USA – GEORGIA Trends and Developments Contributed by: Lohr Beck and Kasey Clark, King & Spalding LLP
The Latest in Georgia Antitrust Litigation, Including Multi-District Litigation Georgia’s antitrust framework: a constitutional and common law approach Unlike many states, Georgia lacks a comprehensive antitrust enforcement framework modelled after the Sherman or Clayton Acts. Instead, Georgia’s antitrust framework is rooted in common law and the state’s constitution. Article III, Section VI, Paragraph V(c) of the Georgia Constitution declares that Georgia’s legis - lature, the General Assembly, shall not have the power to authorise any contract or agreement that has the effect of “lessening competition” or “encouraging a monopoly” – declaring such agreements unlawful and void. While Georgia does have a statute, Official Code of Georgia Annotated (OCGA), Section 13-8-2, which declares unenforceable as contrary to public policy “[c]ontracts in general restraint of trade,” courts have held that this provision does not create a private right of action for damages. Instead, Georgia courts recog - nise a common law tort action for parties injured by conspiracies in restraint of trade. Because plaintiffs may not recover treble damages for violations under Georgia’s antitrust common law, plaintiffs filing suit in Georgia typically file under federal statutes that do provide for treble damages. Georgia also lacks a “little FTC Act” resembling Sec - tion 5 of the Federal Trade Commission Act, but the Georgia Fair Business Practices Act (FBPA) does prohibit “unfair or deceptive practices” in consumer transactions and is interpreted consistently with the FTC’s interpretation of Section 5 (a). While Georgia’s FBPA is not a complete substitute for an antitrust statute, it has been used to address anticompetitive conduct affecting consumers, particularly deceptive business practices. Judicial interpretation and federal influence With limited state legislative guidance, Georgia courts sometimes borrow from federal antitrust cases – at least when those cases interpret a federal provision that is analogous to one of Georgia’s few statutes. For example, the Georgia Supreme Court has relied on federal case law to uphold and define the scope of Georgia’s criminal antitrust statute, which prohibits
conspiracies in restraint of trade in transactions with the state or its subdivisions. (See, eg, State v Shep- herd Constr. Co., 281 S.E.2d 151, 154 (Ga. 1981) .) Although early Georgia cases treated horizontal price- fixing agreements as per se illegal (see, eg, Employ- ing Printers’ Club v Doctor Blosser Co., 50 S.E. 353 (Ga. 1905) ), more recent cases have applied a rule of reason analysis to contracts in restraint of trade. (See, eg, Crosby v Hospital Authority, 873 F. Supp. 1568 (M.D. Ga. 1995), aff’d, 93 F.3d 1515 (11th Cir. 1996) .) Under Georgia law, determining the reasonableness of a restraint of trade is a question of law to be decided by the judge, not the jury. (See Early v MiMedx Grp., 768 S.E.2d 823, 830 (Ga. Ct. App. 2015) .) Ultimately, because of the extensive federal antitrust framework, however, there are relatively few Georgia law antitrust cases outside of the context of covenants not to com - pete. Instead, most antitrust cases, whether civil or criminal, are filed in the state’s federal courts under federal antitrust statutes. A concrete example: USA v Evans Concrete, LLC et al. Criminal antitrust cases are rare in Georgia, with only three having been filed by the DOJ since 2020. (US Department of Justice, Antitrust Division, Antitrust Case Filings (last visit 30 July 2025).) Even more rare are jury verdicts in such cases, but a guilty jury ver - dict was reached recently in the case of USA v Evans Concrete, LLC et al. in the Southern District of Geor - gia. (No. 4:20-cr-00081-RSB-BKE (11 July 2024).) The government charged four individuals and one com - pany with violating Section 1 of the Sherman Act (15 US Code (USC), Section 1) by conspiring to fix prices, rig bids, and allocate markets for the sale of ready- mix concrete in commercial, residential, and public projects in the Savannah, Georgia area. The government alleged that between 2010 and 2016, Greg Melton and his brother, John Melton, held mana - gerial roles at rival ready-mix concrete companies in South Georgia. ( Indictment at 2–6, USA v Evans Con- crete, LLC et al., No. 4:20-cr-00081-RSB-BKE (S.D. Ga. 2 September 2020) .) Greg, the division manager of concrete sales for Argos Concrete, a multinational concrete producer, had the authority to set prices for Argos within the company’s South Georgia division.
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