5:04-cv-04156-jw document222 filed 04/16/2008 page 1...

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COUGHLIN STOIA GELLERRUDMAN & ROBBINS LLP

JOHN K. GRANT (169813)CHRISTOPHER M. WOOD (254908)100 Pine Street, Suite 2600San Francisco, CA 94111Telephone: 415/288-4545415/288-4534 (fax)[email protected]@csgrr.com

MURRAY, FRANK & SAILER LLPBRIAN P. MURRAY275 Madison Avenue, Suite 801New York, NY 10016Telephone: 212/682-1818212/682-1892 (fax)[email protected]

Co-Lead Counsel for Plaintiffs

[Additional counsel appear on signature page.]

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

In re INFINEON TECHNOLOGIES AG ) Master File No. C-04-4156-JWSECURITIES LITIGATION )

CLASS ACTION

This Document Relates To: ) DECLARATION OF JOHN K. GRANT INSUPPORT OF PLAINTIFFS' OPPOSITION

ALL ACTIONS. ) TO DEFENDANTS' MOTION FORSUMMARY JUDGMENT BASED ON THESTATUTE OF LIMITATIONS

DATE: June 2, 2008TIME: 9:00 a.m.JUDGE: The Honorable

James WareCOURTROOM: 8, 4th Floor

ase 5:04-cv-04156-JW Document 222 Filed 04/16/2008 of 4

1 I, JOHN K. GRANT, declare as follows:

2 1. I am an attorney duly licensed to practice before all of the courts of the State of

3 California. I am a member ofthe law firm ofCoughlin Stoia Geller Rudman & Robbins LLP, one of

4 the counsel of record for plaintiff in the above-entitled action. I have personal knowledge of the

5 matters stated herein and, if called upon, I could and would competently testify thereto.

6 2. Attached are true and correct copies of the following exhibits:

7 Exhibit A: United States v. Heinrich Florian, Case No. CR-04-0397 (PJH), PleaAgreement (N.D. Cal. filed Dec. 15, 2004);

8Exhibit B: United States v. Gunter Hefner, Case No. CR-04-0397 (PJH), Plea

9 Agreement (N.D. Cal. filed Dec. 15, 2004);

10 Exhibit C: United States v. Peter Schaefer, Case No. CR-04-0397 (PJH), PleaAgreement (N.D. Cal. filed Dec. 15, 2004);

11Exhibit D: United States v. T. Rudd Corwin, Case No. CR-04-0397 (PJH), Plea

12 Agreement (N.D. Cal. filed Dec. 15, 2004);

13 Exhibit E: In re Dynamic Random Access Memory (DRAM) Antitrust Litigation, CaseNo. M02-1486 PJH Order Denying Motions to Seal re Summary Judgment,

14 dated March 6, 2007;

15 Exhibit F: E-mail from Heinrich Florian to Guenter Hefner, dated October 9, 2001, CaseNo. M:02-cv-01486-PJH Document 1458;

16Exhibit G: Excerpt ofDeposition Transcript ofPeter Schaefer, dated May 8, 2006, Case

17 No. M:02-cv-01486-PJH Document 1458;

18 Exhibit H: Excerpt of Deposition Transcript of Steven Appleton, dated May 9, 2006,Case No. M:02-cv-01486-PJH Document 1458;

19Exhibit I: E-mail from Peter Schaefer to Harald Eggers, dated September 20, 2001,

20 Case No. M:02-cv-01486-PJH Document 1458;

21 Exhibit J: E-mail from Andreas von Zitzewitz to Peter Schaefer, dated October 15,2001, Case No. M:02-cv-01486-PJH Document 1458;

22Exhibit K: E-Mail from Andreas von Zitzewitz to Heinrich Florian, dated May 13, 2002,

23 Case No. M:02-cv-01486-PJH Document 1458; and

24 Exhibit L: Electronic Engineering Times article entitled "DRAMS Under Gun InAntitrust Probe, dated June 24, 2002.

25I declare under penalty ofperjury under the laws ofthe State of California that the foregoing

26is true and correct. Executed this 16th day of April, 2008, at San Francisco, California.

27s/John K. Grant

28 JOHN K. GRANT

DECLARATION OF JOHN K. GRANT IN SUPPORT OF PLAINTIFFS' OPPOSITION TODEFENDANTS' MOTION FOR SUMMARY JUDGMENT - C-04-4156-JW - 1 -

5:04-cv-04156-JW Document 222 Filed 04/16/2008 of 4

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CERTIFICATE OF SERVICE

I hereby certify that on April 16, 2008, I electronically filed the foregoing with the Clerk of

the Court using the CM/ECF system which will send notification of such filing to the e-mail

addresses denoted on the attached Electronic Mail Notice List, and I hereby certify that I have

mailed the foregoing document or paper via the United States Postal Service to the non-CM/ECF

participants indicated on the attached Manual Notice List.

I certify under penalty of perjury under the laws of the United States of America that the

foregoing is true and correct. Executed on April 16, 2008.

s/John K. GrantJOHN K. GRANT

COUGHLIN STOIA GELLERRUDMAN & ROBBINS LLP

100 Pine Street, 26th FloorSan Francisco , CA 94111Telephone : 415/288-4545415/288-4534 (fax)

[email protected]

T:\CasesSFUnfineon Techs\DE000050665.doc

CAND-ECF Page 1 of 1

Case 5 : 04-cv-04156-JW Document 222 Filed 04/16/2008 of 4

Mailing Information for a Case 5:04-cv-04156-JW

Electronic Mail Notice List

The following are those who are currently on the list to receive e-mail notices for this case.

• Eric J. [email protected],[email protected]

• Patrick J. [email protected],[email protected],[email protected]

• Mark R.S. [email protected],[email protected]

• Marc Lawrence [email protected]

• John K. [email protected],[email protected],[email protected],efile [email protected],[email protected],efile [email protected]

• Thomas J. [email protected]

• William S. [email protected]

• Mia Ann. [email protected],[email protected]

• Brian P [email protected]

• Ira A. [email protected],[email protected]

Manual Notice List

The following is the list of attorneys who are not on the list to receive e-mail notices for this case (who therefore require manualnoticing). You may wish to use your mouse to select and copy this list into your word processing program in order to createnotices or labels for these recipients.

Jonathan Gardner

Labaton Sucharow LLP

140 Broadway

New York, NY 10005

Beth HoffmanLabaton Rudoff & Sucharow LLP

100 Park Avenue

New York, NY 10017

Darren Jay RobbinsCoughlin Stoia Geller Rudman & Robbins LLP655 West BroadwaySuite 1900San Diego, CA 92101

https://ecf.cand.uscourts.gov/cgi-bin/MailList.pl?544884357220164-L 685_0-1 4/16/2008

Case 5:04-cv-04156-JW Document 222-2 Filed 04/16/2008 Page 1 of 16

Exhibit A


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NIALL E. LYNCH (CSBN 157959)EUGENE S. LITVINOFF (CSBN 214318)NATHANAEL M. COUSINS (CSBN 177944)U.S. Department of JusticeAntitrust Division450 Golden Gate AvenueRoom 10-0101 , Box 36046San Francisco , CA 94102Telephone : (415) 436-6660

Attorneys for the United States



SAN FRANCISCO DIVISION

UNITED STATES OF AMERICA

Plaintiff,V.

HEINRICH FLORIAN,

Defendant.

Case No. CR-04-0397 PJH

PLEA AGREEMENT

PLEA. AGREEMENT

The United States of America and Heinrich Florian ("Defendant") hereby enter into the

following Plea Agreement pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal

Procedure ("Fed. R. Crim. P."):

RIGHTS OF DEFENDANT

1. Defendant understands that he has the right:

(a) to be represented by an attorney;

. (b) to-be charged-by Indictment;.

(c) to plead not guilty to any criminal charge brought against him;

(d) as a citizen and resident of the Federal Republic of Germany ("Germany"),

to decline to accept service of the Summons in this case, and to contest the jurisdiction of

the United States to prosecute this case against him in the United States District Court for

the Northern District of California;

11 PLEA AGREEMENT -- FLORIAN - PAGE 1


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(e) to have a trial by jury, at which he would be presumed not

guilty of the charge and the United States would have to prove every essential element of

the charged offense beyond a reasonable doubt for him to be found guilty;

(f) to confront and cross-examine witnesses against him and to

subpoena witnesses in his defense at trial;

(g) not to be compelled to incriminate himself;

(h) to appeal his conviction; and

(i) to appeal the imposition of sentence against him.

AGREEMENT TO PLEAD GUILTYAND WAIVE CERTAIN RIGHTS

2. Defendant waives the rights set out in Paragraph 1 (b)-(h) above, including all

jurisdictional defenses to the prosecution of this case, and agrees voluntarily to consent to the

jurisdiction of the United States to prosecute this case against him in the United States District

Court for the Northern District of California. Defendant agrees to have his sentence determined

under the United States Sentencing Guidelines ("U.S.S.G.") and waives all constitutional

challenges to the validity of the U.S.S.G. Defendant waives any right he may have to have facts

that determine his Guidelines fine and imprisonment ranges under the U.S.S.G. (including any

facts used to determine his offense level, volume of commerce, any specific offense characteristic

or other enhancement or adjustment under the U.S.S.G.) alleged in an indictment and found by a

jury beyond a reasonable doubt. Defendant also waives the right to appeal the imposition of the

sentence against him, so long as the sentence imposed is consistent with the recommended

sentence contained in Paragraph 8 of this Plea Agreement. Defendant also waives the right to

file any collateral attack on his conviction or sentence, including a petition under 28 U.S.C. §

2255, at any time after he is sentenced, except for a claim that his constitutional right to the

effective assistance of counsel was violated. Further, pursuant to Fed. R. Crim. P. 7(b),

Defendant will waive Indictment and plead guilty at arraignment to a one-count Information to

be filed in the United States District Court for the Northern District ofCalifornia. The

Information will charge that beginning on or about July 1, 1999, and continuing until on or about

PLEA AGREEMENT -- FLORIAN - PAGE 2

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June 15, 2002, Infineon Technologies AG ("Infineon AG"), including its United States-based

subsidiary Infineon Technologies North America Corp ("Infineon NA"), and co-conspirators

participated in a conspiracy in the United States and elsewhere to suppress and eliminate

competition by fixing the price of dynamic random access memory ("DRAM") to be sold to

certain original equipment manufacturers of personal computers and servers ("OEMs"), in

violation of the Sherman Antitrust Act, 15 U.S.C. § 1. The Information will further charge that

Defendant, an employee of Infineon AG, joined and participated in the charged conspiracy from

on or about April 1, 2001, until on or about June 15, 2002.

3. Defendant, pursuant to the terms of this Plea Agreement, will plead guilty to the

criminal charge described in Paragraph 2 above and will make a factual admission of guilt to the

Court in accordance with Fed. R. Crim. P. 11, as set forth in Paragraph 4 below.

FACTUAL BASIS FOR OFFENSE CHARGED

4. Had this case gone to trial, the United States would have presented evidence to

prove the following facts:

(a) For purposes of this Plea Agreement, the "relevant period" is that period

from on or about April 1, 2001, to on or about June 15, 2002. During the relevant period,

Defendant was an officer of Infineon AG, an entity organized and existing under the laws of

Germany, with its principal place of business in Munich, Germany. From April 1, 2001 to

December 31, 2001, Defendant was Infineon's Vice President for Sales, Marketing & Logistics

for Memory Products, and from January 1, 2002 until July 15, 2002, Defendant was Infineon's

Vice President for Marketing & Logistics.

(b) 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.

(c) In the course of his employment for Infineon AG during the relevant

period, Defendant was engaged in the sale ofDRAM in the United States by virtue of his

responsibility for recommending to his superiors, including the Infineon Memory Products

Board, the minimum price floors for the sale of DRAM in the United States. Defendant also

PLEA AGREEMENT -- FLORIAN - PAGE.3

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directly supervised other employees engaged in the sale ofDRAM in the United States, from

April 1, 2001 through December 31, 2001, by virtue of his Sales-related responsibilities as.

Infineon ' s Vice President for Sales, Marketing & Logistics for Memory Products.

(d) During the relevant period, Defendant participated in a pre-existing

conspiracy, as described below, in the United States and elsewhere among certain DRAM

producers and their officers and employees, the primary purpose of which was to raise the price

ofDRAM sold to certain OEMs. The conspiracy directly affected these OEMs in the United

States: Dell Inc., Hewlett-Packard Company, Compaq Computer Corporation, International

Business Machines Corporation, Apple Computer Inc., and Gateway, Inc. Defendant

participated in the above-referenced conspiracy by engaging in communications with

representatives of other DRAM producers and sellers, during which information on pricing was

exchanged between competitors for the purpose and with the effect of influencing the price of

DRAM sold to certain OEMs. Also during these communications understandings were reached,

the effect of which was to stabilize and raise the price ofDRAM sold to certain OEMs.

Defendant then made minimum pricing floor. recommendations , for the sale ofDRAM to certain

OEMs, to his superiors, including the Infineon Memory Products Board. Those price

recommendations were based on pricing information obtained by Defendant and other Infineon

employees in communications with competitors.

(e) In addition, during the relevant period Defendant was aware of the

existence of the conspiracy among the employees and officers of Infineon AG, and he knowingly

consented to the participation of one or more of his subordinate employees in that conspiracy.

(f} During the relevant period, DRAM sold by one or more of the conspirators,

equipment and supplies necessary to the production and distribution ofDRAM, and payments for

DRAM, traveled in interstate and foreign commerce . The business activities of Defendant and his

co-conspirators in connection with the production and sale ofDRAM affected by this conspiracy

were within the flow of, and substantially affected, interstate and foreign trade and commerce.

(g) Acts in furtherance of this conspiracy were carried out within the Northern

District of California. Furthermore, DRAM affected by this conspiracy was sold by one or more



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of the conspirators to customers in this District.

POSSIBLE MAXIMUM SENTENCE

5. Defendant understands that the maximum penalty which may be

imposed against him upon conviction for a violation of Section One of the Sherman Antitrust Act

is:

(a) a term of imprisonment for three (3) years (15 U.S.C. § 1);

(b) a fine in an amount equal to the greatest of (1) $350,000, (2) twice the

gross pecuniary gain the conspirators derived from the crime, or (3) twice the gross

pecuniary loss caused to the victims of the crime by the conspirators (15 U.S.C. § 1; 18

U.S.C. § 3571(b) and (d)); and

(c) a term ofsupervised release of one (1) year following any term of

imprisonment. If Defendant violates any condition of supervised release,

Defendant could be imprisoned for the entire term of supervised release

(18 U.S.C. § 3559(a)(5); 18 U.S.C. § 3583(b)(3) and (e)(3); and U.S.S.G. § 5D1.2(a)(3)).

6. In addition, Defendant understands that:

(a) pursuant to U.S.S.G. § 5E1.1, this Court may order him to pay

restitution to the victims of the offense; and

(b) pursuant to 18 U.S.C. § 3013(a)(2)(A) and U.S.S.G. § 5E1.3, this

Court is required to order Defendant to pay a $100.00 special assessment

upon conviction for the charged crime.

