dr. Harwin proceeds to argue that every Supreme Court case addressing market allocation involved "products markets," as opposed to "professional services markets" like oncology, and therefore a per se rule should not be mechanically applied to this case because the medical services field is simply too different from manufacturing. (Id. at 11.)
The Court believes Dr. Harwin's argument is foreclosed by the Supreme Court's opinion in Arizona v. Maricopa County Medical Society, where the Court explained that horizontal price-fixing agreements (which are per se illegal under the Sherman Act) should not be treated differently simply because they are between doctors "rather than non-professionals." 457 U.S. 332, 348 (1982). In no uncertain terms, the Supreme Court declined to analyze the price restraint in that case under the rule of reason, even if it made it "easier for customers to pay." Id. at 349. The Court also rejected the idea that per se rules must be set aside for the healthcare industry because it was "so far removed from the competitive model" and reaffirmed that its prior rulings on per se anticompetitive activities were applicable to "all industries alike." Id. at 349-50 (quoting United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 222 (1940)). The Court takes this language to mean that the medical industry does not receive special exemptions from per se rules, even though it may (in some ways) be different from competitive manufacturing markets.
In fairness, Dr. Harwin's arguments mirror the concerns of many courts and commentators across the country who have observed that the Supreme Court's more recent cases may foreshadow a shift in its approach to horizontal market allocation agreements. These cases declined to apply a per se rule to practices which were akin to (or literally were) classic horizontal restraints. See, e.g., FTC v. Actavis, Inc., 570 U.S. 136, 156 (2013) (reverse payment settlement between patentee and infringer); Texaco Inc. v. Dagher, 547 U.S. 1 (2006) (price-fixing in the form of a joint venture, which was treated as a single entity); BMI, 441 U.S. at 24 (blanket licenses to perform copyrighted music at fixed prices); NCAA, 468 U.S. at 103 (plan restricting prices and output of televised football games by collegiate sports league); Cal. Dental Ass'n v. FTC, 526 U.S. 756, 779-80 (1999) (price advertising restrictions by professional association of dentists).
But the Supreme Court's precedent still holds that "an agreement between competitors at the same level of the market structure to allocate territories in order to minimize competition," is per se unreasonable. Topco Assocs., Inc., 405 U.S. at 607. And, not surprisingly, the district courts within the Eleventh Circuit have declined to abandon the per se approach to market allocation agreements without an explicit directive by the Supreme Court. See, e.g., In re Blue Cross Blue Shield Antitrust Litig., 308 F. Supp. 3d 1241, 1269 (N.D. Ala. 2018) (applying per se rule to "exclusive service areas" for healthcare insurance plans); Procaps S.A. v. Patheon Inc., 36 F. Supp. 3d 1306, 1323 n.6 (S.D. Fla. 2014) ("The trend . . . does not mean that the somewhat-dated core opinions condemning horizontal restraints as per se violations have been implicitly overruled . . . .").
The court in Blue Cross Blue Shield certified an interlocutory appeal on the issue of whether territorial restrictions that may have pro-competitive effects are per se unreasonable, but the Eleventh Circuit denied leave to appeal. See In re Blue Cross Blue Shield Antitrust Litig. (MDL 246), No. 18-90020-E, 2018 WL 7152887, at *1 (11th Cir. Dec. 12, 2018).
Until the Supreme Court says differently, territorial allocation agreements will remain per se unreasonable unless they fall into one of the case-specific exceptions described above. On the face of the indictment, the alleged conspiracy between Dr. Harwin and the officers of Oncology Company A does not appear to fall into one of the Supreme Court's exceptions. Therefore, this Court has no choice but to reject Dr. Harwin's argument and assume that the practices alleged in the indictment are governed by the per se rule set forth in Topco, not the rule of reason.
IV. The Charged Conspiracy Falls Within the Limitations Period.
In a separate motion, Dr. Harwin argues that the indictment must be dismissed because the charged conspiracy falls outside of the statutory limitations period. (Doc. 30.) An overt act is not a required element for a conspiracy under section one of the Sherman Act. United States v. Dynalectric Co., 859 F.2d 1559, 1565 n.6 (11th Cir. 1988) (citing United States v. A-A-A Elec. Co., 788 F.2d 242, 245 (4th Cir. 1986)). "With respect to conspiracy statutes that do not require proof of an overt act, the indictment satisfies the requirements of the statute of limitations if the conspiracy is alleged to have continued into the limitations period." United States v. Coia, 719 F.2d 1120, 1124 (11th Cir. 1983). In this context, so-called "predicate acts" and "overt acts" need not be set forth in the indictment. United States v. Gonzalez, 921 F.2d 1530, 1548 (11th Cir. 1991).
