by Rachel S. Brass, Joel Willard, and Rachel
In 2012 the DOJ conducted
perhaps the most important trial under the international cartel enforcement and
amnesty program. United States v. AU Optronics was also the first trial of a
corporate defendant in a criminal price fixing case in over a decade; and the
first trial of a foreign corporate defendant. From this truly landmark trial,
certain lessons for future price fixing trials are revealed. This article
focuses on those lessons.
In 2012, the United States
Department of Justice Antitrust Division ("DOJ" or
"division") conducted what many leading antitrust practitioners have
deemed "the most important trial ever conducted with the Antitrust
Division's crown jewel, the international cartel enforcement and amnesty
program." As acting Assistant Attorney General Joseph Wayland recently
confirmed, "[t]he AUO conviction was a major victory for the
division." That trial, which lasted eight weeks, "resulted in a
historic first" for the division, as it "marked the first time the
division litigated the double the gain or loss issue" that underlies the
alternative fine calculation provision of 18 U.S.C. § 3571(d) [an annotated version of this statute is available to lexis.com
The AUO case also marked the first trial of a corporate defendant in a criminal
price fixing case in over a decade. It was also the first trial of a foreign
(specifically Taiwanese) corporate defendant. Thus, the AUO trial presented a
rare opportunity to see a jury engage with various theories of corporate
defense in a criminal antitrust trial. It also presented an opportunity to
evaluate first hand a jury's differing reactions to testimony presented with
respect to corporate defendants and individual defendants. And the trial
provided the opportunity to see a jury wrestle with questions of new and
emerging technologies, differing approaches to business ethics and culture in
cases involving largely foreign actors, and questions of the evolving role of
the media in presenting a case.
From this trial, certain lessons for future price fixing trials-both civil and
criminal-come to the fore. This article focuses on lessons as they relate to
the jury, focusing on lessons for corporate defendants. First, while we
have entered an era in which political candidates watch their fortunes
fluctuate in real-time on Twitter, and
stock trading and value correlate with "Likes" on Facebook, the
ability to sell a story in the media does not equal success in the courtroom. Second,
the AUO trial tells us that defendants who rely on attacking and attempting to
undermine the credibility of cooperating witnesses may face an uphill battle,
particularly when the evidence of conspiracy is "overwhelming." Third,
the jury verdict points up the risk defendants take in a criminal case,
particularly corporate defendants, when their counsel offer up specific
rationales for the underlying conduct, but no percipient witnesses testify for
the defense. Fourth, the AUO conviction is an important reminder that
jury members do not leave common sense at the courthouse door.
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Rachel S. Brass is
a partner in the San Francisco office of Gibson, Dunn & Crutcher. She is a
member of the firm's Litigation Department. Ms. Brass's practice focuses on
domestic and international antitrust and competition law and appellate
litigation. Ms. Brass is a member of the Steering Group for the Antitrust
Committee of the American Bar Association's Section of International Law and
Vice Chair of the Executive Committee of the Bar Association of San Francisco's
Antitrust Section. She is a member of the Board of the Northern California
Chapter of the Association of Business Trial Lawyers.
Joel Willard is a Senior Attorney at Intel.
Rachel A. Flipse is an associate in the San Francisco office of Gibson,
Dunn & Crutcher. She currently practices in the firm's Litigation