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NIALL E. LYNCH (State Bar No. 157959)
NATHANAEL M. COUSINS (State Bar No. 177944)
MAY Y. LEE (State Bar No. 209366)
BRIGID S. BIERMANN (State Bar No. 231705)
Antitrust Division
U.S. Department of Justice
450 Golden Gate Avenue
Box 36046, Room 10-0101
San Francisco, CA 94102
Telephone: (415) 436-6660

Attorneys for the United States

Filed January 30, 2006

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION



UNITED STATES OF AMERICA    

                  v.

ELPIDA MEMORY, INC.

                  Defendant.


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Case No. CR 06-0059 MMC

INFORMATION

VIOLATIONS:
Title 15, United States Code,
Section 1 ­ Price Fixing and Bid
Rigging

San Francisco Venue



COUNT I - CONSPIRACY TO RESTRAIN TRADE BY PRICE FIXING

The United States of America, acting through its attorneys, charges:

I.

DESCRIPTION OF THE OFFENSE

1. ELPIDA MEMORY, INC. ("ELPIDA" or Defendant) is made a defendant on the charge stated below.

2. From on or about April 1, 1999, until on or about June 15, 2002, Defendant ELPIDA and its coconspirators, entered into and engaged in a combination and conspiracy in the United States and elsewhere to suppress and eliminate competition by fixing the prices of Dynamic Random Access Memory ("DRAM") to be sold to certain original equipment manufacturers of personal computers and servers ("OEMs"). The combination and conspiracy engaged in by the Defendant and its coconspirators was in unreasonable restraint of interstate and foreign trade and commerce in violation of Section 1 of the Sherman Act (15 U.S.C. § 1).

3. The charged combination and conspiracy consisted of a continuing agreement, understanding, and concert of action among the Defendant and its coconspirators, the substantial terms of which were to agree to fix the prices for DRAM to be sold to certain OEMs.

4. For the purpose of forming and carrying out the charged combination and conspiracy, the Defendant and its coconspirators did those things that they combined and conspired to do, including, among other things:

  1. participating in meetings, conversations, and communications in the United States and elsewhere to discuss the prices of DRAM to be sold to certain OEMs;

  2. agreeing, during those meetings, conversations, and communications, to charge prices of DRAM at certain levels to be sold to certain OEMs;

  3. issuing price quotations in accordance with the agreements reached; and

  4. exchanging information on sales of DRAM to certain OEM customers, for the purpose of monitoring and enforcing adherence to the agreed-upon prices.

II.

DEFENDANTS AND COCONSPIRATORS

5. ELPIDA is a corporation organized and existing under the laws of Japan. From April 1, 1999 until on or about March 1, 2001, HITACHI, LTD. ("Hitachi") and NEC CORPORATION ("NEC"), corporations organized and existing under the laws of Japan, sold DRAM products into various markets, including the U.S. market. On December 20, 1999, Hitachi and NEC (collectively, the "Corporate Founders") formed Defendant ELPIDA. Beginning on or about March 1, 2001, the Defendant sold DRAM products into various markets, including the U.S. market. During the period covered by Count I of this Information, ELPIDA, and its Corporate Founders, were engaged in the business of producing and selling DRAM to customers in the United States and elsewhere.

6. Various corporations and individuals, not made defendants in this Information, participated as coconspirators in the offense charged in this Information and performed acts and made statements in furtherance of it.

7. Whenever in this Information reference is made to any act, deed, or transaction of any corporation, the allegation means that the corporation engaged in the act, deed, or transaction by or through its officers, directors, employees, agents, or other representatives while they were actively engaged in the management, direction, control, or transaction of its business or affairs.

III.

TRADE AND COMMERCE

8. DRAM is the most commonly used semiconductor memory product. DRAM provides high-speed storage and retrieval of electronic information in personal computers, servers, and other devices. All references to DRAM in this Information include semiconductor memory devices and modules.

9. During the period covered by Count I of this Information, Defendant and its coconspirators sold and distributed DRAM in a continuous and uninterrupted flow of interstate and foreign trade and commerce to customers located in states or countries other than the states or countries in which the defendant and its coconspirators produced DRAM. The OEMs that were affected by the conspiracy to suppress and eliminate competition were: Dell Inc., Compaq Computer Corporation, Hewlett-Packard Company, Apple Computer, Inc., International Business Machines Corporation, and Gateway, Inc.

