Antitrust Law Daily Wrap Up, ANTITRUST—E.D. Tex.: Court rejects ‘belated’ request for evidentiary hearing in criminal wage fixing case, (Mar 29, 2022)

By Elizabeth C. Pope, J.D.

“To put it bluntly,” the court said, “the belated request gives the court the impression” that the defendant, “displeased with the court’s ruling, is hoping to obtain a ‘second bite at the apple.’”

A federal district court in Texas rejected a motion for reconsideration of a motion to dismiss and a request for an evidentiary hearing filed by a criminal defendant in a suit alleging wage-fixing in violation of the Sherman Act. The defendant failed to show why he did not request an evidentiary hearing in the first place or that clear errors of law had occurred (U.S. v. Rodgers, March 28, 2022, Mazzant, A.).

Wage-fixing allegations. In April 2021, the Department of Justice Antitrust Division brought a criminal case alleging wage fixing in violation of the Sherman Act related to in-home physical therapy services. A federal grand jury returned an indictment against Neeraj Jindal, the former owner of a Texas-based company providing in-home physical therapy services and John Rodgers, a physical therapist and the clinical director of Jindal’s company. The indictment alleged that the two men participated in a conspiracy to pay lower rates to certain physical therapists, by texting the owners of other physical therapy companies to suggest that they collectively lower their pay rates.

In November 2021 the court denied Rodger’s motion to dismiss, rejecting an assertion that the government’s prosecution of him breached an oral non-prosecution agreement. At that time, he did not request an evidentiary hearing. Rodgers subsequently made a motion for reconsideration, arguing he was entitled to an evidentiary hearing on the motion to dismiss.

The court denied the motion. Granting a motion to reconsider is, the court said, “’an extraordinary remedy that should be used sparingly’” and only to permit a party “’to connect manifest errors of law or fact, or to present newly discovered evidence.’”

Rodgers failed to request an evidentiary hearing on the original motion and the motion for reconsideration lacked any explanation for why an evidentiary hearing was not requested sooner. He also failed to specify what additional evidence or testimony would be offered at an evidentiary hearing, beyond that which was already before the court at the time of the original ruling. In addition, because the court did not rely on any disputed facts in determining whether an oral non-prosecution agreement was reached, conducting an evidentiary hearing would be unnecessary. Rodgers presented no evidence of a need to correct a clear error of law or to prevent manifest injustice.

The case is No. 4:20-cr-00358-ALM-KPJ.

Attorneys: Jariel A. Rendell for the U.S. Paul Edward Coggins (Locke Lord LLP) for John Rodgers.

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