in re tft lcd flat panel antitrust made in china

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The TFT-LCD (Flat Panel) Antitrust Litigationclass-action lawsuit regarding the worldwide conspiracy to coordinate the prices of Thin-Film Transistor-Liquid Crystal Display (TFT-LCD) panels, which are used to make laptop computers, computer monitors and televisions, between 1999 and 2006. In March 2010, Judge Susan Illston certified two nationwide classes of persons and entities that directly and indirectly purchased TFT-LCDs – for panel purchasers and purchasers of TFT-LCD integrated products; the litigation was followed by multiple suits.

TFT-LCDs are used in flat-panel televisions, laptop and computer monitors, mobile phones, personal digital assistants, semiconductors and other devices;

In mid-2006, the U.S. Department of Justice (DOJ) Antitrust Division requested FBI assistance in investigating LCD price-fixing. In December 2006, authorities in Japan, Korea, the European Union and the United States revealed a probe into alleged anti-competitive activity among LCD panel manufacturers.

The companies involved, which later became the Defendants, were Taiwanese companies AU Optronics (AUO), Chi Mei, Chunghwa Picture Tubes (Chunghwa), and HannStar; Korean companies LG Display and Samsung; and Japanese companies Hitachi, Sharp and Toshiba.cartel which took place between January 1, 1999, through December 31, 2006, and which was designed to illegally reduce competition and thus inflate prices for LCD panels. The companies exchanged information on future production planning, capacity use, pricing and other commercial conditions.European Commission concluded that the companies were aware they were violating competition rules, and took steps to conceal the venue and results of the meetings; a document by the conspirators requested everybody involved "to take care of security/confidentiality matters and to limit written communication".

This price-fixing scheme manipulated the playing field for businesses that abide by the rules, and left consumers to pay artificially higher costs for televisions, computers and other electronics.

Companies directly affected by the LCD price-fixing conspiracy, as direct victims of the cartel, were some of the largest computer, television and cellular telephone manufacturers in the world. These direct action plaintiffs included AT&T Mobility, Best Buy,Costco Wholesale Corporation, Good Guys, Kmart Corp, Motorola Mobility, Newegg, Sears, and Target Corp.Clayton Act (15 U.S.C. § 26) to prevent Defendants from violating Section 1 of the Sherman Act (15 U.S.C. § 1), as well as (b) 23 separate state-wide classes based on each state"s antitrust/consumer protection class action law.

In November 2008, LG, Chunghwa, Hitachi, Epson, and Chi Mei pleaded guilty to criminal charges of fixing prices of TFT-LCD panels sold in the U.S. and agreed to pay criminal fines (see chart).

The South Korea Fair Trade Commission launched legal proceedings as well. It concluded that the companies involved met more than once a month and more than 200 times from September 2001 to December 2006, and imposed fines on the LCD manufacturers.

Sharp Corp. pleaded guilty to three separate conspiracies to fix the prices of TFT-LCD panels sold to Dell Inc., Apple Computer Inc. and Motorola Inc., and was sentenced to pay a $120 million criminal fine,

Chunghwa pleaded guilty and was sentenced to pay a $65 million criminal fine for participating with LG and other unnamed co-conspirators during the five-year cartel period.

In South Korea, regulators imposed the largest fine the country had ever imposed in an international cartel case, and fined Samsung Electronics and LG Display ₩92.29 billion and ₩65.52 billion, respectively. AU Optronics was fined ₩28.53 billion, Chimmei Innolux ₩1.55 billion, Chungwa ₩290 million and HannStar ₩870 million.

Seven executives from Japanese and South Korean LCD companies were indicted in the U.S. Four were charged with participating as co-conspirators in the conspiracy and sentenced to prison terms – including LG"s Vice President of Monitor Sales, Chunghwa"s chairman, its chief executive officer, and its Vice President of LCD Sales – for "participating in meetings, conversations and communications in Taiwan, South Korea and the United States to discuss the prices of TFT-LCD panels; agreeing during these meetings, conversations and communications to charge prices of TFT-LCD panels at certain predetermined levels; issuing price quotations in accordance with the agreements reached; exchanging information on sales of TFT-LCD panels for the purpose of monitoring and enforcing adherence to the agreed-upon prices; and authorizing, ordering and consenting to the participation of subordinate employees in the conspiracy."

On December 8, 2010, the European Commission announced it had fined six of the LCD companies involved in a total of €648 million (Samsung Electronics received full immunity under the commission"s 2002 Leniency Notice) – LG Display, AU Optronics, Chimei, Chunghwa Picture and HannStar Display Corporation.

On July 3, 2012, a U.S. federal jury ruled that the remaining defendant, Toshiba Corporation, which denied any wrongdoing, participated in the conspiracy to fix prices of TFT-LCDs and returned a verdict in favor of the plaintiff class. Following the trial, Toshiba agreed to resolve the case by paying the class $30 million.

On March 29, 2013, Judge Susan Illston issued final approval of the settlements agreements totaling $1.1 billion for the indirect purchaser’ class. The settling companies also agreed to establish antitrust compliance programs and to help prosecute other defendants, and cooperate with the Justice Department"s continuing investigation.

In the legal profession, information is the key to success. You have to know what’s happening with clients, competitors, practice areas, and industries. Law360 provides the intelligence you need to remain an expert and beat the competition.