SENTENCING GUIDELINES

7. Sentencing for the offense to be charged will be conducted pursuant to

the U.S.S.G. Manual in effect on the day of sentencing. Pursuant to U.S.S.G. § 1B1.8, the

United States agrees that self-incriminating information that Defendant provides to the United

States pursuant to this Plea Agreement will not be used to increase the volume of affected

commerce attributable to Defendant or in determining Defendant's applicable sentencing

guidelines range, except to the extent provided in U.S.S.G. § I B 1.8(b). The United States and

Defendant agree that the U.S. Sentencing Guidelines may be applied and, if applied, the

{ PLEA AGREEMENT -- FLORIAN - PAGE 5


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applicable sentencing guidelines is U.S.S.G. § 2RI.1 with a base level of 10, a volume of

commerce adjustment of plus 7 pursuant to U.S.S.G. § 2R1.1(b)(2)(G); a role in the offense

adjustment of plus 3 pursuant to U.S.S.G. § 3B1.1 for a total of 20, less a 3-level adjustment for

acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a) and (b), for a total offense level of

17. Further, the United States agrees to make a motion for downward departure pursuant to

Paragraph 10 herein and U.S.S.G. § 5K1.1, recommending that Defendant be sentenced to the

sentence agreed to below.

SENTENCING AGREEMENT

8. (a) Pursuant to Fed. R. Crim. P. 11(c)(1)(C), the United States and Defendant

agree that the appropriate disposition of this case is, and agree to recommend jointly that the

Court impose, a sentence requiring that Defendant pay to the United States a criminal fine of

$250,000, pursuant to 18 U.S.C. § 3571(d), payable in full before the thirtieth (30`h) day after the

date ofjudgment ; a period of incarceration of 180 days ; no order of restitution ; and no period of

supervised release ("the recommended sentence"). Defendant understands that this Court will

order him to pay a $100 special assessment pursuant to 18 U.S.C. § 3013(a)(2)(A) and U. S.S.G.

§ 5E1.3 in addition to any fine imposed.

(b) The United States will not object to Defendant's request that the Court

I make a recommendation to the Bureau of Prisons that the Bureau of Prisons designate that

Defendant be assigned to a Federal Minimum Security Camp (and specifically to the Lompoc

Prison Camp in Lompoc, California) to serve his sentence of imprisonment and that Defendant

be released on his own personal recognizance following the imposition of sentence to allow him

to self-surrender to the designated institution on a specified date.

(c) The parties also agree that if the U.S. Sentencing Guidelines do not apply,

this Court in exercising its unfettered discretion within the statutory limits for this offense should

impose the same recommended sentence. Nothing in this Agreement shall preclude the United

States from making a motion to reduce Defendant's sentence pursuant to Fed. R. Crim. P. 35(b)

or otherwise, if circumstances so warrant.

9. The United States and Defendant agree that, pursuant to U.S.S.G. § 5E1.1(b),



Defendant should not be ordered to pay restitution in light of the civil cases filed against Infineon

AG, Defendant ' s employer , including In re DRAM Antitrust Litigation , No. M-02-1486-PJH,

MDL No. 1486, in the United States District Court, Northern District of California , and DRAM

Cases , No. CJC-03-004265, in the Superior Court, San Francisco , California, which potentially

provide for a recovery of a multiple of actual damages.

10. The United States and Defendant agree that the applicable Sentencing

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Guidelines fine and incarceration ranges exceed the fine and term of imprisonment contained in

the recommended sentence set out in Paragraph 8 above. Subject to the full and continuing

cooperation of Defendant, as described in Paragraph 13 of this Plea Agreement, and prior to

sentencing in this case, the United States agrees that it will make a motion, pursuant to U.S.S.G.

§ SKI. 1, for a downward departure from the Guidelines sentence in this case. The motion for

downward departure is based on cooperation that has already occurred and any additional

cooperation that may occur prior to sentencing. Furthermore, the United States will request that

this Court impose the fine and term of imprisonment contained in the recommended sentence set

out in Paragraph 8 of this Plea Agreement because of Defendant's substantial assistance in the

government's investigation and prosecutions of violations of federal criminal law in the DRAM

industry.

11. The United States and Defendant jointly submit that. this Plea Agreement and the

record that will be created by the United States and Defendant at the plea and sentencing hearing

will provide sufficient information concerning Defendant, the offense charged in this case, and

Defendant's role in the offense to enable the meaningful exercise of sentencing authority by this

Court under 18 U.S.C. § 3553. The United States will not object to Defendant's request that this

Court accept Defendant's plea of guilty and impose sentence on an expedited schedule as early as

the date of arraignment, based upon the record provided by Defendant and the United States,

under the provisions of Rule 32(b)(1), Fed. R. Crim. P., U.S.S.G. § 6A1.1, and Criminal Local

Rule 32-1(b). The Court's denial of the request to impose sentence on an expedited schedule

will not void this Plea Agreement. Should the Court deny Defendant's request to impose

sentence on an expedited schedule, the United States agrees that, at the initial appearance or


Case 5:04-cv-04156-JW Document 222-2 Filed 04/16/2008 Page 9 of 1.6

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arraignment, it will recommend the release ofDefendant on his personal recognizance and

without bond, under 18 U.S.C. § 3142, without restriction as to travel, pending the sentencing

hearing in this case.

12. The United States and Defendant understand that this Court retains complete

discretion to accept or reject the recommended sentence provided for in Paragraph 8 of this Plea

Agreement.

(a) If this Court does not accept the recommended sentence, the United States

and Defendant agree that this Plea Agreement, except for Paragraph 12(b) below, shall be

rendered void. Neither party may withdraw from this Plea Agreement, however, based on

the type or location of the correctional facility to which Defendant is assigned to serve his

sentence.

(b) If this Court does not accept the recommended sentence, Defendant will be

free to withdraw his guilty plea (Fed. R. Crirn. P. 11(c)(5) and (d)). If Defendant

withdraws his plea of guilty, this Plea Agreement, the guilty plea, and any statement made

in the course of any proceedings under Fed. R. Crim. P. I I regarding the guilty plea or

this Plea Agreement or made in the course of plea discussions with an attorney for the

government shall not be admissible against Defendant in any criminal or civil proceeding,

except as otherwise provided in Fed. R. Evid. 410. In addition, should the Court not

accept the Plea Agreement and should Defendant then withdraw his guilty plea, the

United States agrees that it will dismiss the Information, without prejudice to the United

States' right to indict Defendant on the charge contained in the Information and any other

related charges. In addition, Defendant agrees that, if he withdraws his guilty plea

pursuant to this subparagraph of the Plea Agreement, the statute of limitations period for

any Relevant Offense, as defined in Paragraph 13 below,.will be tolled for the period

between the date of the signing of the Plea Agreement and the date Defendant withdrew

his guilty plea or for a period of sixty (60) days after the date of the signing of the Plea

Agreement, whichever is greater. For a period of three (3) consecutive days following

such a withdrawal of the guilty plea under this subparagraph, the United States shall take


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Case 5:04-cv-04156-JW. Document 222-2 Filed 04/16/2008 Page 10 of 16

no action, based upon either a Relevant Offense or any actual or alleged violation of the

Plea Agreement, to revoke Defendant's release on his personal recognizance, to subject

Defendant to service of process, arrest, or detention, or to prevent Defendant from

departing the United States.

DEFENDANT'S COOPERATION

13. Defendant will cooperate fully and truthfully with the United

States in the prosecution of this case, the current federal investigation of violations of federal

antitrust and related criminal laws involving the manufacture or sale of DRAM, any other federal

investigation resulting therefrom, and any litigation or other proceedings arising or resulting from

any such investigation to which the United States is a party ("Federal Proceeding"). The

ongoing, full, and truthful cooperation of Defendant shall include, but not be limited to:

(a) producing in the United States and at other mutually agreed-

upon locations all non-privileged documents, including claimed personal documents, and

other non-privileged materials, wherever located, in the possession, custody, or control of

Defendant, requested by attorneys and agents of the United States;

(b) making himself available for interviews in the United States

and at other mutually agreed-upon locations, not at the expense of

the United States, upon the request of attorneys and agents of the United States;

(c) , responding fully and truthfully to all inquiries of the United

States in connection with any Federal Proceeding, without falsely implicating any person

or intentionally withholding any non-privileged information, subject to the penalties of

making false statements (18 U.S.C. § 1001) and obstruction ofjustice (18 U.S.C. § 1503);

(d) otherwise voluntarily providing the United States with any

non-privileged material or information, not requested in (a) - (c) of this paragraph, that he

may have that is related to any Federal Proceeding; and

(e) when called upon to do so by the United States in connection

with any Federal Proceeding, testifying in grand jury, trial, and other

judicial proceedings in the United States, fully, truthfully, and under oath, subject to the


Case 5:04-cv-04156-JW Document 222-2 Filed 04/16/2008 Page 11 of 1 E

penalties of perjury (18 U.S.C. § 1621), making false statements or declarations in grand

jury or court proceedings (18 U.S.C. § 1623), contempt (18 U.S.C. §§ 401 -402), and

obstruction ofjustice (18 U.S.C. § 1503).

GOVERNMENT'S AGREEMENT

14. Subject to the full, truthful, and continuing cooperation of Defendant, as described

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in Paragraph 13 of this Plea Agreement, and upon the Court's acceptance of the guilty plea called

for by this Plea Agreement and the imposition of the recommended sentence, the United States

will not bring further criminal charges against Defendant for any act or offense committed before

the date of this Plea Agreement that was undertaken in furtherance of an antitrust conspiracy

involving the manufacture or sale ofDRAM or undertaken in connection with any investigation

of such a conspiracy ("Relevant Offense"). The nonprosecution terms of this paragraph do not

apply to civil matters of any kind, to any violation of the federal tax or securities laws, or to any

crime of violence.

15. The United States agrees that when Defendant travels to the United States for

interviews, grand jury appearances, or court appearances pursuant to this Plea Agreement, or for

meetings with counsel in preparation therefor, the United States will take no action, based upon

any Relevant Offense, to subject Defendant to arrest, detention, or service of process, or to

prevent Defendant from departing the United States. This paragraph does not apply to

Defendant's commission of perjury (18 U.S.C. § 1621), making false statements (18 U.S.C. §

1001), making false statements or declarations in grand jury or court proceedings (18 U.S.C. §

1623), obstruction ofjustice (18 U.S.C. § 1503), or contempt (18 U.S.C. §§ 401 - 402) in

connection with any testimony or information provided or requested in any Federal Proceeding.

16. (a) Subject to the full and continuing cooperation of Defendant,

as described in Paragraph 13 of this Plea Agreement, and upon the Court's acceptance of

Defendant's guilty.plea and imposition of sentence in this case, the United States agrees not to

seek to remove Defendant from the United States under Section 240 of the Immigration and

Nationality Act, based upon Defendant's guilty plea and conviction in this case, should

Defendant apply for or obtain admission to the United States as a nonimmigrant (hereinafter



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referred to as the "agreement not to seek to remove Defendant"). The agreement not to seek to

remove Defendant is the equivalent of an agreement not to exclude Defendant from admission to

the, United States as a nonimmigrant or to deport Defendant from the United States.

(Immigration and Nationality Act, § 240(e)(2)).

(b) The Antitrust Division of the United States Department of Justice has

consulted with the United States Immigration and Customs Enforcement of the United States

Department of Homeland Security ("ICE"). ICE, in consultation with the United States

Department of State, has agreed to the inclusion in this Plea Agreement of this agreement not to

seek to remove Defendant.

(c) So that Defendant will be able to obtain any nonimmigrant visa that he

may need to travel to the United States, ICE and the Visa Office of the United States Department

of State, have concurred in the granting of a nonimmigrant waiver of Defendant's

inadmissibility. This waiver will remain in effect so long as this agreement not to seek to remove

Defendant remains in effect. While the waiver remains in effect, the Department of State will

not deny Defendant's application for a nonimmigrant visa on the basis of Defendant's guilty plea

and conviction in this case, and ICE will not deny his application for admission as a

nonimmigrant on the basis of his guilty plea and conviction in this case.

(d) This agreement not to seek to remove Defendant will remain

in effect so long as Defendant:

(i) acts and has acted consistently with his cooperation obligations

under this Plea Agreement;

(ii) is not convicted of any felony under the laws of the United States

or any state, other than the conviction resulting from Defendant's

guilty plea under this Plea Agreement or any conviction under the

laws of any state resulting from conduct constituting an offense

subject to this Plea Agreement; and

(iii) does not engage in any other conduct that would warrant his

removal from the United States under the Immigration and

PLEA AGREEMENT -- FLORIA:N - PAGE 11

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Nationality Act.

Defendant understands that should the Antitrust Division become aware that Defendant

has violated any of these conditions, the Antitrust Division will notify ICE. ICE will then

determine, in consultation with the Antitrust Division, whether to move to rescind this agreement

not to seek to remove Defendant.

(e) Defendant agrees to notify the Assistant Attorney General of the Antitrust

Division should Defendant be convicted of any other felony under the laws of the United States

or of any state.

(f) Should the United States rescind this agreement not to seek to remove

Defendant because of Defendant's violation of a condition of this Plea Agreement, Defendant

irrevocably waives his right to contest his removal from the United States under the Immigration

and Nationality Act on the basis of his guilty plea and conviction in this case, but retains his right

to notice of removal proceedings.

17. Defendant understands that he may be subject to administrative action by federal,

state or foreign agencies other than the United States Department of Justice, Antitrust Division,

based upon the conviction resulting from this Plea Agreement, and that this Plea Agreement in

no way controls whatever action, if any, other agencies may take. However, the United States

agrees that, if requested, it will advise the appropriate officials of any governmental agency

considering such administrative action of the fact, manner, and extent of the cooperation of

Defendant as a matter for that agency to consider before determining what administrative action,

if any, to take.

REPRESENTATION BY COUNSEL

18. Defendant has reviewed all legal and factual aspects of this case with his attorney

and is fully satisfied with his attorney's legal representation. Defendant has thoroughly reviewed

this Plea Agreement with his attorney and has received satisfactory explanations from his

attorney concerning each paragraph of this Plea Agreement and alternatives available to

Defendant other than entering into this Plea Agreement. After conferring with his attorney and

considering all available alternatives, Defendant has made a knowing and voluntary decision to


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Case 5:04-cv-04156-JW Document 222-2 Filed 04/16/2008

enter into this Plea Agreement.

VOLUNTARY PLEA

Page 14 of 16

19. Defendant's decision to enter into this Plea Agreement and to tender a plea of

guilty is freely and voluntarily made and is not the result of force, threats, assurances, promises,

or representations other than the representations contained in this Plea Agreement. The United

States has made no promises or representations to Defendant as to whether this Court will accept

or reject the recommendations contained within this Plea Agreement.