Some language from Dynalectric may be read to mean that an overt act is necessary for all conspiracies for statute-of-limitations purposes, but later decisions like Gonzalez and Harriston dispel that notion. --------
"A conspiracy is deemed to have continued as long as the purposes of the conspiracy have neither been abandoned nor accomplished and the defendant has not made an affirmative showing that the conspiracy has terminated." United States v. Harriston, 329 F.3d 779, 783 (11th Cir. 2003) (citing Gonzalez, 921 F.2d at 1548). "A defendant can overcome this presumption of continued participation only by showing that he affirmatively withdrew from the conspiracy or that the final act in furtherance of the conspiracy has occurred." Id. (citing United States v. Reed, 980 F.2d 1568, 1584 (11th Cir. 1993)). And "any indictment alleging facts . . . close to the commencement of the limitations period could support an inference that the conspiracy continued into the limitations period" because the conspiracy's continuation "may be proven circumstantially." Coia, 719 F.2d at 1124-25.
The charged conspiracy is subject to a five-year statute of limitations, which means the conspiracy must have continued through September 23, 2015—five years before the indictment was returned. 18 U.S.C. § 3282(a); (Doc. 1). The indictment alleges that the conspiracy between Dr. Harwin and the officers of Oncology Company A began "as early as 1999" and "continu[ed] through at least as late as September 2016." (Doc. 1 at ¶ 14.) These allegations place the conspiracy within the five-year statutory limitations period. Moreover, the indictment contains quotes supposedly uttered by Dr. Harwin which suggest that the charged conspiracy was ongoing as late as April 15, 2013—fourteen years after it allegedly began—with no indication of withdrawal or conclusion. Read as a whole and construing the facts in the light most favorable to the Government, the indictment properly charges a conspiracy that occurred within the five-year statute of limitations period. Accordingly, the Court declines to dismiss the indictment on statute-of-limitations grounds. If Dr. Harwin wishes to argue that the charged conspiracy fell outside the statute of limitations, he may do so at trial.
V. Section One of the Sherman Act is Not Vague or Ambiguous.
Finally, Dr. Harwin argues that the Sherman Act is either void for vagueness as applied to this case, or ambiguous enough to trigger the rule of lenity. (Doc. 51.) "A statute is void for vagueness under the Fifth Amendment's Due Process Clause if it 'fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.'" United States v. Ruggiero, 791 F.3d 1281, 1290 (11th Cir. 2015) (quoting United States v. Williams, 553 U.S. 285, 304 (2008)). "There is a strong presumption that statutes passed by Congress are valid." United States v. Wayerski, 624 F.3d 1342, 1347 (11th Cir. 2010) (citing United States v. Nat'l Dairy Prod. Corp., 372 U.S. 29, 31 (1963)).
The wording of the Sherman Act has always been broad and somewhat vague. This is not an accident. As Chief Justice Burger explained in United States v. U.S. Gypsum Co., Senator John Sherman (after whom the statute is named), "adverted to the open texture of the statutory language in 1890 and accurately forecast its consequence—a central role for the courts in giving shape and content to the Act's proscriptions." 438 U.S. 422, 438 n.14 (1978). Senator Sherman admitted that it was "difficult to define in legal language the precise line between lawful and unlawful combinations," but believed that this was "for the courts to determine in each particular case." Id. (citation omitted). It should therefore surprise no one that, as the Court explained earlier in this order, the Supreme Court has never interpreted section one of the Sherman Act literally because every contract could potentially violate the Sherman Act. NCAA, 468 U.S. at 98.
No court has found section one of the Sherman Act unconstitutionally void for vagueness, and it is noteworthy that the only vagueness challenge to section one of the Sherman Act that made it to the Supreme Court was rejected. Nash v. United States, 229 U.S. 373, 378 (1913) ("We are of opinion that there is no constitutional difficulty in the way of enforcing the criminal part of the act."); see also Johnson v. United States, 576 U.S. 591, 603-04 (2015) ("As a general matter, we do not doubt the constitutionality of laws that call for the application of a qualitative standard such as 'substantial risk' to real-world conduct; 'the law is full of instances where a man's fate depends on his estimating rightly . . . some matter of degree.'" (quoting Nash, 229 U.S. at 377)).
The Supreme Court has also rejected a vagueness challenge to the Robinson-Patman Act—another statute prohibiting anticompetitive practices—and explained that vagueness standards are not as stringent "where the statute is directed only at conduct designed to destroy competition, activity which is neither constitutionally protected nor socially desirable." Nat'l Dairy Corp., 372 U.S. at 36. When evaluating the clarity of such statutes, the Supreme Court allowed lower courts to consider "not only the terms of the statute 'on its face' but also . . . the conduct to which it is applied." Id.