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The United States of America and CHUNGHWA PICTURE TUBES, LTD., ("defendant"), a corporation organized and existing under the laws of Taiwan, Republic of China, hereby enter into the following Plea Agreement pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure ("Fed. R. Crim. P."): RIGHTS OF DEFENDANT The defendant understands its rights: (a)to be represented by an attorney;

(c)as a corporation organized and existing under the laws of Taiwan, Republic of China, to decline to accept service of the Summons in this case, and to contest the jurisdiction of the United States to prosecute this case against it in the United States District Court for the Northern District of California;

(e)to have a trial by jury, at which it would be presumed not guilty of the charge and the United States would have to prove every essential element of the charged offense beyond a reasonable doubt for it to be found guilty;

AND WAIVE CERTAIN RIGHTS The defendant knowingly and voluntarily waives the rights set out in Paragraph 1(b)-(g) above, including all jurisdictional defenses to the prosecution of this case, and agrees voluntarily to consent to the jurisdiction of the United States to prosecute this case against it in the United States District Court for the Northern District of California. The defendant also knowingly and voluntarily waives the right to file any appeal, any collateral attack, or any other writ or motion, including but not limited to an appeal under 18 U.S.C.§ 3742, that challenges the sentence imposed by the Court if that sentence is consistent with or below the recommended sentence in Paragraph 8 of this Plea Agreement, regardless of how the sentence is determined by the Court. This agreement does not affect the rights or obligations of the United States as set forth in 18 U.S.C. § 3742(b) and (c). Nothing in this paragraph, however, shall act as a bar to the defendant perfecting any legal remedies it may otherwise have on appeal or collateral attack respecting claims of ineffective assistance of counsel or prosecutorial misconduct. Pursuant to Fed. R. Crim. P. 7(b), the defendant will waive indictment and plead guilty at arraignment to a one-count Information to be filed in the United States District Court for the Northern District of California. The Information will charge the defendant with participating in a conspiracy to suppress and eliminate competition by fixing the prices of thin-film transistor liquid crystal display panels ("TFT-LCD") sold in the United States and elsewhere, from on or about September 14, 2001, to on or about December 1, 2006, in violation of the Sherman Antitrust Act, 15 U.S.C. § 1.

The defendant, pursuant to the terms of this Plea Agreement, will plead guilty to the criminal charge described in Paragraph 2 above and will make a factual admission of guilt to the Court in accordance with Fed. R. Crim. P. 11, as set forth in Paragraph 4 below. FACTUAL BASIS FOR OFFENSE CHARGED Had this case gone to trial, the United States would have presented evidence sufficient to prove the following facts: (a)For purposes of this Plea Agreement, the "relevant period" is that period from on or about September 14, 2001, to on or about December 1, 2006. During the relevant period, Chunghwa Picture Tubes, Ltd. ("CPT"), a corporation organized and existing under the laws of Taiwan, Republic of China, sold TFT-LCD into various markets, including the U.S. The defendant has its headquarters and principal place of business in Taoyuan, Taiwan, Republic of China. During the relevant period, the defendant was a producer of TFT-LCD, was engaged in the sale of TFT-LCD in the United States and elsewhere, and employed 5,000 or more individuals.

(b)TFT-LCD are glass panels composed of an array of tiny pixels that are electronically manipulated in order to display images. TFT-LCD are manufactured in a broad range of sizes and specifications for use in televisions, notebook computers, desktop monitors, mobile devices and other applications.

(c)During the relevant period, the defendant, through its officers and employees, including high-level personnel of the defendant, participated in a conspiracy among major TFT-LCD producers, the primary purpose of which was to fix the price of TFT-LCD sold in the United States and elsewhere. In furtherance of the conspiracy, the defendant, through its officers and employees, engaged in discussions and attended meetings, including group meetings commonly referred to by the participants as "crystal meetings," with representatives of other major TFT-LCD producers. During these discussions and meetings, agreements were reached to fix the price of TFT-LCD to be sold in the United States and elsewhere.

(d)During the relevant period, TFT-LCD sold by one or more of the conspirator firms, and equipment and supplies necessary to the production and distribution of TFT-LCD, as well as payments for TFT-LCD, traveled in interstate and foreign commerce. The business activities of the defendant and its coconspirators in connection with the production and sale of TFT-LCD affected by this conspiracy were within the flow of, and substantially affected, interstate and foreign trade and commerce.

(e)Acts in furtherance of this conspiracy were carried out within the Northern District of California. TFT-LCD affected by this conspiracy was sold by one or more of the conspirators to customers in this District. POSSIBLE MAXIMUM SENTENCE The defendant understands that the statutory maximum penalty that may be imposed against it upon conviction for a violation of Section One of the Sherman Antitrust Act is a fine in an amount equal to the greatest of: (a)$100 million (15 U.S.C. § 1);

In addition, the defendant understands that: (a)pursuant to 18 U.S.C. § 3561(c)(1), the Court may impose a term of probation of at least one year, but not more than five years;

(b) pursuant to § 8B1.1 of the United States Sentencing Guidelines ("U.S.S.G.," "Sentencing Guidelines," or "Guidelines") or 18 U.S.C. § 3563(b)(2) or 3663(a)(3), the Court may order it to pay restitution to the victims of the offense; and

(c)pursuant to 18 U.S.C. § 3013(a)(2)(B), the Court is required to order the defendant to pay a $400 special assessment upon conviction for the charged crime. SENTENCING GUIDELINES The defendant understands that the Sentencing Guidelines are advisory, not mandatory, but that the Court must consider the Guidelines in effect on the day of sentencing, along with the other factors set forth in 18 U.S.C. § 3553(a), in determining and imposing sentence. The defendant understands that the Guidelines determinations will be made by the Court by a preponderance-of-the-evidence standard. The defendant understands that, although the Court is not ultimately bound to impose a sentence within the applicable Guidelines range, its sentence must be reasonable based upon consideration of all relevant sentencing factors set forth in 18 U.S.C. § 3553(a).

SENTENCING AGREEMENT Pursuant to Fed. R. Crim. P. 11(c)(1)(C),the United States and the defendant agree that the appropriate disposition of this case is, and agree to recommend jointly that the Court impose, a sentence requiring the defendant to pay to the United States a criminal fine of $65 million, payable in installments as set forth below with interest accruing under 18 U.S.C. § 3612(f)(1)-(2) ("the recommended sentence"). The parties agree that there exists no aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the U.S. Sentencing Commission in formulating the Sentencing Guidelines justifying a departure pursuant to U.S.S.G. § 5K2.0. The parties agree not to seek or support any sentence outside of the Guidelines range nor any Guidelines adjustment for any reason that is not set forth in this Plea Agreement. The parties further agree that the recommended sentence set forth in this Plea Agreement is reasonable. (a)The United States and the defendant agree to recommend, in the interest of justice pursuant to 18 U.S.C. § 3572(d)(1) and U.S.S.G. § 8C3.2(b), that the fine be paid in the following installments: within thirty (30) days of imposition of the sentence -- $11 million (plus any accrued interest); at the one-year anniversary of imposition of sentence ("anniversary") -- $11 million (plus any accrued interest); at the two-year anniversary -- $11 million (plus any accrued interest); at the three-year anniversary -- $11 million (plus any accrued interest); at the four-year anniversary -- $11 million (plus any accrued interest); and at the five-year anniversary -- $10 million (plus any accrued interest); provided, however, that the defendant shall have the option at any time before the five-year anniversary of prepaying the remaining balance (plus any accrued interest) then owing on the fine.