VIOLATION OF PLEA AGREEMENT

20. Defendant agrees that, should the United States determine in good faith, during the

period that any Federal Proceeding is pending, that Defendant has failed to provide full and

truthful cooperation, as described in Paragraph 13 of this Plea Agreement, or has otherwise

violated any provision of this Plea Agreement, the United States will notify Defendant or his

counsel in writing by personal or overnight delivery or facsimile transmission and may also

notify his counsel by telephone of its intention to void any of its obligations under this Plea

Agreement (except its obligations under this paragraph), and Defendant shall be subject to

prosecution for any federal crime of which the United States has knowledge including, but not

limited to, the substantive offenses relating to the investigation resulting in this Plea Agreement.

Defendant may seek Court review of any determination made by the United States under this

Paragraph to void any of its obligations under the Plea Agreement. Defendant agrees that, in the

event that the United States is released from its obligations under this Plea Agreement and brings

criminal charges against Defendant for any Relevant Offense, the statute of limitations period for

such offense will be tolled for the period between the date of the signing of this Plea Agreement

and six (6) months after the date the United States gave notice of its intent to void its obligations

under this Plea Agreement.

21. Defendant understands and agrees that in any further prosecution

I of him resulting from the release of the United States from its obligations under this Plea

Agreement based on Defendant's violation of the Plea Agreement, any documents, statements,

information, testimony, or evidence provided by him to attorneys or agents of the United States,


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Case 5:.04-cv-04156-JW Document 222-2 Filed 04/16/2008 Page 15 of 16

federal grand juries, or courts , and any leads derived therefrom , may be used against him in any

such further prosecution . In addition , Defendant unconditionally waives his right to challenge

the use of such evidence in any such further prosecution , notwithstanding the protections of Fed.

R. Evid. 410.

22. Defendant agrees to and adopts as his own the factual statement contained in

Paragraph 4 above . In the event that Defendant breaches the Plea Agreement, Defendant agrees

that the Plea Agreement, including the factual statement contained in Paragraph 4 above,

provides a sufficient basis for any possible future extradition request that may be made for his

return to the United States to face charges either in the Information referenced in Paragraph 2 of

this Plea Agreement or in any related indictment . Defendant further agrees not to oppose or

contest any request for extradition by the United States to face charges either in the Information

referenced in Paragraph 2 of this Plea Agreement or in any related indictment.

ENTIRETY OF AGREEMENT

23. This Plea Agreement constitutes the entire . agreement between the

United States and Defendant concerning the disposition of the criminal charge in this case. This

Plea Agreement cannot be modified except in writing, signed by the United States and

Defendant.

24. The undersigned attorneys for the United States have been authorized by the

Attorney General of the United States to enter this Plea Agreement on behalf of the United

States.

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I PLEA AGREEMENT -- FLORIAN - PAGE 14


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2

3. 25. A facsimile signature shall be deemed an original signature for the purpose of

lll

_............ ................._...,4... --executing this- Plea. Agreement:. Multiple signature-pages-are authorized forthe-purpose of

5 executing this Plea Agreement.

6

7 DATED: November., 2004 Respectfully submitted,

8

10De

Floriannt

all E. Lynch (C 157959)ugene S. Litvind (CSBN 214318)

11M

Nathanael M. Cousins (CSBN 177944)U.S. Department of Justice

12 Antitrust Divisionse for fendan 450 Golden Gate Avenue

13 intent J. Marella' Room 10-0101, Box 36046Thomas R. Freeman Tel: (415) 436-6660

14 Bird, Marella, Boxer, Wolpert Fax: (415) 436-6687

15Nessim, Drooks & Licenber

23r FloorPark Easttur1875 C ,en yLos Angeles, CA 90067-2561

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24..........................

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11 PLEA AGREEMENT -- FLORIAN - PAGE 15


Exhibit B

Case 5:04-cv-04156-JW Document 222-3 Filed 04/16/200.8 Page 2 of 16

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NIALL E. LYNCH (CSBN 157959)EUGENE S. LITVINOFF (CSBN 214318)NATHANAEL M. COUSINS (CSBN 177944)U.S. Department of JusticeAntitrust Division450 Golden Gate AvenueRoom 10-0101 , Box 36046San Francisco , CA 94102Telephone : (415) 436-6660






Plaintiff, Case No. CR 04-0397 PJH'V.

PLEA AGREEMENTGUNTER HEFNER, )

Defendant.

PLEA AGREEMENT

The United States of America and Gunter Hefner ("Defendant") hereby enter into the

following Plea Agreement pursuant to Rule I1(c)(1)(C) of the Federal Rules of Criminal


RIGHTS OF DEFENDANT



(b) to be charged by Indictment; ......... ........................................ ....... .........




the United States to prosecute this case against him in the United States District Court for


PLEA AGREEMENT - HEFNER - PAGE 1


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(e) to have a trial by jury, at which he would be presumed not



(f) to confront and cross-examine witnesses against him and to


(g) not to be compelled to incriminate himself;

(h) to appeal his conviction; and

(i) to appeal the imposition of sentence against him.

AGREEMENT TO PLEAD GUILTYAND WAIVE CERTAIN RIGHTS

2. Defendant waives the rights set out in Paragraph 1(b)-(h) above, including all

jurisdictional defenses to the prosecution of this case, and agrees voluntarily to consent to the

jurisdiction of the United States to prosecute this case against him in the United States District

Court for the Northern District of California. Defendant agrees to have his sentence determined

under the United States Sentencing Guidelines ("U.S.S.G.") and waives all constitutional

challenges to the validity of the U.S.S.G. Defendant waives any right he may have to have facts

that determine his Guidelines fine and imprisonment ranges under the U.S.S.G. (including any

facts used to determine his offense level, volume ofcommerce, any specific offense characteristic

or other enhancement or adjustment under the U.S.S.G.) alleged in an indictment and found by a

jury beyond a reasonable doubt. Defendant also waives the right to appeal the imposition of the.,

sentence against him, so long as the sentence imposed is consistent with the recommended

sentence contained in Paragraph 8 of this Plea Agreement. Defendant also waives the right to

file any collateral attack on his conviction or sentence, including a petition under 28 U.S.C. §

2255, at any time after he is sentenced, except for a claim that his constitutional right to the .

effective assistance of counsel was violated. Further, pursuant to Fed. R. Crim. P. 7(b),

Defendant will waive Indictment and plead guilty at arraignment to a one-count Information to

be filed in the United States District Court for the Northern District ofCalifornia. The

Information will charge that beginning on or about July 1, 1999, and continuing until on or about



1 June 15, 2002, Infineon Technologies AG ("Infineon AG"), including its United States-based

2 subsidiary Infineon Technologies North America Corp. ("Infineon NA"), and co-conspirators

3 participated in a conspiracy in the United States and elsewhere to suppress and eliminate

4 competition by fixing the price of dynamic random access memory ("DRAM") to be sold to

5 certain original equipment manufacturers of personal computers and servers ("OEMs"), in

6 violation of the Shennan Antitrust Act, 15 U.S.C. § 1. The Information will further charge that

7 Defendant, an employee of Infineon AG, joined and participated in the charged conspiracy from

8 on or about June 1, 2001, until on or about June 15, 2002.

9 3. Defendant, pursuant to the terms of this Plea Agreement, will plead guilty to the

10 criminal charge described in Paragraph 2 above and will make a factual admission of guilt to the

11 Court in accordance with Fed. R. Crim. P. 11, as set forth in Paragraph 4 below.

12 FACTUAL BASIS FOR OFFENSE CHARGED

13 4. Had this case gone to trial, the United States would have presented evidence to

14 prove the following facts:

15 (a) For purposes of this Plea Agreement, the "relevant period" is that period

16 from on or about June 1, 2001, to on or about June 15, 2002. During the relevant period,

17 Defendant was an employee of Infineon AG, an entity organized and existing under the laws of

18 Germany, with its principal place of business in Munich, Germany. During the relevant period,

19 Defendant was Infrneon AG's Vice President of Sales for Memory Products.

20 (b) DRAM is the most commonly used semiconductor memory product.

21 DRAM provides high-speed storage and retrieval of electronic information in personal

22 computers, servers, and other devices.

23 (c).... --In the course of his employment-for Infineon-AG during the-relevant-

24 .period, Defendant was engaged in the sale ofDRAM in the United States by virtue of his

25 responsibility for supervising the recommendation to his superiors at Infineon AG the minimum

26 price floors for the sale ofDRAM in the United States. Defendant also supervised employees at

27 Infineon AG in Germany in connection with the recommendation of such prices, and, together

28 with those employees, provided those prices to employees of Infineon NA who were engaged in



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the sale ofDRAM in the United States.

(d) During the relevant period, Defendant participated in a pre-existing

I conspiracy in the manner described below, which conspiracy existed in the United States and

elsewhere among certain DRAM producers and their officers and employees. The primary

purpose of the conspiracy was to raise the price ofDRAM sold to certain OEMs. The conspiracy

directly affected these OEMs in the United States: Dell Inc., Hewlett-Packard Company,

Compaq Computer Corporation, International Business Machines Corporation, Apple Computer

Inc., and Gateway, Inc. Defendant participated in the above-referenced conspiracy by engaging

in communications with other DRAM manufacturers, during which information on pricing was

exchanged for the purpose and with the effect of influencing the price of DRAM sold to certain

OEMs. Also during these communications understandings were reached, the effect of which was

to stabilize and raise the price of DRAM sold to certain OEMs. Defendant also recommended to

his superiors that minimum pricing floors for the sale of DRAM to certain OEMs be based on

pricing information obtained by Infineon AG and Infineon NA employees in communication

with competitors.

(e) In addition, during the relevant period Defendant was aware of the

existence of the conspiracy among the employees and officers of Infineon AG, and he knowingly

consented to the participation of one or more of his subordinate employees in that conspiracy.

(f) During the relevant period, DRAM sold by one or more of the conspirators,

equipment and supplies necessary to the production and distribution ofDRAM, and payments for

DRAM, traveled in interstate and foreign commerce. The business activities of Defendant and his

I co-conspirators in connection with the manufacture and sale ofDRAM affected by this

.conspiracy.were'within'theflow of, and substantially affected;-interstate commerce within the-- .. .

United States and foreign trade and commerce with the United States.

(g) Acts in furtherance of this conspiracy were carried out within the Northern

District of California. Furthermore, DRAM affected by this conspiracy was sold by one or more

of the conspirators to customers in the Northern District of California..

i///


Case 5:04-cv-04156-JW . Document 222-3 Filed 04/16/2008 Page 6 of 16

1 POSSIBLE MAXIMUM SENTENCE

2 S. Defendant understands that the maximum penalty which may be

3 imposed against him upon conviction for a violation of Section One of the Sherman Antitrust Act

4 is:

5 (a) a term of imprisonment for three (3) years (15 U.S.C. § 1);

6 (b) a fine in an amount equal to the greatest of (1) $350,000, (2) twice the

7 gross pecuniary gain the conspirators derived from the crime, or (3) twice the gross

8 pecuniary loss caused to the victims of the crime by the conspirators (15 U.S.C. § 1; 18

9 U.S.C. § 3571(b) and (d)); and

10 (c) a term of supervised release of one (1) year following any term of

11 imprisonment. If Defendant violates any condition of supervised release,

12 Defendant could be imprisoned for the entire term of supervised release

13 (18 U.S.C. § 3559(a)(5); 18 U.S.C. § 3583(b)(3) and (e)(3); and U.S.S.G. § 5D1.2(a)(3)).

14 6. . In addition, Defendant understands that:

15 (a) pursuant to U.S.S.G. § 5E1.1, this Court may order him to pay

16 restitution to the victims of the offense; and

17 (b) pursuant to 18 U.S.C. § 30I3(a)(2)(A) and U.S.S.G. § 5E1.3, this

18 Court is required to order Defendant to pay a $100.00 special assessment

19 upon conviction for the charged crime.

20 SENTENCING GUIDELINES ,

21 7. Sentencing for the offense to be charged will be conducted pursuant to

22 the U.S.S.G. Manual in effect on the day of sentencing. Pursuant to U.S.S.G. § 1B1.8, the

23 United States agrees -that self=incriminating-information- that Defendant provides to the United

24 States pursuant to this Plea Agreement will not be used to increase the volume of affected

25 commerce attributable to Defendant or in determining Defendant's applicable sentencing

26 guidelines range, except to the extent provided in U.S.S.G. § 1B1.8(b). The United States and

27 Defendant agree that the U.S. Sentencing Guidelines may be applied and, if applied, the

28 applicable sentencing guidelines is U.S.S.G. § 2R1.1 with a base level of 10, a volume of



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commerce adjustment of plus 7 pursuant to U.S.S.G. § 2R1.1(b)(2)(G); a role in the offense

adjustment of plus 3 pursuant to U.S.S.G. § 3B1.1 for a total of 20, less a 3-level adjustment for

acceptance of responsibility pursuant to U.S. S.G. § 3E1.1(a) and (b), for a total offense level of

17. Further, the United States agrees to make a motion for downward departure pursuant to

Paragraph 10 herein and U.S.S.G. § 5K1.1, recommending that Defendant be sentenced to the

I sentence agreed to below.


8. (a) Pursuant to Fed. R. Crim. P. 11(c)(1)(C), the United States and Defendant

agree that the appropriate disposition of this case is, and agree to recommend jointly that the

Court impose, a sentence requiring that Defendant pay to the United States a criminal fine of

$250,000, pursuant to 15 U.S.C. §1, payable in full before the thirtieth (30`h) day after the date of

judgment; a period of incarceration of 150 days; no order of restitution; and no period of

supervised release ("the recommended sentence"). Defendant understands that this Court will

order him to pay a $100 special assessment pursuant to 18 U.S.C. § 3013(a)(2)(A) and U.S.S.G.

§ 5E1.3 in addition to any fine imposed.

(b) The United States will not object to Defendant's request that the Court

make a recommendation to the Bureau of Prisons that the Bureau of Prisons designate that

Defendant be assigned to a Federal Minimum Security Camp (and specifically to the Lompoc

Prison Camp in Lompoc, California) to serve his sentence of imprisonment and that Defendant

be released on his own personal recognizance following the imposition of sentence to allow him

to self-surrender to the designated institution on a specified date.

(c) The parties also agree that if the U.S. Sentencing Guidelines do not apply,

this Court. in.exercising..its.unfettered..discreti.on..within.the.statutory..limits for. this. offense..should...

impose the same recommended sentence. Nothing in this Agreement shall preclude the United

States from making a motion to reduce Defendant's sentence pursuant to Fed. R. Crim. P. 35(b)

or otherwise, if circumstances so warrant.





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AG, Defendant's employer, including In re DRAM Antitrust Litigation, No. M-02-1486-PJH,

MDL No. 1486, in the United States District Court, Northern District of California, and DRAM

Cases, No. CJC-03-004265, in the Superior Court, San Francisco, California, which potentially

provide for a recovery of a multiple of actual damages.

10. The United States and Defendant agree that the applicable Sentencing

Guidelines fine and incarceration ranges exceed the fine and term of imprisonment contained in

the recommended sentence set out in Paragraph 8 above. Subject to the full and continuing

cooperation of Defendant, as described in Paragraph 13 of this Plea Agreement, and prior to

sentencing in this case, the United States agrees that it will make a motion, pursuant to U.S.S.G.

