The Sherman Act’s Criminal Extraterritorial Reach: Unresolved Questions Raised By United States v. AU Optronics Corp

Anthony Biagioli, Mark Popofsky, Aug 30, 2011

Over the last decade, the Department of Justice’s (“DOJ’s”) vigorous criminal antitrust enforcement-driven by amnesty for the first self-reporting company-has led numerous companies and executives to plead guilty. Indeed, over the last decade, no corporate defendant (and only a few individuals) has taken the government to trial in an international criminal antitrust cartel case. Notably, however, one company-AU Optronics, a Taiwanese display maker (“AUO”)-and a number of its executives have elected to fight a cartel prosecution.  United States v. AU Optronics Corp.-scheduled to go to trial in the fall of 2011 in federal court in San Francisco-presents a rare opportunity to litigate unresolved issues respecting the antitrust laws’ applicability to international cartels in the criminal context.

One set of issues involves the territorial reach of the Sherman Act in a criminal setting-in particular, whether a U.S. court has jurisdiction when the government prosecutes “mixed” conduct (part foreign, part domestic) by companies or individuals. This, in turn, raises questions about what the government may need to charge and prove: What must the government specify in an indictment respecting the impact of conduct on U.S. commerce? Is the Sherman Act’s territorial reach “jurisdictional” in the sense that only the judge, and not the jury, must assess whether conduct falls within the statute’s scope? Must the government charge and prove “intent” to

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