(b)The defendant understands that the Court will order it to pay a $400 special assessment, pursuant to 18 U.S.C. § 3013(a)(2)(B), in addition to any fine imposed.

(c) Both parties will recommend that no term of probation be imposed, but the defendant understands that the Court"s denial of this request will not void this Plea Agreement.

(d)The United States and the defendant jointly submit that this Plea Agreement, together with the record that will be created by the United States and the defendant at the plea and sentencing hearings, and the further disclosure described in Paragraph 10, will provide sufficient information concerning the defendant, the crime charged in this case, and the defendant"s role in the crime to enable the meaningful exercise of sentencing authority by the Court under 18 U.S.C. § 3553. The United States and the defendant agree to request jointly that the Court accept the defendant"s guilty plea and impose sentence on an expedited schedule as early as the date of arraignment, based upon the record provided by the defendant and the United States, under the provisions of Fed. R. Crim. P. 32(c)(1)(A)(ii), U.S.S.G. § 6A1.1, and Rule 32-1(b) of the U.S.D.C. N.D. California Criminal Local Rules. The Court"s denial of the request to impose sentence on an expedited schedule will not void this Plea Agreement.

The United States and the defendant agree that the applicable Guidelines fine range exceeds the fine contained in the recommended sentence set out in Paragraph 8 above. Subject to the full and continuing cooperation of the defendant, as described in Paragraph 13 of this Plea Agreement, and prior to sentencing in this case, the United States agrees that it will make a motion, pursuant to U.S.S.G. § 8C4.1, for a downward departure from the Guidelines fine range and will request that the Court impose the recommended sentence set out in Paragraph 8 of this Plea Agreement because of the defendant"s substantial assistance in the government"s investigation and prosecutions of violations of federal criminal law in the TFT-LCD industry.

Subject to the ongoing, full, and truthful cooperation of the defendant described in Paragraph 13 of this Plea Agreement, and before sentencing in the case, the United States will fully advise the Court and the Probation Office of the fact, manner, and extent of the defendant"s cooperation and its commitment to prospective cooperation with the United States" investigation and prosecutions, all material facts relating to the defendant"s involvement in the charged offense, and all other relevant conduct.

The United States and the defendant understand that the Court retains complete discretion to accept or reject the recommended sentence provided for in Paragraph 8 of this Plea Agreement. (a) If the Court does not accept the recommended sentence, the United States and the defendant agree that this Plea Agreement, except for Paragraph 11(b) below, shall be rendered void.

(b)If the Court does not accept the recommended sentence, the defendant will be free to withdraw its guilty plea (Fed. R. Crim. P. 11(c)(5) and (d)). If the defendant withdraws its plea of guilty, this Plea Agreement, the guilty plea, and any statement made in the course of any proceedings under Fed. R. Crim. P. 11 regarding the guilty plea or this Plea Agreement or made in the course of plea discussions with an attorney for the government shall not be admissible against the defendant in any criminal or civil proceeding, except as otherwise provided in Fed. R. Evid. 410. In addition, the defendant agrees that, if it withdraws its guilty plea pursuant to this subparagraph of the Plea Agreement, the statute of limitations period for any offense referred to in Paragraph 15 of this Plea Agreement will be tolled for the period between the date of the signing of the Plea Agreement and the date the defendant withdrew its guilty plea or for a period of sixty (60) days after the date of the signing of the Plea Agreement, whichever period is greater.

In light of the civil class action cases filed against the defendant, including In re TFT-LCD (Flat Panel) Antitrust Litigation, No. M:07-1827 SI, MDL No. 1827, in the United States District Court, Northern District of California, which potentially provide for a recovery of a multiple of actual damages, the United States agrees that it will not seek a restitution order for the offense charged in the Information. DEFENDANT"S COOPERATION The defendant and its subsidiaries engaged in the sale or production of TFT-LCD (collectively, "related entities") will cooperate fully and truthfully with the United States in the prosecution of this case, the conduct of the current federal investigation of violations of federal antitrust and related criminal laws involving the manufacture or sale of TFT-LCD in the United States and elsewhere, any other federal investigations resulting therefrom, and any litigation or other proceedings arising or resulting from any such investigation to which the United States is a party ("Federal Proceeding"). The ongoing, full, and truthful cooperation of the defendant shall include, but not be limited to: (a)producing to the United States all non-privileged documents, information, and other materials, wherever located, in the possession, custody, or control of the defendant or any of its related entities, requested by the United States in connection with any Federal Proceeding; and

(b) using its best efforts to secure the ongoing, full, and truthful cooperation, as defined in Paragraph 14 of this Plea Agreement, of the current and former directors, officers, and employees of the defendant or any of its related entities, as may be requested by the United States - but excluding Chieng-Hon "Frank" Lin, Chieng-Yuan (C.Y.) Lin, Chih-Chun (C.C.) Liu, Hsueh-Lung "Brian" Lee, Wen-Chun "Tony" Cheng, Chung-Cheng "Alex" Yeh, and Ling-Yuan "Yvonne" Yun - including making these persons available in the United States and at other mutually agreed-upon locations, at the defendant"s expense, for interviews and the provision of testimony in grand jury, trial, and other judicial proceedings in connection with any Federal Proceeding.