§ 5K1.1, for a downward departure from the Guidelines sentence in this case. The motion for

downward departure is based on cooperation that has already occurred and any additional

cooperation that may occur prior to sentencing. Furthermore, the United States will request that

this Court impose the fine and term of imprisonment contained in the recommended sentence set

out in Paragraph 8 of this Plea Agreement because of Defendant's substantial assistance in the

government's investigation and prosecutions of violations of federal criminal law in the DRAM

industry. a

11. The United States and Defendant jointly submit that this Plea Agreement and the

i record that will be created by the United States and Defendant at the plea and sentencing hearing





the date of arraignment, based-upon the record provided by Defendant and-the-United States;- - . .

under the provisions of Rule 32(b)(1), Fed. R. Crim. P., U.S.S.G. § 6A1.1, and Criminal Local

Rule 32-1(b). The Court's denial of the request to impose sentence on an expedited schedule

will not void this Plea Agreement. Should the Court deny Defendant's request to impose

sentence on an expedited schedule, the United States agrees that, at the initial appearance or

arraignment, it will recommend the release of Defendant on his personal recognizance and



I without bond, under 18 U.S.C. § 3142, without restriction as to travel , pending the sentencing

2 hearing in this case.

3 12. The United States and Defendant understand that this Court retains complete

4 discretion to accept or reject the recommended sentence provided for in Paragraph 8 of this Plea

5 Agreement.

6 (a) If this Court does not accept the recommended sentence , the United States

7 and Defendant agree that this Plea Agreement, except for Paragraph 12(b) below, shall be

8 rendered void. Neither party may withdraw from this Plea Agreement, however, based on

9 the type or location of the correctional facility to which Defendant is assigned to serve his

10 sentence.

11 (b) If this Court does not accept the recommended sentence, Defendant will be

12 free to withdraw his guilty plea (Fed. R. Crim. P . I I (c)(5) and (d)). If Defendant

13 withdraws his plea of guilty, this Plea Agreement , the guilty plea, and any statement made

14 in the course of any proceedings under Fed . R. Crim . P. 11 regarding the guilty plea or

15 this Plea Agreement or made in the course of plea discussions with an attorney for the

16 government shall not be admissible against Defendant in any criminal or civil proceeding,

17 except as otherwise provided in Fed. R. Evid. 410. In addition, should the Court not

18 accept the Plea Agreement and should Defendant then withdraw his guilty plea, the

19 United States agrees that it will dismiss the Information , without prejudice to the United

20 States' right to indict Defendant on the charge contained in the Information and any other

21 related charges. In addition, Defendant agrees that, if he withdraws his guilty plea

22 pursuant to this subparagraph of the Plea Agreement, the statute of limitations period for

23, any Relevant Offenses as defined in Paragraph . 14 below, will ..be.tolled .. for...the. period...........

24 between the date of the signing of the Plea Agreement and the date Defendant withdrew

25 his guilty plea or for a period of sixty (60) days after the date of the signing of the Plea

26 Agreement, whichever is greater . For a period of three (3) consecutive days following

27 such a withdrawal of the guilty plea under this subparagraph , the United States shall take

28 no action , based upon either a Relevant Offense or any actual or alleged violation of the



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Plea Agreement, to revoke Defendant's release on his personal recognizance, to subject

Defendant to service of process, arrest, or detention, or to prevent Defendant from



13.. Defendant will cooperate fully and truthfully with the United States in the

prosecution of this case, the current federal investigation of violations of federal antitrust and

related criminal laws involving the manufacture or sale ofDRAM, any other federal investigation

resulting therefrom, and any litigation or other proceedings arising or resulting from any such

investigation to which the United States is a party ("Federal Proceeding"). The ongoing, full, and

truthful cooperation of Defendant shall include, but not be limited to:

(a) producing in the United States and at other mutually agreed-

upon locations all non-privileged documents, including claimed personal documents, and

other non-privileged materials, wherever located, in the possession, custody, or control of

Defendant, requested by attorneys and agents of the United States;

(b) making himself available for interviews in the United States

and at other mutually agreed-upon locations, not at the expense of

the United States, upon the request of attorneys and agents of the United States;

(c) responding fully and truthfully to all inquiries of the United

States in connection with any Federal Proceeding, without falsely implicating any person

or intentionally withholding any non-privileged information, subject to the penalties of

making false statements (18 U.S.C. § 1001) and obstruction ofjustice (18 U.S.C. § 1503);

(d) otherwise voluntarily providing the United States with any

non-privileged material or information, not requested in (a) - (c) of this paragraph, that he

may have that is related to any Federal Proceeding; and

(e) when called upon to do so by the United States in connection

with any Federal Proceeding, testifying in grand jury, trial, and other

judicial proceedings in the United States, fully, truthfully, and under oath, subject to the

penalties of perjury (18 U.S.C. § 1621), making false statements or declarations in grand



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jury or court proceedings (18 U.S.C. § 1623), contempt (18 U.S.C. §§ 401 - 402), and

obstruction ofjustice (18 U.S.C. § 1503).


14. Subject to the full, truthful, and continuing cooperation of Defendant, as described

in Paragraph 13 of this Plea Agreement, and upon the Court's acceptance of the guilty plea called

for by this Plea Agreement and the imposition of the recommended sentence, the United States

will not bring further criminal charges against Defendant for any act or offense committed before

the date of this Plea Agreement that was undertaken in furtherance of an antitrust conspiracy

involving the manufacture or sale ofDRAM or undertaken in connection with any investigation

of such a conspiracy ("Relevant Offense"). The nonprosecution terms of this paragraph do not

apply to civil matters of any kind, to any violation of the federal tax or securities laws, or to any

crime of violence.

15. The United States agrees that when Defendant travels to the United States for

interviews, grand jury appearances, or court appearances pursuant to this Plea Agreement, or for

meetings with counsel in preparation therefor, the United States will take no action, based upon

any Relevant Offense, to subject Defendant to arrest, detention, or service of process, or to

prevent Defendant from departing the United States. This paragraph does not apply to

Defendant's commission of perjury (18 U.S.C. § 1621), making false statements (18 U.S.C. §

1001), making false statements or declarations in grand jury or court proceedings (18 U.S.C. §

1623), obstruction ofjustice (18 U.S.C. § 1503), or contempt (18 U.S.C. §§ 401 - 402) in

connection with any testimony or information provided or requested in any Federal Proceeding.

16. (a) Subject to the full and continuing cooperation of Defendant,

as described in Paragraph 13 of this Plea Agreements and upon the Court's acceptance of.-..

Defendant's guilty plea and imposition of sentence in this case, the United States agrees not to

seek to remove Defendant from the United States under Section 240 of the Immigration and

Nationality Act, based upon Defendant's guilty plea and conviction in this case, should

Defendant apply for or obtain admission to the United States as a nonimmigrant (hereinafter

referred to as the "agreement not to seek to remove Defendant"). The agreement not to seek to



1 remove Defendant is the equivalent of an agreement not to exclude Defendant from admission to

2 the United States as a nonimmigrant or to deport Defendant from the United States.

3 (Immigration and Nationality Act, § 240(e)(2)).

4 (b) The Antitrust Division of the United States Department of Justice has.

5 consulted with the United States Immigration and Customs Enforcement of the United States

6 Department of Homeland Security ("ICE"). ICE, in consultation with the United States

7 Department of State, has agreed to the inclusion in this Plea Agreement of this agreement not to

8 seek to remove Defendant.

9 (c) So that Defendant will be able to obtain any nonimmigrant visa that he

10 may need to travel to the United States, ICE and the Visa Office of the United States Department

11 of State, have concurred in the granting of a nonimmigrant waiver of Defendant's

12 inadmissibility. This waiver will remain in effect so long as this agreement not to seek to remove

13 Defendant remains in effect. While the waiver remains in effect, the Department of State will

14 not deny Defendant's application for a nonimmigrant visa on the basis of Defendant's guilty plea

15 and conviction in this case, and ICE will not deny his application for admission as a

16 nonimmigrant on the basis of his guilty plea and conviction in this case.

17 (d) This agreement not to seek to remove Defendant will remain

18 in effect so long as Defendant:

19 (i) acts and has acted consistently with his cooperation obligations

20 under this Plea Agreement;

21 (ii) is not convicted of any felony under the laws of the United States

22 or any state, other than the conviction resulting from Defendant's

23 ............................................ guilty plea under this Plea Agreement or any conviction...under...the ...

24 laws of any state resulting from conduct constituting an offense

25 subject to this Plea Agreement; and

26 (iii) does not engage in any other conduct that would warrant his

27 removal from the United States under the Immigration and

28 Nationality Act.



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Defendant understands that should the Antitrust Division become aware that Defendant

has violated any of these conditions, the Antitrust Division will notify ICE. ICE will then

determine, in consultation with the Antitrust Division, whether to move to rescind this agreement

not to seek to remove Defendant.

(e) Defendant agrees to notify the Assistant Attorney General of the Antitrust

Division should Defendant be convicted of any other felony under the laws of the United States

or of any state.

(f) Should the United States rescind this agreement not to seek to remove

Defendant because of Defendant's violation of a condition of this Plea Agreement, Defendant

irrevocably waives his right to contest his removal from the United States under the Immigration

and Nationality Act on the basis of his guilty plea and conviction in this case, but retains his right

to notice of removal proceedings.

17. Defendant understands that he may be subject to administrative action by federal,

state or foreign agencies other than the United States Department of Justice, Antitrust Division,

based upon the conviction resulting from this Plea Agreement, and that this Plea Agreement in

no way controls whatever action, if any, other agencies may take. However, the United States

agrees that, if requested, it will advise the appropriate officials of any governmental agency

considering such administrative action of the fact, manner, and extent of the cooperation of

Defendant as a matter for that agency to consider before determining what administrative action,

if any, to take.


18. Defendant has reviewed all legal and factual aspects of this case with his attorney

and is fully satisfied with his attorney's legal representation Defendant liar thoroughly reviewed

this Plea Agreement with his attorney and has received satisfactory explanations from his

attorney concerning each paragraph of this Plea Agreement and alternatives available to

Defendant other than entering into this Plea Agreement. After conferring with his attorney and

considering all available alternatives, Defendant has made a knowing and voluntary decision to

enter into this Plea Agreement.


Case 5:04-cv-04156-JW Document 222-3 . Filed 04/16/2008 Page 14 of 16

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VOLUNTARY PLEA

19. Defendant's decision to enter into this Plea Agreement and to tender a plea of

guilty is freely and voluntarily made and is not the result of force, threats, assurances, promises,

or representations other than the representations contained in this Plea Agreement. The United

States has made no promises or representations to Defendant as to whether this Court will accept

or reject the recommendations contained within this Plea Agreement.


20. Defendant agrees that,- should the United States determine in good faith, during the




counsel in writing by personal or overnight delivery or facsimile transmission and may also


Agreement (except its obligations under this paragraph), and Defendant shall be subject to

prosecution for any federal crime of which the United States has knowledge including, but not


Defendant may seek Court review of any determination made by the United States under this






wider .this Plea Agreenient....................................................................................:...........................

.21. • Defendant understands and agrees that in any further prosecution

of him resulting from the release of the United States from its obligations under this Plea

Agreement based on Defendant's violation ofthe Plea Agreement, any documents, statements,


federal grand juries, or courts, and any leads derived therefrom, may be used against him in any



I such further prosecution. In addition , Defendant unconditionally waives his right to challenge

2 the use of such evidence in any such further prosecution, notwithstanding the protections of Fed.

3 R. Evid. 410.

4 22. Defendant agrees to and adopts as his own the factual statement contained in

5 Paragraph 4 above . In the event that Defendant breaches the Plea Agreement, Defendant agrees

6 that the Plea Agreement, including the factual statement contained in Paragraph 4 above,

7 provides a sufficient basis for any possible future extradition request that may be made for his

8 return to the United States to face charges either in the Information referenced in Paragraph 2 of

9 this Plea Agreement or in any related indictment . Defendant further agrees not to oppose or

10 contest any request for extradition by the United States to face charges either in the Information

11 referenced in Paragraph 2 of this Plea Agreement or in any related indictment.

12 ENTIRETY OF AGREEMENT

13 23. This Plea Agreement constitutes the entire agreement between the

14 United States and Defendant concerning the disposition of the criminal charge in this case. This

15 Plea Agreement cannot be modified except in writing, signed by the United States and

16 Defendant..

17 24. The undersigned attorneys for the United States have been authorized by the

18 Attorney General of the United States to enter this Plea Agreement on behalf of the United

19 States.

20 III

21 Ili

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23.........l.l .........................................................................................................................................................

24

25 III

26 /1/

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25. A facsimile signature shall be deemed an original signature for the purpose of

executing this Plea Agreement. Multiple signature pages are authorized for the purpose of

executing this Plea Agreement.

DATED: NovemberL^ 2004

BY: 11 2 1

Deft

IJ D. VandeveldeJ hn S . CrouchleyLightfoot , Vandevelde , SadowskyMedvene & Levine655 South Hope Street, 13"' FloorLos Angeles , CA 90017-3211

Respectfully submitted,

is E. ync 15 59)Eugene S. Litvi ff (CSBN 214318)Nathanael M. Cousins (CSBN 177944)U.S. Department of JusticeAntitrust Division450 Golden Gate AvenueRoom 10-0101, Box 36046Tel: (415) 436-6660Fax: (415) 436-6687



Exhibit C


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....... ....... 23.

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NIALL E. LYNCH (CSBN 157959)EUGENE S. LITVINOFF (CSBN 214318)NATHANAEL M. COUSINS (CSBN 177944)U.S. Department of JusticeAntitrust Division450 Golden Gate AvenueRoom 10-0101, Box 36046San Francisco, CA 94102Telephone: (415) 436-6660




SAN FRANCISCO DIVISION.


Plaintiff, Case No. CR 04-0397 PJHV.

PLEA AGREEMENTPETER SCHAEFER,

Defendant.

PLEA AGREEMENT

The United States of America and Peter Schaefer ("Defendant") hereby enter into the

following Plea Agreement pursuant to' Rule I1(c)(1)(C) of the Federal Rules of Criminal


RIGHTS OF DEFENDANT



.............. (b)...........to-bc-'charged.by-Indictment;- ......................_.............._... ..... ....................... .................

(c) to plead'not guilty to any criminal charge brought against him;



the United States to prosecute this case against him in the United States District- Court for


PLEA AGREEMENT -- SCHAEFER - PAGE 1


1 (e) to have a trial by jury, at which he would be presumed not

2 guilty of the charge and the United States would have to prove every essential element of

3 the charged offense beyond a reasonable doubt for him to be found guilty,

4 (1) to confront and cross-examine witnesses against him and to

5 subpoena witnesses in his defense at trial;

6 (g) not to be compelled to incriminate himself;

7 (h) to appeal his conviction; and

8 (i) to appeal the imposition of sentence against him.

