The Use of Expert Witnesses for Penalty Determinations in Criminal Antitrust Cases: A Study of United States v. AU Optronics

July 2014

The 2012 trial in United States v. AU Optronics Corp. set an important precedent for the government’s use of expert testimony to secure increased statutory maximum penalties in criminal antitrust cases. AU Optronicswas the first trial of a corporate defendant in a criminal pricefixing case in over a decade, and it was the first time the government was required to prove to a jury beyond a reasonable doubt the gains or losses resulting from the underlying antitrust violation. With expert testimony necessary to the government’s success in AU Optronics—and the Supreme Court’s recent decision in Southern Union Co. v. United States making clear that any fact that increases a criminal statutory maximum penalty must be proved to a jury beyond a reasonable doubt—the government may opt to use expert witnesses more frequently. This article addresses what practitioners need to know to best protect their clients’ interests and the strategic issues at play now that the government may be more likely to present expert testimony in cartel cases.

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Reprinted with permission from: Antitrust Magazine, Summer 2014, Vol. 28, No. 3, published by the American Bar Association, 321 North Clark Street, Chicago, Illinois 60654, (1-800-285-2221),