The ongoing, full, and truthful cooperation of each person described in Paragraph 13(b) above will be subject to the procedures and protections of this paragraph, and shall include, but not be limited to: (a)producing in the United States and at other mutually agreed-upon locations all non-privileged documents, including claimed personal documents, and other materials,wherever located, requested by attorneys and agents of the United States;

(b)making himself or herself available for interviews in the United States and at other mutually agreed-upon locations, not at the expense of the United States, upon the request of attorneys and agents of the United States;

(c)responding fully and truthfully to all inquiries of the United States in connection with any Federal Proceeding, without falsely implicating any person or intentionally withholding any information, subject to the penalties of making false statements (18 U.S.C. § 1001) and obstruction of justice (18 U.S.C. § 1503, et seq.);

(d)otherwise voluntarily providing the United States with any non-privileged material or information not requested in (a) - (c) of this paragraph that he or she may have that is related to any Federal Proceeding;

(e)when called upon to do so by the United States in connection with any Federal Proceeding, testifying in grand jury, trial, and other judicial proceedings in the United States fully, truthfully, and under oath, subject to the penalties of perjury (18 U.S.C. § 1621), making false statements or declarations in grand jury or court proceedings (18 U.S.C. § 1623), contempt (18 U.S.C. §§ 401-402), and obstruction of justice (18 U.S.C. § 1503, et seq.); and

(f)agreeing that, if the agreement not to prosecute him or her in this Plea Agreement is rendered void under Paragraph 16(c), the statute of limitations period for any Relevant Offense as defined in Paragraph 16(a) will be tolled as to him or her for the period between the date of the signing of this Plea Agreement and six (6) months after the date that the United States gave notice of its intent to void its obligations to that person under the Plea Agreement.

GOVERNMENT"S AGREEMENT Upon acceptance of the guilty plea called for by this Plea Agreement and the imposition of the recommended sentence, and subject to the cooperation requirements of Paragraph 13 of this Plea Agreement, the United States agrees that it will not bring further criminal charges against the defendant or any of its related entities for any act or offense committed before the date of this Plea Agreement that was undertaken in furtherance of an antitrust conspiracy involving the manufacture or sale of TFT-LCD in the United States and elsewhere, or undertaken in connection with any investigation of such a conspiracy. The nonprosecution terms of this paragraph do not apply to civil matters of any kind, to any violation of the federal tax or securities laws, or to any crime of violence.

The United States agrees to the following: (a)Upon the Court"s acceptance of the guilty plea called for by this Plea Agreement and the imposition of the recommended sentence and subject to the exceptions noted in Paragraph 16(c), the United States will not bring criminal charges against any current or former director, officer, or employee of the defendant or its related entities for any act or offense committed before the date of this Plea Agreement and while that person was acting as a director, officer, or employee of the defendant or its related entities that was undertaken in furtherance of an antitrust conspiracy involving the manufacture or sale of TFT-LCD in the United States and elsewhere, or undertaken in connection with any investigation of such a conspiracy ("Relevant Offense"), except that the protections granted in this paragraph shall not apply to Chieng-Hon "Frank" Lin, Chieng-Yuan (C.Y.) Lin, Chih-Chun (C.C.) Liu, Hsueh-Lung "Brian" Lee, Wen-Chun "Tony" Cheng, Chung-Cheng "Alex" Yeh, and Ling-Yuan "Yvonne" Yun;

(b)Should the United States determine that any current or former director, officer, or employee of the defendant or its related entities may have information relevant to any Federal Proceeding, the United States may request that person"s cooperation under the terms of this Plea Agreement by written request delivered to counsel for the individual (with a copy to the undersigned counsel for the defendant) or, if the individual is not known by the United States to be represented, to the undersigned counsel for the defendant;

(c)If any person requested to provide cooperation under Paragraph 16(b) fails to comply with his or her obligations under Paragraph 14, then the terms of this Plea Agreement as they pertain to that person, and the agreement not to prosecute that person granted in this Plea Agreement, shall be rendered void;

(d)Except as provided in Paragraph 16(e), information provided by a person described in Paragraph 16(b) to the United States under the terms of this Plea Agreement pertaining to any Relevant Offense, or any information directly or indirectly derived from that information, may not be used against that person in a criminal case, except in a prosecution for perjury (18 U.S.C. § 1621), making a false statement or declaration (18 U.S.C. §§ 1001, 1623), or obstruction of justice (18 U.S.C. § 1503, et seq.);

(e)If any person who provides information to the United States under this Plea Agreement fails to comply fully with his or her obligations under Paragraph 14 of this Plea Agreement, the agreement in Paragraph 16(d) not to use that information or any information directly or indirectly derived from it against that person in a criminal case shall be rendered void;

(f)The nonprosecution terms of this paragraph do not apply to civil matters of any kind, to any violation of the federal tax or securities laws, or to any crime of violence; and

(g)Documents provided under Paragraphs 13(a) and 14(a) shall be deemed responsive to outstanding grand jury subpoenas issued to the defendant or any of its related entities.

The United States agrees that when any person travels to the United States for interviews, grand jury appearances, or court appearances pursuant to this Plea Agreement, or for meetings with counsel in preparation therefor, the United States will take no action, based upon any Relevant Offense, to subject such person to arrest, detention, or service of process, or to prevent such person from departing the United States. This paragraph does not apply to an individual"s commission of perjury (18 U.S.C. § 1621), making false statements (18 U.S.C. § 1001), making false statements or declarations in grand jury or court proceedings (18 U.S.C. § 1623), obstruction of justice (18 U.S.C. § 1503, et seq.), or contempt (18 U.S.C. §§ 401-402) in connection with any testimony or information provided or requested in any Federal Proceeding.

