Antitrust Law Daily Wrap Up, ANTITRUST—NDCal: Subpoenas Seeking FBI Testimony Quashed in TFT-LCD Criminal Price Fixing Case, (Dec 10, 2012)

By Tobias J. Gillett, J.D., LLM.

Subpoenas seeking testimony at trial from FBI agents involved in the criminal price fixing case against an executive of AU Optronics Corporation, a liquid crystal display manufacturer, should not issue because the executive did not show the agents would have testimony relevant to the case, the federal district court in San Francisco has ruled (U.S. v. Leung, December 6, 2012, Illston, S.).

On March 13, 2012, following an eight-week trial, a federal jury in San Francisco convicted AU Optronics Corporation, AU Optronics Corporation America, and two of its executives of charges of conspiring to fix the prices of thin film transistor liquid crystal display panels sold worldwide in violation of Section 1 of the Sherman Act. The court declared a mistrial in the case against Shiu Lung Leung, a.k.a. Steven Leung. On June 11, 2012, the convicted defendants’ motions for acquittal or, in the alternative, a new trial, were denied (2012-1 Trade Cases ¶77,924).

In the present action, Leung sought to compel the testimony of two FBI agents involved in the case, including testimony regarding the FBI’s conduct of its investigation into the TFT-LCD industry, the manner in which the FBI collected and organized the documents it seized from AU Optronics, and the total number of documents seized.

In response, the government argued that the issues were whether Leung joined the conspiracy and whether he had any legitimate defenses to the charges, and that the testimony sought would not provide insight into those issues. Furthermore, the government contended that, even if the testimony would be relevant, the agents could not provide testimony on the subjects the subpoenas addressed. Although both agents were involved in acquiring the search warrant for AU Optronics’s offices and in conducting the search, the government asserted that neither agent had much involvement in the investigation after the search, and that the Department of Justice Antitrust Division reviewed and organized the documents, not the FBI.

The court agreed with the government, finding that Leung had not shown how the FBI’s conduct of the investigation had relevance to the defense of the case. The court cited case precedent for the proposition that “[m]erely showing that an investigation is sloppy does not establish relevance.” Moreover, Leung did not explain how the government’s confiscation and organization of the seized documents would be relevant to his case, particularly since the documents seized would likely not be admitted at trial.

In addition, the court agreed with the government that the FBI agents would probably not be able to provide substantial testimony regarding the subjects addressed in the subpoenas, even if they were required to testify. Therefore, the court granted the government’s motion to quash the subpoenas.

The case is No. CR 09-110 SI.

Dara Lucille Cashman (Cashman Law Offices) for Shiu Lung Leung. Brent Charles Snyder for the U.S. Department of Justice.

Cases: Antitrust CaliforniaNews AntitrustDivisionNews