Exorcism by Compliance

I think AU Optronics Corp. (AUO) case was the most intriguing competition law case of recent times. As you may recall, Taiwan oriented AUO, maker of liquid crystal display screens used in electronic devices, was ordered to pay $500 million for colluding with rivals to fix prices on the screens. Moreover, AUO Vice Chairman H.B. Chen and former executive Hui Hsiung were sentenced to three years in prison and ordered each to pay a $200,000 fine.

But the most gripping tranch of the decision, at least as for me, is that the sentence on the compliance program. As a part of the punishment, AUO is obliged to retain a compliance monitor and develop an effective antitrust compliance program under the supervision of an independent antitrust attorney for three years. Reasoning of the compliance sentence is even more astounding. Below is that reasoning from sentencing memorandum:

 “AUO was founded by a merger in September 2001, and AUO and its co-conspirators started the TFT-LCD conspiracy that very same month.  So, from its very inception, AUO’s standard operating procedure has been collusion.  AUO has never known any other way of doing business and has never willingly operated lawfully.  
That being the case, one cannot expect AUO to reinvent itself and begin to operate legitimately for the first time in its existence on its own, especially when it maintains to this day that it has done nothing wrong.  A new corporate culture must be created, and AUO has neither the will nor the experience to institute these new business practices on its own.  
More importantly, AUO’s defiant public statements demonstrate that the company has no intention or motivation to do so.  While all of the other corporate conspirators recognized the illegality of their conduct and accepted responsibility for their participation in the illegal scheme, AUO refuses even to acknowledge that its participation in that same scheme is, or should be, illegal.  As a result, there is no reason to assume that its conviction and the imposition of a criminal fine, alone, will cause AUO to cease engaging in collusive practices.”
 
So the DOJ and inherently the Court saw AUO as a demonic (antitrustwise) child and decided to “exorcising” it by a compliance program. Finding it as a very sagacious conduct, I think the TCA could also oblige undertakings to implement such a compliance obligation. This would be especially effective when dealing with recidivist undertakings where imposing fines fail to dissuade. All in all I think we won’t wait long to see EU or a member state adopting such a similar approach and it is known that once EU adopts a method it passes on to Asia Minor rapidly.

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