The defendant understands that it may be subject to administrative action by federal or state agencies other than the United States Department of Justice, Antitrust Division, based upon the conviction resulting from this Plea Agreement, and that this Plea Agreement in no way controls whatever action, if any, other agencies may take. However, the United States agrees that, if requested, it will advise the appropriate officials of any governmental agency considering such administrative action of the fact, manner, and extent of the cooperation of the defendant and its related entities as a matter for that agency to consider before determining what administrative action, if any, to take. REPRESENTATION BY COUNSEL The defendant has been represented by counsel and is fully satisfied that its attorneys have provided competent legal representation. The defendant has thoroughly reviewed this Plea Agreement and acknowledges that counsel has advised it of the nature of the charge, any possible defenses to the charge, and the nature and range of possible sentences.VOLUNTARY PLEA The defendant"s decision to enter into this Plea Agreement and to tender a plea of guilty is freely and voluntarily made and is not the result of force, threats, assurances, promises, or representations other than the representations contained in this Plea Agreement. The United States has made no promises or representations to the defendant as to whether the Court will accept or reject the recommendations contained within this Plea Agreement. VIOLATION OF PLEA AGREEMENT The defendant agrees that, should the United States determine in good faith, during the period that any Federal Proceeding is pending, that the defendant or any of its related entities have failed to provide full and truthful cooperation, as described in Paragraph 13 of this Plea Agreement, or have otherwise violated any provision of this Plea Agreement, the United States will notify counsel for the defendant in writing by personal or overnight delivery or facsimile transmission, and may also notify counsel by telephone, of its intention to void any of its obligations under this Plea Agreement (except its obligations under this paragraph), and the defendant and its related entities shall be subject to prosecution for any federal crime of which the United States has knowledge, including, but not limited to, the substantive offenses relating to the investigation resulting in this Plea Agreement. The defendant may seek Court review of any determination made by the United States under this paragraph to void any of its obligations under the Plea Agreement. The defendant and its related entities agree that, in the event that the United States is released from its obligations under this Plea Agreement and brings criminal charges against the defendant or its related entities for any offense referred to in Paragraph 15 of this Plea Agreement, the statute of limitations period for such offense will be tolled for the period between the date of the signing of this Plea Agreement and six (6) months after the date the United States gave notice of its intent to void its obligations under this Plea Agreement.

The defendant understands and agrees that in any further prosecution of it or its related entities resulting from the release of the United States from its obligations under this Plea Agreement, because of the defendant"s or its related entities" violation of the Plea Agreement, any documents, statements, information, testimony, or evidence provided by it or its related entities, or current or former directors, officers, or employees of it or its related entities to attorneys or agents of the United States, federal grand juries, or courts, and any leads derived therefrom, may be used against it or its related entities in any such further prosecution. In addition, the defendant unconditionally waives its right to challenge the use of such evidence in any such further prosecution, notwithstanding the protections of Fed. R. Evid. 410. ENTIRETY OF AGREEMENT This Plea Agreement constitutes the entire agreement between the United States and the defendant concerning the disposition of the criminal charge in this case. This Plea Agreement cannot be modified except in writing, signed by the United States and the defendant.

The undersigned is authorized to enter this Plea Agreement on behalf of the defendant as evidenced by the Resolution of the Board of Directors of the defendant attached to, and incorporated by reference in, this Plea Agreement.

The undersigned attorneys for the United States have been authorized by the Attorney General of the United States to enter this Plea Agreement on behalf of the United States.

A facsimile signature shall be deemed an original signature for the purpose of executing this Plea Agreement. Multiple signature pages are authorized for the purpose of executing this Plea Agreement.AGREED

Currently before the Court is defendants" joint motion to dismiss Proview"s Second Amended Complaint. Pursuant to Civil Local Rule 7-1(b), the Court finds these matters suitable for disposition without oral argument and therefore VACATES the hearings currently scheduled for March 22, 2013. Having considered the moving papers and the arguments of the parties, and for good cause appearing, the Court hereby GRANTS in part and DENIES in part Defendants" motion. Docket No. 7607.

Plaintiffs include four entities: Proview Technology Inc. ("PTI"), a California corporation; and three of its affiliated Original Equipment Manufacturers ("OEMs") in Taiwan and China, Proview Technology Co., Ltd., Proview Group Limited, and Proview Optronics Co., Ltd. (collectively, "Proview OEMs"). PTI sells TFT-LCD products such as computer monitors and televisions to retailers in the United States. PTI receives the products from its affiliated OEMS through a process by which PTI instructs the Proview OEMs to purchase LCD Panels for delivery in Asia and manufacture into LCD products, which PTI purchases and imports into the United States. Second Amended Complaint ("SAC"), ¶¶ 14-15, 132-33. Plaintiffs filed this action on July 20, 2012, seeking to recover damages for a "a long-running conspiracy by manufacturers of liquid crystal display panels ("LCD Panels")." Complaint at ¶1. On October 17, 2012, Plaintiffs amended the complaint as of right, and on January 14, 2013, they further amended the complaint after seeking and receiving Defendants" consent. This Second Amended Complaint alleges that during the conspiracy period (January 1, 1996-December 11, 2006), plaintiffs directly and indirectly purchased LCD products from defendants and their co-conspirators. SAC, ¶ 2. As a result of defendants" and their co-conspirators" conspiracy, the complaint alleges, plaintiffs paid artificially-inflated prices for LCD panels. Id. Plaintiffs seek relief under the Sherman Act, the California Cartwright Act and Unfair Competition Laws, and an unjust enrichment theory. Id. at 160-78. Defendants move to dismiss Plaintiffs" claims based on a number of different theories, as detailed below.

Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if it fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This "facial plausibility" standard requires the plaintiff to allege facts that add up to "more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). While courts do not require "heightened fact pleading of specifics," a plaintiff must allege facts sufficient to "raise a right to relief above the speculative level." Twombly, 550 U.S. at 544, 555.

In deciding whether the plaintiff has stated a claim upon which relief can be granted, the court must assume that the plaintiff"s allegations are true and must draw all reasonable inferences in the plaintiff"s favor. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, the court is not required to accept as true "allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008).

If the court dismisses the complaint, it must then decide whether to grant leave to amend. The Ninth Circuit has "repeatedly held that a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (citations and internal quotation marks omitted).

Defendants raise numerous challenges to Plaintiffs" SAC. In their Opposition, Plaintiffs do not oppose dismissal of certain claims alleged in the SAC, and thus, only four issues raised in the motion remain to be decided.1 First, Defendants argue that PTI, as an indirect purchaser, lacks standing to bring claims under the Sherman Act. Second, Defendants assert that the Proview OEMs, as foreign companies, are barred from bringing Sherman Act claims by the Foreign Trade Antitrust Improvements Act ("FTAIA"). Third, Defendants argue that PTI"s Cartwright Act claim does not comport with due process because no purchases were made within California. Lastly, Defendants argue that Plaintiffs" state claims are untimely, and their tolling theories do not cure the untimeliness.