9 AGREEMENT' TO PLEAD GUILTYAND WAIVE CERTAINRIGHTS

102. Defendant waives the rights set out in Paragraph 1(b)-(h) above, including all

11jurisdictional defenses to the prosecution of this case, and agrees voluntarily to consent to the

12jurisdiction of the United States to prosecute this case against him in the United States District

13r,..... r.. pL.. *r ^1........ r^: •.; «' F is F,..,. , r^eF ,a ...* .ova.... t, ,,.e t.; . ,....,:e...,e aese...:.-a

under the United States Sentencing Guidelines ("U.S.S.G .") and.waives all constitutional15

challenges to the validity of the U.S.S.G . Defendant waives any right he may have to have facts16

that determine his Guidelines fine and imprisonment ranges under the U. S.S.G. (including any17

facts used to determine his offense level, volume of commerce, any specific offense characteristic18

or other enhancement or adjustment under the U.S.S.G.) alleged in an indictment and found by a19

jury beyond a reasonable doubt . Defendant also waives the right to appeal the imposition of the,20

sentence against him , so long as the sentence imposed is consistent with the recommended21

sentence contained in Paragraph 8 of this Plea Agreement . Defendant also waives the right to22

'file any collateral attack on his conviction or sentence , including a petition under 28 U.S.C. §.............................................

2255, at any time after he is sentenced , except for a claim that his constitutional right to the24

.effective assistance of counsel was violated . Further, pursuant to Fed. R. Crim. P. 7(b),25

Defendant will waive Indictment and plead guilty at arraignment to a one-count Information to26

be filed in the United States District Court for the Northern District of California. The27

Information will charge that beginning on or about July 1, 1999, and coritinuing until on or about28


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June 15, 2002, Infineon Technologies AG ("Infineon AG"); including its United States-based

subsidiary Infineon Technologies North America Corp. ("Infineon NA"), and co-conspirators

participated in a conspiracy in the United States and elsewhere to suppress and eliminate

competition by fixing the price of dynamic random access memory ("DRAM") to be sold to

certain original equipment manufacturers ofpersonal computers and servers ("OEMs"), in

violation of the Sherman Antitrust Act, 15 U.S.C. § 1. The Information will further charge that

Defendant, an employee of Infineon NA, joined and participated in the charged conspiracy from

on or about April 26, 2001, until on or about June 15, 2002.

3. Defendant, pursuant to the terms of this Plea Agreement, will plead guilty to the

criminal charge described in Paragraph- 2 above and will make a factual admission of guilt to the

Court in accordance with Fed. It Crim. P. 11, as set forth in Paragraph 4 below.


4. Had this case gone to trial, the United States would have presented evidence to

(a) For purposes of this Plea Agreement, the "relevant period" is that period from

on or about April 26, 2001, to on or about June 15, 2002. During the relevant period, Defendant

was an employee of Infneon NA, an entity organized and existing under the laws of the state of

Delaware with its principal place ofbusiness in San Jose, California. During at least a portion of

the relevant period, Defendant's title at Infineon NA was Vice President for Marketing, Sales &

Logistics for Memory Products.

(b) DRAM is the most commonly used semiconductor memory product. DRAM

provides- high-speed storage and retrieval ofelectronic information in.personal computers,

servers ;..Arid other"devices:.._ in..th.u course-of-his--employment for-Infineon N ..during...at..least..a....-.

portion of the relevant period , Defendant had certain responsibilities relating to the marketing

and sale ofDRAM in the United States and also had certain supervisory responsibilities over

other employees who had certain responsibilities relating-to the sale ofDRAM in the United .

States.

(c) During the relevant period, Defendant participated, to the extent described



1 below, in a pre-existing conspiracy in the United States and elsewhere among certain DRAM

2 producers and their officers and employees. The primary purpose of the conspiracy was to fix

3 the price of DRAM sold to certain OEMs. The conspiracy directly affected these OEMs in the

4 United States: Dell Inc., Hewlett-Packard Company, Compaq Computer Corporation,

5 International Business Machines Corporation, Apple Computer Inc., and Gateway, Inc. In

6 furtherance of the conspiracy, Defendant participated in communications with representatives of

7 other DRAM producers and sellers during which information on pricing was exchanged,. The

8 purpose was ultimately achieved,ose of these communications was to reach an understanding;

9 to raise or stabilize the price of DRAM to certain. OEMs.

10 (d) In addition during the relevant period Defendant was aware ofthe existence

11 of the conspiracy among the employees of Infineon NA, and he consented to the participation of

12 one or more of his subordinate employees in that conspiracy. }

13 (e) During the relevant period, DRAM sold by one or more of the conspirators,

14 equipment and supplies necessary to the production and distribution of DRAM, and payments for

15 DRAM, :traveled in interstate and foreign commerce. The business activities of Defendant and

16 his co-conspirators in connection: with the production and sale. ofDRAM affected by this

17 conspiracy were within the flow of, and substantially affected, interstate and foreign trade and

18 commerce.

19 (f) Acts in furtherance of this conspiracy were carried outwithin the Northern

20 District of California. Furthermore, DRAM affected bythis conspiracy was sold by one or more

21 of the conspirators to customers in this District.

22 POSSJBLE'MAXIMUM SENTENCE

..23 S. 'Defendant understands•'thatTthe'maximum'penalty which may be

24 imposed against him upon conviction for a violation of Section One of the Sherman Antitrust


1 pecuniary loss caused to the victims of the crime by the conspirators (15 U.S.C.§ 1; 1$

2 U.S.C. § 3571(b) and (d)); and

3 (c) a term of supervised release of one (1) year following anyterm of

4. imprisonment . If Defendant violates any condition of supervised release,

5 Defendant could be imprisoned for the entire term of supervised release

6 (18 U S.C. § 3559(a)(5); 18 U.S.C. § 3583(b)(3) and (e)(3); and U.S.S.G. § 5D 1.2(a)(3)).

7 6. In addition , Defendant understands that;

8 (a) pursuant to U.S.S.G. § 5E1.1, this Court may order him to pay

9 restitution to the victims of the offense; and

10 (b) pursuant to 18 U.S.C. § 3013(a)(2)(A) and U.S.S.G. § 5E1.3, this

11 Court is required to orderDefendanf to pay a $100.00 special assessment

12 upon conviction for the charged crime.

13 SENTENCING GUIDELINES

az , . _ v uw,. .b ava u... ^.u.-..w .., .... v.«..b ..w^...^ ............:r.........- ._ -.._

15 the U.S.S.G. Manual in effect on the day of sentencing. Pursuant to U.S.S.G. § 1B1 .8,the

16 United States agrees that self-incriminating information that Defendant provides to the United

17 States pursuant to this Plea Agreement will not be used to increase the volume of affected

18 commerce attributable to Defendant or in determining Defendant's applicable sentencing

19 guidelines range, except to the extent provided in U.S.S.G. § 1B1.8(b). The United States and

20 Defendant agree that the U. S. Sentencing Guidelines may be applied and, if applied, the

21 applicable sentencing guideline is U.S.S.G. § 2R1.1 with a base level off0, a. volume of

22 commerce adjustment ofplus seven pursuant to U.S.S.G. § 2R1:1(b)(2)(.G); for a total of 17, less

23 a 3-level ad'ustment for accep tance of resPonsibility ursuant to U.S.S.G: 3'E'1:1' a aril b 1a'r"'J § OP

24 a total offense level of 14. Further, the United States agrees to make a motion for downward

25 departure pursuant to Paragraph 10 herein and U.S.S.G. § 5K1.1, recommending that Defendant

26 be sentenced to the sentence agreed to below.

27 •///

28



1 SENTENCTNQ AG-RFEMENT

2 8. . (a) Pursuant to Fed. R. Crim. P. 11(e)(1)(C), the United States and Defendant

3 agree that the appropriate disposition of this case is , and agree to recommend jointly that the

4 Court impose, a sentence requiring that Defendant pay to the United States a criminal fine of

5 $250,000, pursuant to 15 U.S.C. § 1, payable in full before the thirtieth ( 30`h) day after the date of

6 judgment; a period of incarceration of 120 days; no order of restitution; and no period of

7 supervised release (`the recommended sentence"). Defendant understands that this Court will

8 order him to. pay a $100 special assessment pursuant to 18 U.S.C. § 3013(a)(2)(A) and U.S.S.G.

9 § 5E 1,3 : in addition to any fine imposed.

10 (b) The United States will not object to Defendant's request that the Court

I t make a recommendation to the. Bureau of Prisons that the Bureau of Prisons designate that

12 Defendant be assigned to a Federal Minimum Security Camp (and specifically to the Lompoc

13 , Prison Camp in Lompoc, California) to serve his sentence ofimprisonment and that Defendant.

14 be released on his own personal recognizance following the imposition ofsentence to allow him

15, to self-surrender to the designated institution on a specified date.

16 (c) The parties also agree that if the U.S. Sentencing Guidelines do not apply,

17 this Court in exercising its unfettered discretion within. the statutory limits for this offense should

18 impose the same recommended sentence . Nothing in this Agreement shall preclude the United

19 States from making ' a motion to reduce Defendant ' s sentence pursuant to Fed. A. Crim.-P. 35(b)

20 or otherwise, if circumstances ' so warrant.

21 9. The United States and Defendant agree that, pursuant to U.S.S.G.' § 5E1.1(b),

22 Defendant should not be ordered to pay restitution in light of the civil cases filed against Infineon

23 -NA;.-Defendant's-.employer; includingln re DRAM Antitrust Litigation, No. M-02-1486-P.JB,

24 MDL No. 1.486, in the United States District Court, Northern District of California, and DRAM


I the recommended sentence set out in Paragraph 8 above. Subject to the full and continuing

2 cooperation of Defendant, as described in Paragraph 13 of this Plea Agreement, and prior to

3 sentencing in this case, the United States agrees that it will make a motion, pursuant to U.S.S.G.

4 § 5K1.1, for a downward departure from the Guidelines sentence in this case. The motion for

5 downward departure is based on cooperation that has already occurred and any additional

6 cooperation that may occur prior to sentencing. Furthermore, the United States will request that

7 this Court impose the fine and term of imprisonment contained in the recommended sentence set

8 out in Paragraph 8 of this Plea Agreement because of Defendant's substantial assistance in the

:9 government's investigation and prosecutions of violations of federal criminal law in the DRAM

10 industry.

11 11. The United States and Defendant jointly submit that this Plea Agreement, the

12 record that will be created by the United States and Defendant at the plea and sentencing hearing,

13 will provide sufficient information concerning Defendant, the offense charged in this case, and

14 Defendant's role in the offense to enable the meaningful exercise of sentencing authority by this

15 Court under 18 U.S.C. § 3553. The United States will not object to Defendant's request that this

16 Court accept Defendant's plea of guilty and impose sentence on an expedited schedule as early as

17 the date of arraignment, based upon the record provided by Defendant and the United States,

18 under the provisions of Rule 32(b)(1), Fed: R. Crim. P., U.S.S.G. § 6A1.1, and Criminal Local

19 Rule 32-1(b). The Court's denial of the request to impose sentence on an expedited schedule

20 will not void this Plea Agreement. Should the Court deny Defendant's request to impose

21 sentence on an expedited schedule, the United States agrees that, at the initial appearance or

22 arraignment, it will recommend the release of Defendant on his personal recognizance and

23- -without-bondi under°l-8-U:S:C: §-3142;-without restriction as totravel;-pending°the sentencing... ••..

24 hearing in this case. .

25 12. The United States and Defendant understand that this Court retains complete

26 discretion to accept or reject the recommended sentence provided for in Paragraph 8 of this Plea

27 Agreement.

28 (a) If this Court does not accept the recommended sentence, the United States



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sentence.


free to withdraw his guilty plea (Fed. R. Crim. P. 1 I(c)(5) and (d)). If Defendant

withdraws his plea of guilty, this Plea Agreement, the guilty plea, and any statement made

in the course of any proceedings under Fed. R. Crim. P. I I regarding the guilty plea or

this Plea Agreement or made in the course of plea discussions with an attorney for the

government shall not be admissible against Defendant in any criminal or civil proceeding,

except as otherwise provided in Fed. R. Evid. 410, In addition, should the Court not

accept the Plea Agreement and should Defendant then withdraw his guilty plea, the

United States agrees that it will dismiss the Information, without prejudice to the United

1^^..^e..^ .. ,.ki ......A ..+ T1eFe.. A ...,+ ..., .., ..t...«..e ......F..:.. e.i :.. r4 T.,C.,...,+:..« .....7 .. ..at.e..

related charges. In addition; Defendant agrees that, if he withdraws his guilty plea

pursuant to this subparagraph ofthe Plea Agreement, the statute of limitations period for

any Relevant Offense, as defined in Paragraph 14 below, will. be tolled for the period

between the date of the signing of the Plea Agreement and the date Defendant withdrew

his guilty plea or for a period of sixty (60) days after the date of the signing of the Plea

Agreement, whichever is greater. For a period of three (3) consecutive days following

such a withdrawal of the guilty plea under this subparagraph, the United States shall take

no action, based upon either a Relevant Offense or any actual or alleged violation of the

.............. leaAgreerrierit, to.fevokeDefendant's release onFiis peisona..4e66gn.izance, to subj'ect..

Defendant to service ofprocess, arrest, or detention, or to prevent Defendant from



13. . Defendant will cooperate fully and truthfully with the United States in the

prosecution of this case, the current federal investigation of violations of federal antitrust and



1 related criminal laws involving the manufacture or sale of DRAM, any other federal investigation

2 resulting therefrom,.and any litigation or otherproceedings arising or resulting from any such

3 investigation to which the United States is a party (``Federal Proceeding"). The ongoing, full, and

4 truthful cooperation ofDefendant shall include, but not be limited to:

5 (a) producing in the United States and at other mutually agreed-

6 upon locations all non-pri vileged documents, including claimed personal documents, and

7 other non-privileged materials, wherever located, in the possession, custody, or control of

8 Defendant, requested by attorneys and agents of the United States;

9 (b) makitrg himself available for interviews in the United States

1.0 and at other mutually agreed-upon locations, not at the expense of

11 the United States; upon the request of.attorneys and agents of the United.States;

12 (c) responding fully and truthfully to all inquiries of the United

13 States in connection with any Federal Proceeding, without falsely implicating any person

14 or intentionally withholding any non-privileged information, subject to the penalties of

15 making false statements (18 U.S.C. § 1001) and obstruction ofjustice (18 U.S.C. § 1503);

16 (d) otherwise voluntarily providing the United States with any

17 non-privileged material or information, not requested in (a) - (c) of this paragraph, that he

18 may have that is related to any Federal Proceeding; and

19 (e) when called upon to do so by the United States in connection

20 with any 'Federal Proceeding, testifying in grand jury, trial, and.other

21 judicial proceedings in the United States, fully, truthfully, and under oath, subject to the

22 penalties of perjury (18 U.S.C. § 1621), making false statements or declarations in grand

23..: ....... .....fury„or,courtproceedings (18 ^J S.:G; § 1623), contempt (1,8 1,3.5.!. . §§ 401; 4W),pod

24 obstruction .of justice (18U,S.C. § 1503).

