Antitrust Law Daily Wrap Up, TOP STORY—NDCal: No Acquittal or New Trial for AU Optronics Executive Convicted on Price-Fixing Charges, (May 3, 2013)

By Tobias J. Gillett, J.D., LL.M.

A former senior manager of liquid crystal display (LCD) producer AU Optronics Corporation was not entitled to acquittal or a new trial, following conviction for his role in a conspiracy to fix prices for thin-film transistor-liquid crystal display (TFT-LCD), the federal district court in San Francisco has ruled (U.S. v. Leung, May 2, 2013, Illston, S.).

On March 13, 2013, a jury convicted AU Optronics Corporation, AU Optronics Corporation of America, and two executives of the companies, but failed to reach a unanimous verdict as to executive Steven Leung. In a retrial, a jury found him guilty, and he moved for a judgment of acquittal or for a new trial.

The court explained that Federal Rule of Civil Procedure 29 permits a court to "enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction," while FRCP 33 permits a court to "vacate any judgment and grant a new trial if the interest of justice so requires."

Juror misconduct. The court first rejected Leung’s arguments based on alleged juror misconduct. The court observed that Federal Rule of Evidence 606(b) barred testimony of jurors "as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith." The court concluded that case law supported the Rule’s application to communications made before the deliberative process, and therefore barred testimony of a juror regarding internal discussions among the jurors on which Leung’s arguments relied.

Evidentiary rulings/misconduct by prosecution. The court found no errors in evidentiary rulings Leung challenged. The prosecution did not ask improper questions, and the alleged misconduct would not have necessitated a new trial even if it did.

The court also rejected Leung’s contentions "(1) that the evidence failed to establish commerce, under either [Foreign Trade Antitrust Improvements Act] exclusion, beyond a reasonable doubt and (2) that Sherman Act violations based on foreign conduct are subject to a rule-of-reason analysis." The court rejected the contentions for the same reasons that it rejected them in its order denying motions for acquittal or a new trial filed by the companies and the other two executive s (2012-1 Trade Cases ¶77,924).

The case is No. 09-CR-0110 SI.

Attorneys: Brent Charles Snyder, U.S. Department of Justice, for the United States of America. Dara Lucille Cashman (Cashman Law Offices) for Steven Leung.

Companies: AU Optronics Corp.

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