Defendants argue that PTI lacks standing to pursue its Sherman Act claim because it indirectly purchased LCD products from the Proview OEMs and is thus barred by the "direct purchaser" rule in Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977). Defendants allege that PTI cannot invoke the ownership/control exception to the Illinois Brick bar against standing for indirect purchasers, because it does not sufficiently allege "control" of the PTI OEMs by PTI. Defendants also allege that even if PTI were a direct purchaser, it never opted out of the DPP Class and therefore its claims have been extinguished by that action. Plaintiffs argue that PTI exercises sufficient control over the Proview OEMs to qualify for the ownership/control exception, and that Plaintiffs have sufficiently alleged this control in the SAC. See SAC, ¶¶ 14-15, 118, 132.

The ownership and control exception to the Illinois Brick bar against standing for indirect purchasers encompasses relationships involving "such functional economic or other unity between the direct purchaser and either the defendant or the indirect purchaser, that there effectively has been only one sale." Sun Microsystems, Inc. v. Hynix Semiconductor Inc., et al, 608 F.Supp.2d 1166, 1180 (N.D. Cal. 2009); see, e.g., Jewish Hosp. Ass"n v. Stewart Mech. Enters., 628 F.2d 971, 975 (6th Cir.1980); Royal Printing Co. v. Kimberly-Clark Corp., 621 F.2d 323, 326-27 (9th Cir.1980); In re Mercedes-Benz Anti-Trust Litig., 157 F.Supp.2d 355, 355 (D.N.J.2001) ("[T]he rationale of Illinois Brick"s bar to indirect purchaser suits does not apply where the supposed intermediary is controlled by one or the other of the parties"). The Ninth Circuit recently addressed the ownership and control exception in the context of the relationship between direct purchasers and defendants/co-conspirators. In Re ATM Fee Antitrust Litigation, 686 F.3d 741, 756-58 (9th Cir. 2012). The Court explained that "control" means "to exercise restraint or direction over; dominate, regulate, or command," United States v. Bennett, 621 F.2d 1131, 1139 n.2 (9th Cir. 2010) (quoting Webster"s College Dictionary 297 (Random House 1991)), or to have "the power or authority to guide or manage," id. (quoting Webster"s New Collegiate Dictionary 285 (9th ed. 1983)). ATM Fee, 686 F.3d at 757. The Ninth Circuit further described the "power or authority to guide or manage" that is required to demonstrate "the type of control necessary to meet the exception to Illinois Brick." Id. at 758. Paradigmatic examples of "situations where an ownership or control relationship between an indirect purchaser and a direct purchaser" may exist include parent-subsidiary relationships or one company"s stock ownership of another. Jewish Hosp. Ass"n, 628 F.2d at 975.

The Court finds that Plaintiffs" SAC fails to adequately allege that its claims fall within the control exception to Illinois Brick. Although Plaintiffs allege — conclusorily — that the Proview OEMs act as agents for PTI and that PTI has "control of" the Proview OEMs, the SAC fails to allege sufficient facts to support or explain the type of control exercised by PTI or to demonstrate that it is adequate to meet the exception. That PTI "instructed its affiliated OEMs . . . to purchase LCD panels" does not, by itself, demonstrate that PTI controlled the Proview OEMs. Accordingly, the Court GRANTS Defendants" motion to dismiss PTI"s Sherman Act claims and gives Plaintiffs leave to amend their complaint.2

Defendants argue that as foreign entities with no nexus to the U.S., the Proview OEMs made their direct purchases entirely in foreign commerce and are therefore barred by the FTAIA from bringing Sherman Act claims. Defendants argue that the Proview OEMs have failed to adequately plead any exception to FTAIA"s bar on foreign purchases, and that an amendment will not cure their claims in light of the fact that they did not opt out of the DPP Action. The Proview OEMs argue that the FTAIA does not bar its Sherman Act claims for "U.S.-related commerce not already included in PTI"s claims" because the alleged conspiracy "deliberately targeted the U.S. Market and involved both domestic and international conduct" and because the purchases were "based on contract terms and pricing negotiated by PTI specifically for U.S. bound LCD products." Opposition at 6. The Proview Plaintiffs largely rely on this Court"s orders in the Dell and Motorola cases. The Proview Plaintiffs argue that their claims are based on panel purchases which are "nearly identical" to the purchases by Dell and Motorola"s foreign affiliates, and that the Court should find here, as it did there, that the SAC adequately pleads an exception to the FTAIA.

The Court concludes that the Proview SAC does not allege enough facts to adequately plead an exception to the FTAIA. In both the Dell and Motorola cases, plaintiffs had alleged that a global price for all TFT-LCD products purchased from defendants had been negotiated in the U.S. at Dell"s and at Motorola"s U.S. offices. The Providew Plaintiffs" SAC does not allege similar facts. At most, the SAC alleges that "[t]he prices Plaintiffs used in purchase orders placed with Defendants were based on price and quantity determinations based on U.S. Negotiations." SAC, ¶¶ 136. The Court does not find this clear enough or specific enough to allege a domestic effect to qualify for an exception to the FTAIA. The lack of specificity is exacerbated by the SAC"s allegations that Defendants met with the Proview OEMs" representatives in Asia to negotiate contract terms and pricing. Id. at ¶ 134. Further, unlike the Dell and Motorola complaints, the SAC does not identify whether any "price and quantity determinations based on U.S. Negotiations" were binding on the Proview OEMs. Accordingly, the Court concludes that Plaintiffs have not alleged sufficient facts to bring the Proview OEMs" Sherman Act claims within the domestic injury exception to the FTAIA and GRANTS Defendants" motion to dismiss the Proview OEMs" Sherman Act claims on this ground, with leave to amend the complaint.

Defendants seek to dismiss Plaintiffs" state law claims on the grounds that they are time-barred and are barred by due process concerns. Because Plaintiffs concede that the Proview OEMs" state law claims are not tolled by class action tolling, they are untimely; only PTI"s state law claims remain to be decided.