Dr. Harwin is charged with entering into a horizontal market allocation agreement—one of the oldest practices the Supreme Court has held to be per se illegal under the Sherman Act. Indeed, the application of the per se rule to such agreements traces its lineage to at least 1899, when the Supreme Court adopted the reasoning of Judge Taft (later Chief Justice Taft) in Addyston Pipe & Steel Co. v. United States, 175 U.S. 211, 237-38 (1899).
Despite some cases of a more recent vintage casting doubt on whether this rule may be upheld in the future, courts continue to apply Addyston's progeny to territorial allocation cases. See, e.g., In re Blue Cross Blue Shield Antitrust Litig., 308 F. Supp. 3d at 1269; Procaps S.A., 36 F. Supp. 3d at 1323. Here, at a bare minimum, a person of ordinary intelligence could have ascertained that the conduct at the core of the indictment—entering into a territorial allocation agreement—is per se illegal under the Sherman Act. The Supreme Court has directly addressed such agreements in multiple cases previously discussed in this order. Dr. Harwin may believe that application of the per se rule to the facts of his case is uncertain, but that is not a winnable critique of the Sherman Act (which does not say anything about per se rules in the first place). Dr. Harwin's criticisms are not really aimed at the statutory text, but at the judicially created doctrines invented to manage the scope of the statute. An analogy in a Sixth Circuit case (that did not involve an antitrust violation) is particularly appropriate here:
What Tatum seeks to accomplish here would be no different from a party, facing a suit under the Sherman Act for engaging in an illegal tying arrangement defending itself by saying, not that the Sherman Act itself is unconstitutionally vague . . . but rather that the Supreme Court's law regarding tying arrangements is unconstitutionally vague. No one will claim that the Sherman Act is a model of specificity. . . . However, the claims of void for vagueness lodged against it have failed. More importantly, neither is the Court's jurisprudence regarding tying arrangements a paragon of clarity. In fact, the Supreme Court has directly addressed the issue of tying arrangements thirteen times since the passage of the Sherman Act. Nonetheless, its occasionally obtuse teaching on the issue of tying arrangements does not make the underlying statute unconstitutionally vague.Columbia Nat. Res., Inc. v. Tatum, 58 F.3d 1101, 1107 (6th Cir. 1995) (internal citation omitted). The same could be said for the Supreme Court's law applying a per se rule to territorial allocation agreements. Although the Court may disagree with the reasoning and outcomes of prior precedent interpreting the text of the Sherman Act, it is nonetheless bound by that precedent. Accordingly, the Court rejects Dr. Harwin's vagueness challenge.
For similar reasons, the Court also rejects Dr. Harwin's argument regarding ambiguity and lenity. "The rule of lenity is a canon of statutory construction that requires courts to construe ambiguous criminal statutes narrowly in favor of the accused." United States v. Gongora Baltan, 798 F. App'x 597, 600 (11th Cir. 2020) (quoting United States v. Watts, 896 F.3d 1245, 1255 (11th Cir. 2018)). The rule "applies only in cases of 'grievous' ambiguity—where the court, even after applying all of the traditional tools of statutory interpretation, 'can make no more than a guess as to what Congress intended.'" Shular v. United States, 140 S. Ct. 779, 788 (2020) (Kavanaugh, J., concurring) (quoting Ocasio v. United States, 136 S. Ct. 1423, 1434 n.8 (2016)); see also Robers v. United States, 572 U.S. 639, 646 (2014) ("Regardless, the rule of lenity applies only if, after using the usual tools of statutory construction, we are left with a 'grievous ambiguity or uncertainty in the statute.'" (quoting Muscarello v. United States, 524 U.S. 125, 139 (1998))).
Given the purposely broad text and the historical context of the Sherman Act—together with the Supreme Court's history of deciding antitrust cases on highly fact-specific grounds—it is difficult for this Court to conclude that the statute rises to the necessary level of ambiguity to warrant lenity and dismissal of the indictment in this case. Id. (Kavanuagh, J., concurring) ("[A]s Justice Scalia rightly noted, the term 'grievous ambiguity' provides 'little more than atmospherics' . . . . That said, atmospherics can matter." (citation omitted)). Accordingly, the Court is compelled to deny Dr. Harwin's motion to dismiss on this ground as well.
CONCLUSION
For the above reasons, all of Dr. Harwin's motions to dismiss (Docs. 29, 30, 51) are DENIED.
ORDERED in Fort Myers, Florida, on February 24, 2021.
/s/ _________
JOHN L. BADALAMENTI
UNITED STATES DISTRICT JUDGE