AU Optronics Execs Get Bail in LCD Appeal

, The Litigation Daily

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Scott Graham writes for The Recorder, an American Lawyer affiliate.

SAN FRANCISCO — Two Taiwanese LCD executives have been ordered released on bail following oral arguments in their antitrust case before the U.S. Court of Appeals for the Ninth Circuit.

While not a decision on the merits of the appeal, last week's order in United States v. Chiung appears to roll storm clouds over the government's high-profile win—including a $500 million fine—in its prosecution of an international price-fixing scheme in the market for liquid crystal display screens.

Judges Sidney Thomas, M. Margaret McKeown and Virginia Kendall ordered Hsuan Bin Chen and Hui Hsiung—the former president and executive vice president, respectively, of AU Optronics—released on bail last Thursday, freeing them at least temporarily from their three-year prison sentences.

"We conclude that the defendants have raised substantial questions of law or fact, which, if decided in their favor are likely to result in reversal of the convictions," the Ninth Circuit panel wrote in a brief, unsigned order.

A Ninth Circuit motions panel made up of different judges had previously denied bail pending appeal. But that was before briefing and an October argument in which McKeown and Thomas suggested that Ninth Circuit case law does not recognize a per se violation of the Sherman Act for price fixing that occurs overseas. That was the theory under which U.S. District Judge Susan Illston of the Northern District had instructed the jury.

"To adopt your position," McKeown told Kristen Limarzi of the Justice Department's antitrust division, "we would have to basically read Metro Industries [v. Sammi] as somehow in the end shying away from the statement that any foreign conduct has to be judged by the rule of reason."

Judge Thomas also suggested that some elements of the crime may not have been presented to the grand jury.

Following the argument, Hsiung and Chen's attorneys at Cooley, Hogan Lovells and Riordan & Horgan renewed their bail motion. They argued there was no contention that Chen and Hsiung posed a flight risk or any threat of violence. That left only the issue of whether they had raised "substantial questions" about their convictions.

DOJ had opposed, with Limarzi writing that the motion "is based solely on the court's decision to hold oral argument and pose questions to government counsel during that argument."

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