Defendants argue that PTI"s Cartwright Act and UCL claims are untimely. Plaintiffs filed suit on July 20, 2012, some 5-1/2 years after the DOJ"s December 11, 2006 announcement of its investigation into the conspiracy. Because these claims have four-year statutes of limitations, Defendants contend that Plaintiffs" claims are untimely unless tolled; and they challenge the factual adequacy of the allegations supporting the various tolling theories alleged in the SAC. Plaintiffs conceded that certain claims were untimely and that certain tolling theories were inapplicable,3 but argue that PTI"s state law claims were tolled to the extent identified in this Court"s Order involving ViewSonic. See Docket No. 7255. In that Order, the Court found that ViewSonic, a reseller, could rely on the filings of Hee v. LG Philips LCD Co. Ltd. and Selfridge v. LG Philips Co., Ltd., to toll its California claims, but the tolling was limited to the defendants, products, and conspiracy periods identified in the Hee, Selfridge, and IPP-CAC actions. PTI contends that application of the same tolling principles to its complaint renders its claims timely.

The Court concludes that like ViewSonic, PTI may rely on Hee and Selfridge to toll its state claims, but the tolling will similarly be limited to the defendants, products, and conspiracy periods identified in Hee, Selfridge, and the IPP-CAC. Accordingly, the Court DENIES Defendants" motion to dismiss PTI"s state law claims on the grounds that they are barred by the statute of limitations.

Defendants argue that PTI has failed to make sufficiently individualized allegations of each Defendants" alleged conspiratorial activity, in light of the Ninth Circuit"s recent decision in AT&T Mobility LLC v. AU Optronics Corp., and its order directing that due process must be analyzed on an individualized, defendant-by-defendant basis. No. 11-16188, 2013 WL 540859 (9th Cir. Feb. 14, 2013). The Court agrees.

In AT&T Mobility, the Ninth Circuit held, "the Cartwright Act can be lawfully applied without violating a defendant"s due process rights when more than a de minimis amount of that defendant"s alleged conspiratorial activity leading to the sale of price-fixed goods to plaintiffs took place in California." AT&T Mobility LLC, at *6. The Court remanded to this Court to make an individual assessment "with respect to each Defendant as to whether Plaintiffs have alleged sufficient conspiratorial conduct within California, that is not `slight and casual," such that the application of California law to that Defendant is `neither arbitrary nor fundamentally unfair."" Id. at *7 (emphasis added). Based on the Ninth Circuit"s holding, the Court concludes that Plaintiffs must adequately allege conspiratorial conduct of each Defendant in California. Accordingly, because the SAC fails to do this, the Court GRANTS Defendants" motion to dismiss PTI"s Cartwright Act claims on due process grounds, and the Court gives Plaintiffs leave to amend the complaint.

Defendants challenged Plaintiff"s unjust enrichment claims for a number of reasons, including its timeliness. Plaintiffs concede that any claim for unjust enrichment is time-barred. See Opposition at 2, n.1. Accordingly, the Court GRANTS Defendants" motion to dismiss Plaintiffs" unjust enrichment claim.

For the foregoing reasons and for good cause shown, the Court hereby GRANTS in part and DENIES in part Defendants" joint motion. Any amended complaint must be filed by April 5, 2013. Docket No. 7607.

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On March 16, 2015, AU Optronics Corporation America Inc. (AU Optronics) and Motorola Mobility LLC separately asked the U.S. Supreme Court to clarify the Foreign Trade Antitrust Improvements Act (FTAIA) and the extent to which its language allows foreign conduct to be brought within the scope of the Sherman Act.  The requests for review follow from potentially conflicting holdings from the Seventh and Ninth Circuits in cases that stem from distinct interpretations of the same provisions in the FTAIA and involve the very same conduct – AU Optronics’ and its co-conspirators’ agreement overseas to fix the prices of liquid crystal display (LCD) panels.  The cases have different procedural foundations in that the Ninth Circuit case is a criminal suit brought by the Department of Justice (DOJ), while the Seventh Circuit case is a civil matter in which private parties are seeking damages.

In Hsiung,[i] AU Optronics appeals the Ninth Circuit’s holding that the Sherman Act via the FTAIA can support criminal charges against foreign cartel conduct.  In that case, the court had affirmed AU Optronics’ conviction in July 2014 and rendered an amended opinion on January 30, 2015.  Meanwhile, Motorola Mobility appeals the Seventh Circuit’s finding in Motorola Mobility[ii] that a civil price-fixing claim against the same cartel could not be supported under the same provisions of the FTAIA.  The Seventh Circuit decided the case on November 26, 2014 (after vacating a previous opinion from March 2014) and later amended its opinion on January 12, 2015.  The companies believe that these interpretations of the FTAIA are conflicting and, therefore, ripe for Supreme Court review.

The FTAIA was adopted to clarify the enforcement scope of U.S. federal antitrust laws as applied to anticompetitive conduct that occurs abroad.  Since its enactment, however, lower courts have interpreted the FTAIA differently, which has led to conflicting decisions and legal uncertainty.  Under the FTAIA, all foreign conduct is placed outside the scope of the Sherman Act, unless (1) the alleged conduct involves import commerce (import commerce exemption)  or (2) it has a “direct, substantial, and reasonably foreseeable effect” on U.S. commerce and the criminal charge or civil claim “arises from” that effect (domestic effects exception).

The circuit courts interpreted certain language in these provisions differently, specifically “import commerce” and “direct effect,” and when such effect “gives rise to a Sherman Act claim.”  In Hsiung, the Ninth Circuit considered import commerce to be any conduct affecting an import market, which means that it need not be shown that a foreign defendant directly imported goods himself into the U.S.  As to the domestic effects exception, the Ninth Circuit further explained that foreign conduct has a direct effect on U.S. commerce where the conduct “follows as an immediate consequence of the defendant[s’] activity.”  According to the court, AU Optronics’ conduct had a direct effect on U.S. commerce that gave rise to a Sherman Act claim because the price-fixed goods manufactured abroad were a significant component of [...]

