Reminder: the DOJ Has Criminal Antitrust Enforcement Powers Beyond Price Fixing

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On May 3, the U.S. DOJ announced that an executive of South Korean-based Hyosung Corporation agreed to plead guilty and to serve time in a U.S. prison for obstruction of justice charges in connection with an automated teller machine (ATM) merger investigation conducted by the Antitrust Division, the Department of Justice announced today.

According to a two-count felony charge filed in the U.S. District Court in Washington, D.C., Kyoungwon Pyo, in his role as senior vice president for corporate strategy of Hyosung Corporation, an affiliate of Nautilus Hyosung Holdings Inc. (NHI), altered and directed subordinates to alter numerous existing corporate documents before they were submitted to the Department of Justice and the Federal Trade Commission (FTC) in conjunction with mandatory premerger filings. The department said that Pyo’s actions took place in or about July and August 2008. At the time, the department was investigating Korea-based NHI’s proposed acquisition of Triton Systems of Delaware Inc. NHI abandoned the proposed acquisition of competitor Triton Systems before the Antitrust Division reached a decision determining whether to challenge the transaction.

After receiving the premerger filings, the Antitrust Division opened a civil merger investigation of the proposed acquisition. The department said that in or about August and September 2008, Pyo falsified additional documents in response to a document request from the Antitrust Division with the intention of impairing their integrity and availability for use in an official proceeding. The department said that, among other things, the alterations misrepresented and minimized the competitive impact of the proposed acquisition.

NHI was previously charged with obstruction of justice, which carries a maximum criminal fine for a corporation of $500,000 per count.  In October 2011, NHI pleaded guilty and paid a $200,000 criminal fine for its role in the obstruction of justice charges.  According to Pyo’s plea agreement, which is subject to court approval, Pyo has agreed to serve five months in prison.

Moral of the story: it is vitally important when dealing with the U.S. DOJ to maintain the utmost level of transparency and candor.

 

Published In: Administrative Agency Updates, Antitrust & Trade Regulation Updates, Criminal Law Updates, International Trade Updates, Mergers & Acquisitions Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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