10. The business activities of the Defendant and its coconspirators that are the subject of Count I of this Information were within the flow of, and substantially affected, interstate and foreign trade and commerce.

IV.

JURISDICTION AND VENUE

11. The combination and conspiracy charged in Count I of this Information was carried out, in part, in the Northern District of California, within the five years preceding the filing of this Information.

COUNT II - CONSPIRACY TO RESTRAIN TRADE BY BID RIGGING

The United States of America, acting through its attorneys, charges:

I.

DESCRIPTION OF THE OFFENSE

12. ELPIDA is made a defendant on the charge stated below.

13. Defendant ELPIDA and its coconspirators had discussions and reached agreements on how it would allocate and divide a bid offered by Sun Microsystems, Inc. ("Sun") in a DRAM auction on or about March 26, 2002. The combination and conspiracy engaged in by the Defendant and its coconspirators was in unreasonable restraint of interstate and foreign trade and commerce in violation of Section 1 of the Sherman Act (15 U.S.C. § 1).

14. The charged combination and conspiracy consisted of a continuing agreement, understanding, and concert of action among the Defendant and its coconspirators, the substantial terms of which were to agree to allocate and divide a bid for the purchase of one lot of 1 Gigabyte Next-Generation Dual In-Line Memory Modules ("1 GB NG DIMM") by Sun.

15. For the purpose of forming and carrying out the charged combination and conspiracy, the Defendant and its coconspirators did those things that they combined and conspired to do, including, among other things:

  1. participating in meetings, conversations, and communications in the United States and elsewhere to discuss allocating (i.e., dividing up) a bid offered by Sun among themselves;

  2. agreeing, during those meetings, conversations, and communications, to allocate a bid offered by Sun;

  3. allocating, in accordance with the agreements reached, a bid offered by Sun among themselves, denying Sun a competitive price;

  4. participating in meetings, conversations, and communications to discuss the submission of prospective bids for a bid offered by Sun to purchase one lot of 1GB NG DIMM;

  5. agreeing, during those meetings, conversations, and communications, to submit complementary bids to ensure the success of their agreement; and

  6. submitting complementary bids for one lot of 1GB NG DIMM, denying Sun a competitive price.

II.

DEFENDANTS AND COCONSPIRATORS

16. ELPIDA is a corporation organized and existing under the laws of Japan. During the period covered by Count II of this Information, ELPIDA was engaged in the business of producing and selling DRAM to customers in the United States and elsewhere.

17. Another corporation and various individuals, not made defendants in this Information, participated as coconspirators in the offense charged in Count II of this Information and performed acts and made statements in furtherance of it.

III.

TRADE AND COMMERCE

18. During the period covered by Count II of this Information, the Defendant and its coconspirators sold and distributed DRAM in a continuous and uninterrupted flow of interstate and foreign trade and commerce to customers located in states or countries other than the states or countries in which the defendant and its coconspirators produced DRAM.

19. The business activities of the Defendant and its coconspirators that are the subject of Count II of this Information were within the flow of, and substantially affected, interstate and foreign trade and commerce.

IV.

JURISDICTION AND VENUE

20. The combination and conspiracy charged in Count II of this Information was carried out, in part, in the Northern District of California, within the five years preceding the filing of this Information.

ALL IN VIOLATION OF TITLE 15, UNITED STATES CODE, SECTION 1.


_______________/s/________________
Thomas O. Barnett
Acting Assistant Attorney General


_______________/s/________________
Scott D. Hammond
Deputy Assistant Attorney General




_______________/s/________________
Marc Siegel
Director of Criminal Enforcement

United States Department of Justice
Antitrust Division


_______________/s/________________
Kevin V. Ryan
United States Attorney
Northern District of California

_______________/s/________________
Phillip H. Warren
Chief, San Francisco Office


_______________/s/________________
Niall E. Lynch, Assistant Chief
Nathanael M. Cousins
May Y. Lee
Brigid S. Biermann
Attorneys
U.S. Department of Justice
Antitrust Division
450 Golden Gate Ave.
Box 36046, Room 10-0101
San Francisco, CA 94102
(415) 436-6660