The U.S. Department of Justice persuaded a 10th Circuit panel Wednesday to revive criminal antitrust allegations against a Utah-based heir-tracking company, but the DOJ may still have to drop those charges unless it wants to proceed on evidentiary standards that its own policies preclude.

At first glance, the 10th Circuit panel's ruling represents a win for prosecutors' claim that Kemp & Associates Inc. and co-owner Daniel J. Mannix operated a market-splitting agreement with rival Blake & Blake. But while the judges held that the indictment did not come down outside a five-year statute of limitations, they also refused to upend the district judge's decision to peg the case to a "rule of reason" evidentiary standard that requires judges to weigh the harm inflicted by anti-competitive conduct against the possible consumer benefits that might arise from that conduct.

James Mitchell, a Ballard Spahr attorney for Kemp & Associates, Inc., said "We and our clients are pleased that the Tenth Circuit has found that Judge Sam's rule of reason decision stands and we are hopeful that this will mark the end of the case." In addition to Mitchell, Ballard Spahr attorneys Jason Boren and Mark Gaylord represented Kemp on this case.

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