FOR THE EASTERN DISTRICT OF PENNSYLVANIA
The United States of America, by its attorneys, acting with the authorization of the Acting Assistant Attorney General in charge of the Antitrust Division of the Department of Justice and Mitsubishi Corporation (hereinafter Mitsubishi) hereby enter into the following Sentencing Agreement:
1. Mitsubishi has been found guilty in the United States District Court for the Eastern District of Pennsylvania in Criminal No. 00-033 of aiding and abetting (18 U.S.C. §2(a)) a violation of Section 1 of the Sherman Act (15 U.S.C. §1) in connection with a conspiracy to suppress and eliminate competition by secretly fixing the price and allocating the volume of graphite electrodes sold in the United States and elsewhere.
2. Mitsubishi understands that the maximum penalty which may be imposed against it as a result of its conviction in this case is a fine in an amount equal to the largest of:
3. In addition, Mitsubishi understands that:
4. Mitsubishi hereby waives all rights to appeal or otherwise challenge its conviction. Mitsubishi further waives its right to appeal the imposition of sentence against it, so long as the sentence imposed is consistent with the recommendation in Paragraph 5 of this Sentencing Agreement.
5. The United States and Mitsubishi agree that the appropriate sentence in this case is, and agree jointly to recommend that the Court impose, pursuant to the United States Sentencing Guidelines and 18 U.S.C. § 3571(d), a sentence requiring Mitsubishi to pay a fine to the United States in the amount of $134 million, payable within 15 days of the date of sentencing. Mitsubishi understands that the Court will order it to pay a $400.00 special assessment pursuant to 18 U.S.C. § 3013(a)(2)(B) and U.S.S.G. § 8E1.1 in addition to any fine imposed. The United States agrees that it will not seek a restitution order with respect to the offense for which Mitsubishi was convicted because a restitution hearing would unduly complicate and prolong sentencing since civil actions seeking damages on behalf of victims already have been filed.
6. The United States agrees that it will not seek a term of probation for the defendant.
7. The United States and Mitsubishi jointly submit that this Sentencing Agreement, together with the record that was created by the United States and Mitsubishi at trial and any Sentencing Memoranda filed by the parties, shall provide sufficient information concerning Mitsubishi, the offense charged in this case, and Mitsubishi's role in the offense to enable the meaningful exercise of sentencing authority by the Court under 18 U.S.C. § 3553.
8. The United States and Mitsubishi understand that the Court retains complete discretion to accept or reject the agreed-upon recommendation provided for in Paragraph 5 of this Sentencing Agreement. If the Court does not accept the recommended sentence, either party may appeal the sentence.
9. The United States and Mitsubishi agree that for purposes of sentencing in this case, the following calculation of the Sentencing Guidelines is appropriate:
10. The United States and Mitsubishi agree that because the Sentencing Guidelines fine exceeds the $10 million statutory maximum under the Sherman Act, the fine must be based on the alternative fine provisions of 18 U.S.C. § 3571(d). In order to avoid the uncertainty and expense of a litigated sentencing hearing, and the expenditure of judicial resources, and in order to allow the Court to proceed directly to sentencing, the United States and Mitsubishi stipulate that the loss to the victims and/or the gain to Mitsubishi and others from the offense is sufficient to support a fine of $134 million. The United States and Mitsubishi agree that absent the preceding stipulation, a hearing under 18 U.S.C. § 3571 would be necessary to determine the loss to the victims from the offense or the gain to Mitsubishi and others, because there is currently insufficient evidence in the record from which a determination of loss or gain can be made.