Antitrust Law Daily Wrap Up, ANTITRUST NEWS: U.S. Opposes Bail Pending Appeal for AU Optronics Executives, (Dec 13, 2012)

By Jeffrey May, J.D.

The Department of Justice has informed the U.S. Court of Appeals in San Francisco that two high-level executives of AU Optronics Corporation (AUO), a Taiwan-based liquid crystal display (LCD) producer, are not entitled to bail pending appeal of their price fixing convictions. The Department of Justice Antitrust Division filed a brief opposing the defendants' motion for release pending appeal on December 10 (U.S. v. Hsiung, No. 12-10492).

In October, the district court entered judgments of conviction against Hsuan Bin Chen and Hui Hsiung for conspiring to fix prices for TFT-LCDs in violation of Section 1 of the Sherman Act. TFT-LCDs are a major component of desktop computer monitors and notebook computers.

The individuals were each sentenced to serve 36 months in prison and to pay a $200,000 fine. AUO also was convicted and fined $500 million. The district court denied the executives bail pending appeal and ordered them to report to prison on November 30. The executives appealed their convictions and sought bail from the appellate court.

Under the Bail Reform Act, a defendant must be detained pending appeal unless a judicial officer finds “by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released” and “that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in—(i) reversal, (ii) an order for a new trial, (iii) a sentence that does not include a term of imprisonment, or (iv) a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process.” 18 U.S.C. § 3143(b).

According to the government's brief, the defendants’ claim of a substantial question rested on their assertion that the prosecution involved a novel application of the Sherman Act to foreign conduct. The government contended that there was nothing novel about prosecuting this price fixing case.

The government claimed that the defendants incorrectly relied on an argument that the district court erred when it denied them the right to defend their conduct under rule of reason analysis. "[T]he government charged and proved that defendants participated in a price-fixing conspiracy —conduct which the Supreme Court has long held per se illegal under the Sherman Act."

Moreover, Chen and Hsiung failed to show by clear and convincing evidence that they were unlikely to flee, according to the government. The defendants pose a serious risk of flight, it was asserted.

News: Antitrust AntitrustDivisionNews