SAN FRANCISCO (Reuters) - Toshiba Corp, LG Electronics Incand AU Optronics Corphave agreed to pay a combined $571 million (368.1 million pounds) to settle a lawsuit over price fixing in the liquid crystal display panel market, according to an attorney for the plaintiffs.

Joseph Alioto, a San Francisco attorney who was co-lead counsel for a class of consumers suing the companies, said the amount includes $27.5 million in civil penalties for eight state governments. Seven other LCD manufacturers had reached an earlier settlement for $538.5 million, which was approved on Wednesday by U.S. District Judge Susan Illston.

The two settlements mean total recovery for consumers nears $1.1 billion, Alioto said. Representatives for AUO, Toshiba and LG could not immediately be reached on Wednesday.

The class action alleged a detailed conspiracy from 1996 through 2006 to fix LCD prices, resulting in higher prices for buyers of televisions, laptops and other electronics. Several companies also pleaded guilty to separate criminal charges and paid fines.

Alioto declined to comment on the specific amounts AUO, Toshiba and LG agreed to pay, but said a court document set to be filed on Thursday would outline those figures. Illston will also have to approve the deal.

Wang v. Chinese Daily News, Case No. CV-04-1498 CBM, U.S. District Court for the Central District of California. Served as Lead Counsel in a jury trial representing a class of hourly newspaper employees involving claims of unpaid overtime and other wage and hour violations. After jury and bench trial, obtained a judgment in favor of his clients for more than $5,200,000 in 2015. Opinion at (Wang v. Chinese Daily News, Inc. (9th Cir. 2010) 623 F.3d 743.).

Diaz v. Grill Concepts Services, Inc., dba Daily Grill, Case No. BC 542720, Los Angeles Superior Court. Served as Lead Counsel in bench trial to recover back wages, interest and waiting time penalties against hotel restaurant under the City of Los Angeles" Airport Hotel Living Wage Ordinance. In January 2017, plaintiffs prevailed on all claims at trial, and received a favorable judgement of $864,756.84. The verdict was approved on appeal. Diaz v. Grill Concepts Services, Inc. (2018) 23 Cal.App.5th 859.

Paige v. State of California, Case No. CV 94-0083 CBM U.S. District Court for the Central District of California. Served as Co-Lead Trial Counsel in the two-month class action trial involving claims against California Highway Patrol alleging discrimination in promotions against Non-White Officers

City of Los Angeles Service Charge Cases, Lead Case BC377050, Los Angeles Superior Court, Judge William Highberger. Class Counsel in five separate actions on behalf of hourly workers against various Century Boulevard hotels alleging violations of the City of Los Angeles Service Charge Ordinance. Defended the constitutionality of the Ordinance on Appeal in the published decision of Garcia v. Four Points Sheraton LAX (2010) 188 Cal. App. 4th 36

Craig, et al. v. Corteva, Inc., et al., Case No. 3:17-cv-07923-JCS, United States District Court for the Northern District of California. Serving as Co-Class Counsel in an action brought on behalf of 207 class members. Preliminary Approval granted in 2021 for $3,900,000.

Class Action v. Major Oil Refinery,United States District Court for the Northern District of California. Served as Co-Lead Counsel in action brought on behalf of Oil Refinery Operators for rest break violations. Matter settled in 2019 for $15,250,000.

Berlanga, et al. v. Equilon Enterprises LLC, et al., Case No. 4:17-cv-00282-MMC, United States District Court for the Northern District of California. Rest break case brought on behalf of Refinery Operators. Matter settled in 2019 for $7,750,000 with 497 class members receiving a check averaging over $11,000.

Clack v. Chevron Corporation, Chevron U.S.A. Inc. dba Chevron Products Company and ChevronTexaco Global Lubricants,Case No. BC649514. Los Angeles Superior Court. Served as Co-Lead Counsel in action brought on behalf of on behalf of approximately 1,500 Oil Refinery Operators for rest break violations. Matter settled in 2020 for $ $17,375,000. It was the largest labor and employment settlement in California in 2020.

Kendig, et al. v. ExxonMobil Oil Corp, et al., Case No. 2:18-cv-9224 MWF (SSx), United States District Court for the Central District of California. Served as Co-Class Counsel in an action brought on behalf of 338 class members. Matter settled in 2020 for $4,391,585.

Buzas v. Phillips 66 Company, Case No. 4:17-cv-00163-YGR, United States District Court for the Northern District of California. Served as Co-Lead Counsel in action brought on behalf of 500 Oil Refinery Operators for rest break violations. Matter settled in 2018 for $5,500,000.

Murphy v. CVS Caremark, BC 464785, Los Angeles Superior Court. Class Counsel in wage and hour class action brought on behalf of more than 70,000 hourly employees. Suit alleged various violations, including the failure to pay employees while subject to employer control during security checks. Matter settled in 2017, prior to trial, for $12,750,000. It was the second largest wage and hour violation settlement obtained in California in the year 2017.

Aguilar v. Flying Foods Group Pacific, Inc., Case No. BC 553539, Los Angeles Superior Court. Lead Counsel in class action of employees with claims of unpaid overtime and other wage and hour violation failures. As Class Counsel, sought damages, restitution and other relief for the Class for the time period from August 1, 2010 to the present. Matter settled in 2018 for $4,150,000. It was the ninth largest labor and employment settlement and among top 20 Class Action settlements obtained in California in the year 2018

Barrientos v. Hilton Los Angeles Airport, Case No. BC403925, Los Angeles Superior Court. The Lawsuit was filed on December 16, 2008, and the alleged class period dated back to December 16, 2004. Parties agreed to resolve the Lawsuit by way of settlement in 2011. Defendants paid $2,500,000.

USW v. ConocoPhillips Company, CV 08-2068 PSG, United States District Court. Class Counsel brought on behalf of refinery operators for on-duty meal periods. Case settled in 2013, prior to trial, for $15,500,000. Published opinion can be found at (United Steel, Paper & Forestry, Rubber, Mfg. Energy v. ConocoPhillips Co. (9th Cir. 2010) 593 F.3d 802.)

Navarro v. Pacifica Hosts Hotels, Inc. (2008), Case No. BC352017, Los Angeles Superior Court. Class Counsel for class of more than 4,000 hourly employees at 19 hot