Gregory Asciolla compares the case to the Ninth Circuit's 1996 decision in a case against Metro Industries Inc., a kitchenware importer.
"I think Metro Industries is just more interesting ... because the truth is if the Ninth Circuit comes out and says, 'No, if you have a case involving foreign conduct, then the rule of reason applies even if it's naked price-fixing' ... that would be a noteworthy and monumental decision," Labaton Sucharow LLP partner Gregory Asciolla said.
The most likely scenario, however, is that the Ninth Circuit will find a way to distinguish Metro Industries from the current case, for example, by saying that the 1996 ruling dealt with a novel antitrust argument brought as a civil claim, whereas the AUO case deals with straight-forward criminal price-fixing, according to Asciolla.
"It's important for the Justice Department to drive home that Metro Industries did not overturn decades of law in every circuit that says, 'Even if the conduct is foreign, if the conduct is a traditional naked price-fixing agreement, then the per se rule applies,'" Asciolla said. "Certainly, part of their argument will be to distinguish the cases on the facts, but I think the more important thing is to show as a matter of law Metro Industries cannot be correct the way the defendants interpret it."