25 GOVERNMENT'S AGRFEMENT

26 14. Subject to the full, truthful, and continuing cooperation of Defendant, as described

27 in':Paragraph 13 of this Plea Agreement, and upon the Court's acceptance of the guilty plea called

28 forby this Plea Agreement and the imposition of the recommended sentence, the United States



I will not bring further criminal charges against Defendant for any actor offense committed before

2 the date of this Plea Agreement that was undertaken in furtherance of an antitrust conspiracy

3 involving the manufacture or sale ofDRAM or undertaken in connection with any investigation

4 of.such . a conspiracy ("Relevant Offense"). The nonproseeution terms of this paragraph do not

5 apply to civil matters of any kind , to any violation of the federal tax or securities laws, or to any

6 crime ofviolence .

7 15. The United States agrees that when Defendanttravels to the United. States for

8 interviews, grand jury appearances , or court appearances pursuant to this Plea Agreement, or for

9 meetings with counsel in preparation therefor, the United States will take no action, based upon

10 anyRelevant Offense, to subject Defendant to arrest , detention , or service ofprocess,: or to

11 prevent Defendant from departing the United States . This paragraph does not apply to

12 Defendant' s commission of perjury (18 U.S.C. § 1621), making false statements (18 U.S_C.

13 1001 ), making false statements ordeclarations in grand jury or court proceedings ( 18 U.S.C.

14 1623), obstruction ofjustice ( 18 U.S.C. § 1503 ), or contempt (18 U.S.C. §§ 401 - 402) in

15 connection with any testimony or information provided or requested in any Federal Proceeding.

16 16. (a) Subject to the fW1 and -continuing cooperation of Defendant,

17 as described in Paragraph 13 of this Plea Agreement , and upon the Court' s acceptance of

18 Defendant ' s guilty plea and imposition of sentence in this case , the United States agrees not to

19 seek to remove Defendant from the United States under Section 240 of the Immigration and

20 Nationality Act, based upon Defendant ' s guilty plea and conviction in this case , should

21 Defendant apply for or obtain admission tc the United States as a nonimmigrant (hereinafter

22 referred to as the "agreement not to seek to remove Defendant"). The agreement not to seek to

23.° -.remove.Defendant is the-equivalent -o€an,agreemeritnot • to-exelude.Dcferidant-from adm.ission.to

24 the United States asia nonimmigrant or to deport Defendant from the United States.

25. (Immigration and Nationality Act, § 240(e)(2)).

26 (b) The Antitrust Division of the United States Department of Justice has

27 consulted with the United States Immigration and Customs Enforcement office of the United

28 States Department of Homeland Security ("ICE"). The ICE, in consultation with the United



If

1 States Department of State, has agreed to the inclusion in this Plea Agreement of this agreement

2 not to seek to remove Defendant.

3 (c) So that Defendantwill be able to obtain any nonimmigrant visa that he

4 may need to travel, to the United States, the ICE and the Visa Office of theUnited States

5 Department of State, have concurred in the granting of a nonimmigrant waiver of Defendant's

6 inadmissibility. This waiver will remain in effect so long as this agreement not to seek to remove

7 Defendant remains in effect. While the waiver remains in effect, the Department of State will

8 not deny Defendant's application for a nonimmigrant visa on the basis of Defendant's guilty plea

9 and conviction in this case, and the ICE will not deny his application for admission as.a

10 nonimmigrant on the basis of his guilty plea and conviction in this case,

t l (d) This agreement not to seek to remove Defendant will remain

.12 in effect so long as Defendant:

13 (i) acts and has acted consistently with his cooperation obligations

14 under this Plea Agreement;

1'5 (ii) is not convicted of any felony under the laws of the United States

16 or any state, other than the.conviction resulting from Defendant's

17 guilty plea under this Plea Agreement or any conviction under the

18 laws of any state resulting from conduct constituting an offense

19 subject to this Plea Agreement;. and

20 (iii) does not engage in any other.conduct that would warrant his

21 removal from the United States under the Immigration and

22 Nationality Act.

23. ....... ... . .. • ' Defendant-vnderstands`thatshould the' Antitrust Division-become aware that Defendant

24 has violated any of these conditions, the Antitrust Division will notify the ICE. The ICE will

25 then determine, in consultation with the Antitrust Division, whether to move to rescind this

26 agreement not to seek to remove Defendant.

27 (e) Defendant agrees to notify the Assistant Attorney General of the Antitrust

28 Division should Defendant be convicted of any other felony under the laws of the United States



I or of any state.

2 (f) Should the United States rescind this agreement not to seek to remove

3 Defendant because of Defendant's violation of a condition of this Plea Agreement, Defendant

4 irrevocably waives his right to contest his removal from the United States under the Immigration

5 and Nationality Act on the basis of his guilty plea and conviction in this case, but retains his right

b to notice of removal proceedings.

7 17: Defendant understands that he may be subject to administrative action by federal,

8 state or foreign agencies other than the United States Department of Justice, Antitrust Division,

9` based upon the conviction resulting, from this Plea Agreement, and that this Plea Agreement in

10 no way controls whatever action,.if any, other agencies . may take . However, the United States

11 agrees that , if requested, it will advise the appropriate officials of any governmental agency

12 considering such , administrative action of the fact, manner, and extent of the cooperation of

13 Defendant as a matter for that agency to consider before determining what administrative action,

14 if any, to take.

15 REPRESENTATION BY COUNSEL

Defendant has reviewed all legal and factual aspects of this case with his attorney16. 19

17 and is fully satisfied with his attorney's legal representation . Defendant has thoroughly reviewed

18: this Plea Agreement with his attorney and has received satisfactory explanations from his:

19 attorney concerning each paragraph of this Plea Agreement and alternatives available to

20.. Defendant other than entering into this Pica Agreement. After conferring with his attorney and

21 considering all available alternatives, Defendant has made a knowing and voluntary decision to

22 enter into.this Plea Agreement.

.23- ... ......... .....:.... :..... VOLUNTARY PLEA_

24 19. Defendant ' s decision to enter into this Plea Agreement and to tender a plea of

25 guilty is freely and voluntarily made and is not the result of force, threats, assurances , promises,

26 or representations other than the representations contained in this Plea Agreement . The Unitedt

27 States has made no prom i ses or representations to Defendant as to who this Court will acce

pt

28. or reject the recommendations contained within this Plea Agreement.

PLEA AGREEMENT --' SCHAEFER - PAGE 12

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Case 5:04-cv-04156-JW Document 222-4 Filed 04/16/2008

VIOLATION OF PLEA AGREEMEN

Page 14 of 15





counsel in writing by personal or overnight delivery or facsimile transmission and may also.


Agreement (except its obligations under this paragraph); and Defendant shall be subject to

prosecution for any federal crime of which the United States has knowledge includ ng, but not


Defendant may seek Court review of any detennination made by the United States under this






under this Plea Agreement.

21, Defendant understands and agrees that in any further prosecution

of him resulting from the release of the United States from its obligations under this Plea

Agreement based on Defendant's violation of the Plea Agreement, any documents, statements,


federal grand juries, or courts, and any leads derived therefrom, may be used against him in any

..such. further..prosecution.'...In.addition,.Defendant .unconditionally..waiv.es..his.right..to.challenge..........

the use of such evidence in any such further prosecution, notwithstanding the protections of Fed.

R. Evid. 410.

22. Defendant agrees to and adopts as his own the factual statement contained in

Paragraph 4 above. In the event that Defendant breaches the Plea Agreement , Defendant agrees

that the Plea Agreement, including the factual statement contained in Paragraph 4 above,



I provides a sufficient basis for any possible future "tradition request that may be made for his

2 return to the ,United States to face charges either in the Information referenced in Paragraph 2 of

3 this Plea Agreement or in any related indictment. Defendant further agrees not to,oppose or .

4 contest any-request for extradition by the United States to face charges either in the Information'

5 referenced in Paragraph 2 ofthis Plea Agreement or in any related indictment.

6 ENTIRETY O AGREEMENT

7 23. This Plea Agreement constitutes the entire agreement between the

8 United States and Defendant concerning the disposition of the criminal charge in this case. This

9 Plea Agreement cannot be modified except in writing, signed by the United States and

10 'Defendant.

24 The undersigned attorneys for the United States have been authorized by the

12 Attorney Genevttl of the United States to enter this Plea Agreement on behalf of the United

13 States.

14 25. k facsimile signature shall be deemed an original signature for the purpose of

15 executing this Pleat Agreement: Multiple signature pages are authorized for the purpose of

16 executing this . Plea Agreement.

17

18 DATED: November2 2004 Respectfully submitted,

--^19

20

21 Peter Schaef to c 9)Defendant ugene S. Li NI (CSBN 214318)

22 Nathaniel M. Cousins (CSBN 177944)U.S Depar ment of justice

23 1 Fir AntitruatDivisionoun e or D e fendant 450 Golden Gate Avenue

24 Michael J. Shepard ............... Room-10 0I0l,-Box 36046 ...............Neil A. F. Popovic Tel. (4l$) 436-6660

25 Heller Ehrman White & McAuliffe. LLP Fax: (415) 436-6687333 Bush Street

26 San Francisco, CA 94104

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I

7


Exhibit D


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(st

NIALL E. LYNCH (CSBN 157959)EUGENE S . LITVINOFF (CSBN 214318)NATHANAEL M. COUSINS (CSBN 177944)U.S. Department of JusticeAntitrust Division450 Golden Gate AvenueRoom 10-0101, Box 36046San Francisco, California 94102Telephone : (415) 436-6660





UNITED STATES OF AMERICA,

Plaintiff,V.

Case No. CR 04-0397 PJH

PLEA AGREEMENT

T. RUDD CORWIN,

Defendant.

PLEA AGREEMENT

The United States of America and T. RUDD CORWIN ("Defendant") hereby enter into the

following Plea Agreement pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure

("Fed. R. Crim. P."):

RIGHTS OF DEFENDANT

1. Defendant understands his rights:


(b) to be charged by Indictment;


(d) to have a trial by jury, at which he would be presumed not



PLEA AGREEMENT - CORWIN

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r= a; ^&

(e) to confront and cross-examine witnesses against him and to


(f) not to be compelled to incriminate himself;

(g) to appeal his conviction; and

(h) to appeal the imposition of sentence against him.

AGREEMENT TO PLEAD GUILTYAND WAIVE, CERTAIN RIGHTS

2. Defendant waives the rights set out in Paragraph 1(b)-(g) above, Defendant agrees

to have his sentence determined under the United States Sentencing Guidelines ("U.S.S.G.") and

waives all constitutional challenges to the validity of the U. S.S.G. Defendant waives any right he

may have to have facts that determine his Guidelines fine and imprisonment ranges under the

U.S.S.G. (including any facts used to determine his offense level, volume of commerce, any

specific offense characteristic or other enhancement or adjustment under the U.S.S.G.) alleged in an

indictment and found by a jury beyond a reasonable doubt. Defendant also waives the right to

appeal the imposition of the sentence against him , so long as the sentence imposed is consistent

with the recommended sentence contained in Paragraph 8 of this Plea Agreement. Defendant also

waives the right to file any collateral attack on his conviction or sentence, including a petition under 1

28 U.S.C. § 2255, at any time after he is sentenced, except for a claim that his constitutional right to

the effective assistance of counsel was violated. Further, pursuant to Fed. R. Crim. P. 7(b),

Defendant will waive indictment and plead guilty at arraignment to a one-count Information to be

filed in the United States District Court for the Northern District of California. The Information

will charge that beginning on or about July 1, 1999, and continuing until on or about June 15, 2002,

Infineon Technologies AG ("Infineon AG"), including its United States-based subsidiary Infineon

Technologies North America Corp. ("Infineon NA"), and co-conspirators participated in a

conspiracy in the United States and elsewhere to suppress and eliminate competition by fixing the

price of dynamic random access memory ("DRAM") to be sold to certain original equipment

PLEA AGREEMENT - CORWIN 2


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manufacturers of personal computers and servers ("OEMs"), in violation of the Sherman Antitrust

Act, 15 U.S.C. § 1. The Information will further charge that Defendant, an employee of Infineon

NA and its predecessor company, joined and participated in the charged conspiracy during the

period from on or about July 1, 1999, until on or about June 15, 2002.

3. Defendant, pursuant to the terms of this Plea Agreement, will

plead guilty to the criminal charge described in Paragraph 2 above and will make a factual

admission of guilt to the Court in accordance with. Fed. R. Crim. P. 11, as set forth in Paragraph 4

below.


4. Had this case gone to trial, the United States would have presented

evidence to prove the following facts:

(a) For purposes of this Plea Agreement, the "relevant period" is that period from

on or about July 1, 1999, to on or about June 15, 2002. From July 1, 1999, to in or about

October 1999, Defendant was a Director of Customer Marketing and Sales for the Memory

Products Division of Siemens Microelectronics, Inc. From in or about October 1999 until

October 2000, Defendant had the same job title, but the name of his corporate employer

changed to Infineon NA. From in or about October 2000 to January 2002, the Defendant was

Vice President for Customer Marketing and Sales for Memory Products in North America for

Infineon NA. From in or about January 2002 to June 15, 2002, Defendant was Vice President

of Sales, Computing Segment, for Infineon. NA. Infineon NA is an entity organized and

existing under the laws of Delaware and with its principal place of business in San Jose,

California, and its predecessor Siemens Microelectronics, Inc., was an entity organized and

existing under the laws of Delaware and with its principal place of business in San Jose,

California. During the relevant period, Siemens Microelectronics, Inc., was a wholly-owned

subsidiary of Siemens AG, an entity organized and existing under the laws of the Federal

Republic of Germany ("Germany"), with its principal place of business in Munich, Germany;

I PLEA AGREEMENT - CORWIN 3


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Infineon NA was a wholly-owned subsidiary of Infineon AG, an entity organized and existing

under the laws of Germany, with its principal place of business in Munich, Germany.

(b) 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. In the course of his employment for Infineon NA and its predecessor during the

relevant period, Defendant was engaged in the sale of DRAM in the United States and also directly

supervised other employees engaged in the sale ofDRAM in the United States.

(c) During the relevant period, Defendant participated in a conspiracy in the manner

described below, which conspiracy existed in the United States and elsewhere among certain

DRAM producers and their officers and employees. The primary purpose of the conspiracy was to

raise the price of DRAM sold to certain OEMs. The conspiracy directly affected these OEMs in the

United States: Dell Inc., Hewlett-Packard Company, Compaq Computer Corporation, International

Business Machines Corporation, Apple Computer Inc., and Gateway, Inc. In furtherance of the

conspiracy, Defendant knowingly authorized, requested and consented to the participation of one or

more subordinate employees in the conspiracy in the respects described below. The subordinate

employees obtained from competitors the future pricing information of the competitors for DRAM

to be sold to certain OEMs. Defendant understood that this competitor pricing information was

sometimes obtained by the subordinates in exchange for Infineon pricing information for DRAM.

Defendant also authorized, requested and consented to the subordinates providing this competitor

pricing information to Defendant's superiors, as Defendant himself sometimes did. Defendant

knew that the consequence of providing this information to Infineon's pricing decision-makers

probably would be to stabilize or raise the price for DRAM sold to certain OEMs.

(d) During the relevant period , DRAM sold by one or more of the conspirators,

1 equipment and supplies necessary to the production and distribution of DRAM, and payments for

DRAM, traveled in interstate and foreign commerce. The business activities of Defendant and his



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co-conspirators in connection with the production and sale of DRAM affected by this conspiracy

were within the flow of, and substantially affected, interstate and foreign trade and commerce.

