Likewise, a business may decide not to solicit or sell its services to a customer, provided that the decision results from an independent business judgment and a not from an understanding with a competitor. The Grand Jury voted to indict all six defendants. It charged them in count one of the indictment with the crime of combination in restraint of trade and competition in violation of sections 340 and 341 of the General Business Law. The Appellate Division reversed and reinstated count one, holding that the proper charge to the Grand Jury was a per se charge and that the evidence before the Grand Jury was legally sufficient. The charge to the Grand Jury that an allocation of customers was a per se violation of the Donnelly Act was proper and the Appellate Division's order should be affirmed.
Federal law is clear on the issue.
In United States v Topco Associates, Inc. More recently, the Supreme Court reiterated its position that an allocation of markets was a per se violation of the Sherman Act in Palmer v. BRG of Georgia, Inc. There, BRG of Georgia, Inc. and Harcourt Brace Jovanovich Legal and Professional Publications both offered bar review courses in the State of Georgia. The two entities agreed, among other things, that Harcourt would not compete in Georgia and BRG would not compete outside of Georgia. Accordingly, we agree with the Appellate Division that the Grand Jury was properly instructed.