(e) Acts in furtherance of this conspiracy were carried out within the Northern District

of California. Furthermore, DRAM affected by this conspiracy was sold by one or more of the

conspirators to customers in this District.

POSSIBLE MAXIMUM SENTENCE

5. Defendant understands that the maximum penalty which may be imposed against him

upon conviction for a violation of Section One of the Sherman Antitrust Act is:

(a) a term of imprisonment for three (3) years (15 U.S.C. § 1);

(b) a fine in an amount equal to the greatest of (1) $350,000, (2) twice

the gross pecuniary gain the conspirators derived from the crime , or (3) twice the gross

pecuniary loss caused to the victims of the crime by the conspirators (15 U.S.C. § 1; 18

U.S.C. § 3571(b) and (d)); and

(c) a term of supervised release of one ( 1) year following any term of

imprisonment . If Defendant violates any condition of supervised release, - Defendant could be

imprisoned for the entire term of supervised release (18 U.S.C. § 3559(a)(5); 15 U.S.C. § 3583(b)(3)

and (e)(3); and U.S.S.G. § 5D1.2(a)(3)).

6. In addition , Defendant understands that:

(a) pursuant to U.S .S.G. § 5E1 . 1, the Court may order him to pay restitution to

the victims of the offense; and

(b) pursuant to 18 U.S.C. § 3013(a)(2)(A) and U.S.S.G. § 5E1.3, the Court is

required to order Defendant to pay a $100 .00 special assessment upon conviction for the charged

crime.

SENTENCING GUIDELINES

7. Sentencing for the offense to be charged will be conducted pursuant to the U.S.S.G.

Manual in effect on the day of sentencing. Pursuant to U.S.S.G. § IB1.8, the United States agrees



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that self-incriminating information that Defendant provides to the United States pursuant to this Plea

Agreement will not be used to increase the volume of affected commerce attributable to Defendant

or in determining Defendant's applicable sentencing guidelines range, except to the extent provided

in U.S.S.G. § 1B1.8(b). The United States and Defendant agree that the U.S. Sentencing Guidelines

may be applied and, if applied, the applicable sentencing guidelines is U.S.S.G. § 2R1.1 with a base

level of 10, a volume of commerce adjustment of plus 7 pursuant to U.S.S.G. § 2R1.1(b)(2)(G), for

a total of 17; less a 3-level adjustment for timely acceptance of responsibility pursuant to U.S.S.G.

§ 3E1.1(a) and (b), for a total offense level of 14. Further, the United States agrees to make a

motion for downward departure pursuant to Paragraph 10 below and U.S.S.G. § 5K1.1,

recommending that Defendant be sentenced to the sentence agreed to below.


8. (a) Pursuant to Fed.. R. Crim. P. 11(c)(1)(C), the United States and Defendant agree

that the appropriate disposition of this case is, and agree to recommend jointly that the Court

impose, a sentence requiring that Defendant pay to the United States a criminal fine of $250,000,

pursuant to 15 U.S.C. § 1, payable in full before the thirtieth (30th) day after the date ofjudgment; a

period of incarceration of 120 days; no order of restitution; and no period of supervised release ("the

.recommended sentence"). Defendant understands that this Court will order him to pay a $100

special assessment pursuant to 18 U.S.C. § 3013(a)(2)(A) and U.S.S.G. § 5E1.3 in addition to any

fine imposed.

(b) The United States will not object to Defendant's request that the Court make a

recommendation to the Bureau of Prisons that the Bureau of Prisons designate that Defendant be

assigned to a Federal Minimum Security Camp (specifically to FPC Nellis, the Nellis Federal Prison

Camp, near Las Vegas, Nevada) to serve his sentence of imprisonment and that Defendant be

released on his own personal recognizance following the imposition of sentence to allow him to

self-surrender to the designated institution on a specified date.



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F '

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(c) The parties also agree that if the U.S. Sentencing Guidelines do not apply, this Court

in exercising its unfettered discretion within the statutory limits for this offense should impose the

same recommended sentence. Nothing in this Agreement shall preclude the United States from

making a motion to reduce Defendant's sentence pursuant to Fed. R. Crim. P. 35(b) or otherwise, if

circumstances so warrant.



NA, Defendant's employer, including In re DRAM Antitrust Litigation, No. M-02-1486-PJH, MDL

No. 1486, in the United States District Court, Northern District of California, and DRAM Cases, No.

CJC-03-004265, in the Superior Court, San Francisco, California, which potentially provide for a

recovery of a multiple of actual damages.

10. The United States and Defendant agree that the applicable sentencing guidelines fine

and incarceration ranges exceed the fine and term of imprisonment contained in the recommended

sentence set out in Paragraph 8 above. Subject to the full and continuing cooperation of Defendant,

as described in Paragraph 13 of this Plea Agreement, and prior to sentencing in this case, the United

States agrees that it will make a motion, pursuant to U.S.S.G. § 5K1.1, for a downward departure

from the guidelines sentence in this case. The motion for downward departure is based on

cooperation that has already occurred and any additional cooperation that may occur prior to

sentencing. Furthermore, the United States will request that this Court impose the fine and term of.

imprisonment contained in the recommended sentence set out in Paragraph 8 of this Plea Agreement

because of Defendant's substantial assistance in the government's investigation and prosecutions of

violations of federal criminal law in the DRAM industry.

11. The United States and Defendant jointly submit that this Plea Agreement, and the

I record that will be created by the United States and Defendant at the plea and sentencing hearing,





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the date of arraignment, based upon the record provided by Defendant and the United States, under

the provisions of Rule 32(b)(1), Fed. R. Crim, P., U.S.S.G. § 6A1.1, and Criminal Local Rule 32-

1(b). The Court's denial of the request to impose sentence on an expedited schedule will not void

this Plea Agreement. Should the Court deny Defendant's request to impose sentence on an

expedited schedule, the United States agrees that, at the initial appearance or arraignment, it will

recommend the release of Defendant on his personal recognizance and without bond, under 18

U.S.C. § 3142, without restriction as to travel , pending the sentencing hearing in this case.

12. The United States and Defendant understand that this Court retains complete

discretion to accept, or reject the recommended sentence provided to in Paragraph 8 of this Plea

Agreement.

(a) If this Court does not accept the recommended sentence, the United States




sentence.


free to withdraw his guilty plea (Fed. R. Crim. P. 11(c)(5) and (d)). If Defendant withdraws

his plea of guilty, this Plea Agreement, the guilty plea, and any statement made the course of

any proceedings under Fed. R. Crim. P. 11 regarding the guilty plea or this Plea Agreement

or made in the course of plea discussions with an attorney for the government shall not be

admissible against Defendant in any criminal or civil proceeding, except as otherwise

provided in Fed. R. Evid. 410. In addition, should the Court not accept the Plea Agreement

and should Defendant then withdraw his guilty plea, the United States agrees that it will

dismiss the Information, without prejudice to the United States' right to indict Defendant on



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n.

the charge contained in the Information and any other related charges. In addition,

Defendant agrees that, if he withdraws his guilty plea pursuant to this subparagraph of the

Plea Agreement, the statute of limitations period for any Relevant Offense, as defined in

Paragraph 14 below, will be tolled for the period between the date of the signing of the Plea

Agreement and the date Defendant withdrew his guilty plea or for a period of sixty (60) days

after the date of the signing of the Plea Agreement, whichever is greater.


13. Defendant will cooperate fully and truthfully with the United States in the

prosecution of this case, the conduct of the current federal investigation of violations of federal

antitrust and related criminal laws involving the manufacture or sale of DRAM, any other federal

investigation resulting therefrom, and any litigation or other proceedings arising or resulting from

any such investigation to which the United States is a party ("Federal Proceeding"). The ongoing,

full, and truthful cooperation of Defendant shall include, but not be limited to:

(a) producing in the United States and at other mutually agreed-upon locations all

documents, including claimed personal documents, and other materials, wherever located, in

the possession, custody, or control of Defendant, requested by attorneys and agents of the

United States;

(b) making himself available for interviews in the United States and at other

mutually agreed-upon locations, not at the expense of the United States, upon the request of

attorneys and agents of the United States;

(c) responding fully and truthfully to all inquiries of the United States in

connection with any Federal Proceeding, without falsely implicating any person or

intentionally withholding any information, subject to the penalties of making false

statements (18 U.S.C. § 1001) and obstruction ofjustice (8 U.S.C. § 1503);



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(d) otherwise voluntarily providing the United States with any material or

infonnation, not requested in (a) - (c) of this paragraph, that he may have that is related to

any Federal Proceeding; and

(e) when called upon. to do so by the United States in connection with any

Federal Proceeding, testifying in grand jury, trial, and other judicial proceedings in the

United States, fully, truthfully, and under oath, subject to the penalties of perjury (18 U.S.C.

§ 1621), making false statements or declarations in grand jury or court proceedings (U.S.C.

§ 1623), contempt (18 U.S.C. §§ 401 - 402), and obstruction ofjustice (18 U.S.C. § 1503).


14. Subject to the full, truthful, and continuing cooperation of Defendant, as described in

Paragraph 13 of this Plea Agreement, and upon the Court's acceptance of the guilty plea called for

by this Plea Agreement and the imposition of the recommended sentence, the United States will not

bring further criminal charges against Defendant for any act or offense committed before the date of

this Plea Agreement that was undertaken in furtherance of an antitrust conspiracy involving the

manufacture or sale of DRAM or undertaken in connection with any investigation of such a

.conspiracy ("Relevant Offense"). The nonprosecution terms of this paragraph do not apply to civil

matters of any kind, to any violation of the federal tax or securities laws, or to any crime of violence.

15. Defendant understands that he may be subject to administrative action by federal or

state agencies other than the United States Department of Justice, Antitrust Division, based upon the

conviction resulting from this Plea Agreement, and that this Plea Agreement in no way controls

whatever action, if any, other agencies may take. However, the United States agrees that, if

requested, it will advise the appropriate officials of any governmental agency considering such

administrative action of the fact, manner, and extent of the cooperation of Defendant as a matter for

that agency to consider before determining what administrative action, if any, to take.



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16. Defendant has reviewed all legal and factual aspects of this case with his attorney and

is fully satisfied with his attorney's legal representation. Defendant has thoroughly reviewed this

Plea Agreement with his attorney and has received satisfactory explanations from his attorney

concerning each paragraph of this Plea Agreement and alternatives available to Defendant other

than entering into this Plea Agreement. After conferring with his attorney and considering all

available alternatives, Defendant has made a knowing and voluntary decision to enter into this Plea

I Agreement.

VOLUNTARY PLEA

17. Defendant's decision to enter into this Plea Agreement and to tender a plea of guilty

is freely and voluntarily made and is not the result of force, threats, assurances, promises, or

representations other than the representations contained in this Plea Agreement. The United States

has made no promises or representations to Defendant as to whether the Court will accept or reject

the recommendations contained within this Plea Agreement.



period that any Federal Proceeding is pending, that Defendant has failed to provide full and truthful

cooperation, as described in Paragraph 13 of this Plea Agreement, or has otherwise violated any

provision of this Plea Agreement, the United States will notify Defendant or his counsel in writing

by personal or overnight delivery or facsimile transmission and may also notify his counsel by

telephone of its iritention'to void any of its obligations under this Plea "Agreerrient (except its

obligations under this paragraph), and Defendant shall be subject to prosecution for any federal

crime of which the United States has knowledge including, but not limited to, the substantive

offenses relating to the investigation resulting in this plea Agreement. Defendant may seek Court

review of any determination made by the United States under this Paragraph to void any of its

I obligations under the Plea Agreement. Defendant agrees that, in the event that the United States is



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117-M')

released from its obligations under this Plea Agreement and brings criminal charges against

Defendant for any Relevant Offense, the statute of limitations period for such offense will be tolled

for the period between the date of the signing of this Plea Agreement and six (6) months after the

date the United States gave notice of its intent to void its obligations under this Plea Agreement.

19. Defendant understands and agrees that in any further prosecution of him resulting

from the release of the United.States from its obligations under this Plea Agreement based on

Defendant's violation of the Plea Agreement, any documents, statements, information, testimony, or

evidence provided by him to attorneys or agents of the United States, federal grand juries, or courts,

and any leads derived therefrom, may be used against him in any such further prosecution. In

addition, Defendant unconditionally waives his right to challenge the use of such evidence in any

such further prosecution, notwithstanding the protections of Fed. R. Evid. 410.

ENTIRETY OF AGREEMENT

20. This Plea Agreement constitutes the entire agreement between the United States and

Defendant concerning the disposition of the criminal charge in this case. This Plea Agreement

cannot be modified except in writing, signed by the United States and Defendant.

21. The undersigned attorneys for the United States have been authorized by the

Attorney General of the United States to enter this Plea Agreement on behalf of the United States.

I PLEA AGREEMENT - CORWIN 12


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-0


executing this Plea Agreement. Multiple signature pages are authorized for the purpose of

executing this Plea Agreeement.

DATED: December 2. 2004. Respectfully submitted,

BY:

T. c. Co ' Nia11 B. Lynch, CA No. 157959Defendant Eugene S. Litvinoff, CA No. 2143218

Nathanael M. Cousins, CA No. 177944U.S. Department of JusticeAntitrust Division450 Golden Gate Avenue

Counsel for Defert4ant Room 10-0101, Box 36046David P. Bancroft San Francisco, CA 941023effrey C. Hallam Tel: (415) 436-6660Richard T, Nelson lax: (413) 436-6687Sideman & Bancroft LLPOne Bmbarcadero Center, Eighth FloorSan Francisco, CA 94111



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executing this Plea Agreement . Multiple signature pages are authorized for the purpose of

executing this Plea Agreement.

DATED: December Z. , 2004. Respectfully submitted,

BY:

T. Rudd CorwinDefendant

TAP .1- -^----.Counsel for DefendantDavid P . BancroftJeffrey C . HallamRichard J . NelsonSideman & Bancroft LLPOne Embarcadero Center , Eighth FloorSan Francisco , CA 94111

PLEA AGREEMENT - CORWIN

Niall E. Lynch, CA No. 157959Eugene S . Litvinoff, CA No. 2143218Nathanael M. Cousins , CA No. 177944U.S. Department of JusticeAntitrust Division450 Golden Gate AvenueRoom 10-0101 , Box 36046San Francisco , CA 94102Tel: (415) 436-6660Fax: (415) 436-6687

13


Exhibit E

I8:OQ-cv-041864 H DDoomeehQ226 fFiilsd!W 1J '@(D P2 wff3?

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'L UN o

4) E

- 0z

U) a)

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In re DYNAMIC RANDOM ACCESSMEMORY (DRAM ) ANTITRUSTLITIGATION

This Document Relates to:

All Direct Purchaser Actions

No. M 02-1486 PJH

ORDER DENYING MOTIONSTO SEAL RE SUMMARYJUDGMENT

On February 20, 2007 , the court issued its order granting summary judgment in part

and denying summary judgment in part. In it, the court instructed the parties to re-file the

motions to seal that had been filed in connection with the summary judgment motions, in

order to allow the court to make a streamlined and efficient determination of the parties'

sealing requests. Pursuant to that order, defendants Infineon, Hynix, and Micron have now

filed revised motions to seal certain documents that were filed in connection with plaintiffs'

opposition to defendants' summary judgment motions.

Preliminarily, defendants point out that the court has granted previous requests to

seal similar documents (and in one case, the same document) in connection with plaintiffs'

motion for class certification, decided by the court last year. However, this does not control

the court's decision here. A higher burden is imposed on dispositive motions than on non-

dispositive motions. See, e.g., Kamakana v. City of Honolulu , 447 F.3d 1172, 1179-80 (9th

Cir. 2006)(compelling reasons must be shown to seal judicial records attached to a

dispositive motion); see also Foltz v. State Farm Mutual Auto. Ins. Co. , 331 F.3d 1135-36

(9th Cir. 2003). And even though the court applied Kamakana's "compelling reasons"

standard to the parties' prior motions to seal in connection with the class certification

I8:OQ-cv-041864 H DDoomeehQ2A6 fFiilsd!W 1J '@(D P Twff3?

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motion (finding that motion akin to a dispositive motion), the court nonetheless scrutinizes

the instant motions to seal with a finer lens, in view of the fact that they are filed in

connection with actual summary judgment motions, and in view of the fact that they are

likely to be proffered as exhibits at trial.

Applying Kamakana in the context of the instant motions to seal, defendants have

not demonstrated sufficient "compelling reasons" for a sealing order. See Kamakana , 447

F.3d at 1180. Although defendants each assert that the documents they seek to have

sealed reveal critical proprietary information regarding defendants' commercial and pricing

policies and strategies, inventory strategies, and internal sales and marketing policies,

none of the documents actually appears to contain information directly revealing such

proprietary information. Moreover, none of the documents appears qualitatively different

from the kind of information that has already been filed in the public record in this case, and

which will be treated publicly at trial.

Accordingly, all three motions are DENIED. To the extent that any party's motion to

seal, filed in connection with the dispositive motions at issue, is still pending due to that

party's failure to withdraw or re-file their motion pursuant to the court's February 20, 2007

order, those motions are also hereby DENIED. The parties are further instructed to file (a)

unredacted versions of all corresponding documents that were filed partially or wholly

redacted; and (b) all corresponding documents that were filed pursuant to a manual filing

notification and conditionally lodged under seal.

IT IS SO ORDERED.

Dated: March 6, 2007

PHYLLIS J. HAMILTONUnited States District Judge

2


Exhibit F

(C MmumwT1t7ZNT lRila1MMM 8 Rqj)BT(df4D

Case M:02-cv-01486-PJH Document 1458 Filed 03/07/2007 Page 83 of 109

From: Florian Hsinrfrh (MP SM)Sant Tuesday, O, Ober 09, 2QD1 11:10 AMTo: Hefner Guenter (MP Sales)Subjoci- Re: New regional 1lmitpricing CW40

Micron wants to close Fabs for two weeks at the end of the year. MU may possibly alsohave to be laid off. SEC is not interested in Kapa reduction (wants to win MS, mercilessapproach). US was 1 hour late. I was not present at the lunch because Sadler wanted tospeak with US alone. I hope we will get information on US position during Top WS DD.In principle we are ready for Kapa red. Scenarios are being prepared.

Regards,Heinrich Florian

[see source for English]

------Original Message-----

From: Heiner Guenlet (MP Sales)Sent on: Tuesday, October 9 2001 12:52 PMTo: Flarlan MNndch (MP SISubject: Re: Mew R9lanal Will pd ck g CW40

OK, are there any inputs from yesterday's meeting between US & M?

------Original Message------

From: Florian Heinrich (MP SM,)Sent on : Tuesday, October 9, 2001 12:46 PMTo: Hefner Guenter (MP Sales)Subject: Re: New regbnal ]fmlt pricing CW40

Of course, AvZ will not let go until he has understood that . Therefore an Excel table withall information . We should also attach an exec summary (Sales, Marketing , LOG PDC).


[see source for English and stamp]

HIGHLY CONFIDENTIAL ITAG-00385456

*** Partial Translation of German Document ***

(C MmumwT1t7ZNT FR11,a 1ROW Wi8 Rqj3B43(df4D


-----Original Message-----

From: Heiner Guenter (MP Sales)Sent on: Tuesday, October 9, 200fl, 2:36 PMTo: Florian Hetnekh (MP SM)Subject: Re:: NC Y tealonal limitpaCtpp CW40

We just have to be careful that we are not accused of being incapable of planningagain ............Ginter

----Original Message------

From: Florian It&ntlch (MP 34

Sent on: Tuesday, October 9, 2001 11:47 AMTo: S4n1 Sharon (MP BA SM PC)C= Nahopyll Maraca pMIP SM 5); Heiner Guenter (MP WaalSubject: Re:: New regional Omit p[Icing CW40

Sharon,That sounds like a general survey of the stock according to generations/modules vs.forecast . Focus on products short/over supply . Can you put that in an Excel table forAvZ? It won't harm to have this ready for the stock meeting.

Regards,Heinrich Florian[see source for English]

.r-----Original Message------From: N9hDgyll Marika (MP SMS)Sent on: Tuesday, October 9, 2001 11:07 AMTo: Florian Hstruieh (MP SM); Hetnet Guenter (MP Sales)Subject: FW: ? tyreglonal1ImlpikingCW40

After thinking for 2 hours I have come to the conclusion that almost every answer cancome back as a boomerang-what shall I do-HELP!!!

------Original Message------From: ZIIztw 1lz von (COO)Sent on: Tuesday, October 9,20019;03 AMTo: Nahogyii1 Marlka (MP BM 5)Cc hefner Oveder (MP Saes), Florian He1oi (MP SMjSubject: Re: Newtellotlal itnlt pQOlnQ CW40

That is almost all! And what do we have too much of?------Original Message-----

From: Neho9y11 MadIc (MP SM S)Sent on: Monday, October 8, 2001 4:35 PMTo: zW* mom V (WO)Cc Hslnorilcnker (MPSale* Flwlin?iilnrkh(MDSM)Subject: Re: NewreClona111mltpddngCW40




MmumwT1t7ZNT FR11,a1ROW Wi8 5 (dfftD


-----Original Message-----

From : musmArAm (000)

Sent on : Saturday October 6 2001 1:05 PMTo: N.hOQyL lodkip Bus)Q= Mslner Ousntsr (HP 8skp; Flofan He1ni0 Ow SM)Subject : Re:: Newvegim a1IbT prioing CW40

Where (in which products) are we already short (sold out)?

----Original Message-----

From: Nehoof Marika (HP SM S)Sent: Thursday, October 4, 2001 9:05 AM 6To: lgeIb nk OrIstcph (lIP CM); *nazer Habi (MP'CNd; Mehne MlChaei (MP SM 5',;

Souchdon 3oaquln (HP 501); Xwek O ng Hng (S M' MP); Steven (Sales UIQ;Tang Kal O%oon (BO MP AP); 9GTe1 Peter (MP GPS); Owwln Rudd Tr Londo Auto {]PMP); Kammler WaRgang; Lim Abraham (MP SM S); 0 replan ]hn (ITt : WilOa ns Hal(ITC); Costh o Leo i-]aar

CC Maas van (COO); E.ggerS Harald (MP LeiWng); Florian HrJnrich (MP 5tO;Hefner Qtenter (MP Sees); Fildebrandt Dirt (MPS 1 5q; Qs:nsdunid 0MR IMP LOG);YMbdft Holmer (14F SM PQ

Subject: Now reg oral limit pdclin QN40




^H MmumwT1t7ZNT FRI MUCIMM i8 (FDc,ff)





^H MmumwT1t7ZNT FRi ,a1UO LWi8 TOaff D

Case M:02-cv-01486-.JH Document 1458 Filed 03/07/2007 Page 83 of 109

From: Florian Henulch (MP SM)Sent: Tuesday October 09, 2001 11:10 AMTo: Hefrw Guenter (UP Sslec)Subject AW: New regional fir* prk3ng CW40

New w? Fnde des Jahres Fabs for rail Wochan schile en. EvIL mua MU auch Leute ar2lassen.SEC ni tan Kapa redu2lerung Interasiert (woUen MS gewinnen, gnadenloser Ansalz)US kam 1 h zu tspal Beim Ewen war ich nkhl dabel. da Sadler alleles mlt US spreohen wallfe, Hoge wir Icrlegln Info wUS Positbn wahcend Top WS DD. Prinzilliell rind wlr zur Kepa red berelL Szenailen In Vorbereltung.

Regards.Heinruh Florian

Inl)nson Technologies AGMemory ProductsSafes, Madcel,ng & Logistics, MP SMPhone: +4B-a9-234.25771Fax +49.09-234-22783Mobile: +49-175-221 5464

ane Volta; s a-wail "my e0ete t t s saetets or pr egad,i!lciosad or atheratae oenfideatial inCaxnation. 12 you have sweised

thhis e-suit is error, you axe hereby notified that any Yeviev, eopyin9or diecribotios of it it strictly prohibited. Ttuse Info .usii &diately and destroy the originek tranmltc&l. Thank you row yourcneperattoa.

-UrspMDg1 +e Naebdrht-Vorr. Heiner Gusher (WP Sales)Gesendet am: D'yrketig IL OLlober 2001 12:52An: FIorIRn Heinddt (MP SM)eclrcrh AW: New esplond Cult pdeing CW40

OKgibes inputs vom geslrigen meeting US 3 M. 7

-.-Urspeyrche Nachncht --Von: Fkden Heinrich (MP SM)Gesendat am: D1e etap. 9.OUober 2001 1215An: HcfnerGuenlu(MP Saks)BNron : AW: New teplonal tnt pdt r9CW40

klar, Avz w'ird aber nioht losiassen, big or des verslanden hat. Deswegen excel Tabede rnil alien Infos. We soutennoch exec surrmmary (Sales, Marketing, LOG POC) dranhlingen.

Regards,Heinrich Florian..... _....... _.................Infineon Technologies AGMemory ProductsSales , Marketing & Logistics, MP SMPhone: +4389-234-26771Fax: +4 9-89-234-22763Mobile: +49-175-2216464

Iopnrtant Lute: This e-naiL nay eenta n trade secrets or privileged,.-disclosed as otherwise confidential ietosaatiee. if you haos receivedtai. W-Ll in error, you aza bat•by notified that any review, eopyinpor dietrlbutien of it [a prohibited. Please iatara usimaediacely and destroy the oriyiail transmittal. Think you for your

EXHIBITenaptratior..'XH1B

3HLY CONFIDENTIAL ITAG-00385456

^H MmumwT1t7ZNT I MImMUOMMa 8 &'(dff D

Case M:02-cv-01486-PJH Document 1458 Filed 03/082007 Page 84 of 109

-urap 0nglehe Naduhht-VOW HaNm Gunter (MP Sws)Geosgdsd am: O iIIUg, a OMEobsl2001 12:38Aa FkNe Hainddt (MP SM)9e4eR: AW New Ceylon lira ptfm g CIN40

mOssen nur aufpsesen da$ uns dane nicht wieder Piatwngunfih)gkeit witd...........................

Gonter

- -UtsyiOngidto Mechrititt--vore PolWt teem W SM)Oowndet em: drroalay, A. 2001 11:47Air Sad WM 40 (hP &A 514 PC)cc Nnhpgy8 Marla (MP SM S) HaBtor Guenter PAP Sska)Boner. AW: 1sw re8io eI t o5ptjriie CW4O

Sharon; .des Wqt naah einer Gesemt-DarsteWxtg Lagerbes(aind nach Generationen I Module vs. ForecastAugenmerk au( Produkte short ersupply. Kamstdas in eino exoet Tabehe fOr AvZ blingen. Schadet unssuch nd*. dies for die Sloclo=teedng pars( zu haben.

Regards.Heiodch Marian....... ............................Infu>con Technologies AGMemory ProductsSales. Marketing & Logistics, MP SMPhone: +49-89-23426771Fax: +49-89-234-22763Mobile: f49-175-2216484

Iaporten Note.. ihia a-sa coy contain Lee" secrets at Privileged.andiaelosod or otherwise confidential tnfertition, tt you have receivedtL i-sril in error, you see hereby notified that any review, copyingor cis crit utioo of it is strictly prohibited. Please inform aci odIacely and destroy the original tronptittsl. Thank you tat yoe;eeeperstion.

.-unAranglibe NeWichl-Von: Nitu5ylI Mantra (MP SM S)Gesendet am: Glenslag, 9. Weber zeal 1107M: Florin Heiuielt (MP S6M Halsor Guenkr (MP Salts)bev.fh WG: Newraglonal "I poising GW4O

Nach 2 Stunden 0berlegung bin ich zu dam Entschluas gekommen, dass fast jede Antwort alsBumerang zurDckkornmen kann - was soil ich tun - HILFEI'I

--Utapr6n9 fiche NariheM--Von: 21bvMtz Mdrut von (COO)Geaaodat am: DiensIa3.9.Ob(obct 20010503An: Nuhc Ma *3 (UP S+e 5)Cr Hotnv GueMet (MP Silas}, Ftoden H.-In&h (MP SMIaetreW AW: Newn9bnal Wt pieing CW4Q

dos Lst ja bald albs 1 and wovon haben wit zuvlei 7

-Wsprungtdre Natlrldlt-Von: A'aI I4 Radio (MP SM S)Gasendet: Man',ag , S. Maher 1801 16:35An: Zibr Mdreai Non (COO)Cr- NNner Guenter (MP Sale s): FWan bekwic i (XP SM)BetraN: AW: New re5jsn7M Omit ptldao CW411

Components: 16Mx6 PC133, BMNIS PC133, 32Mx8 SDRA M PC133, 32MxB ODR 266, 16Mx16PC133Modules : 32Mx64 SORAM4 (128M and 256-based), 321x64 DDR, 161x64 PC100 SODIMM.120MB Rambus non ECC. 64Mxo"4 PC133

3HLY CONFIDENTIAL ITAG-00385457

(C MmumwT1t7ZNT FRlImMUM Wi8 sac,

Case M.02-cv-014Q6-PJH Document 1458 Filed 03/x7 007 Page 85 of 109

nVikIlid,. Ptie dlt,--•

Von: ZUWftArdfm woe MM)eesodsL.nti same, a onot,.rsaol tresArc Hslame yes tP SU s)Ce ) iuif GUmtr (MP gab&% FlmVn Hakfd h W SM)63^ e; W' Ner wp and 110111 P"ll we

we (bel Welchen Produtden) rind wir dens short (ausverkenft) ?

-(theV MWMYon: Kahca1 mrilm (MY 5M S)Oa uiMsb Dsivi g, 4. Oltmbm MUWNMu lodlMi* CAA* (W Clq,"Wier l+yae („iM Mehra wrtmd Or SM S1

SCsdiie -'A" n (XP 5O4),; Xwrk CiIan Wg (SAP MP); rbrbes RMn (siiw ulq;Tai Cal Oem (e0 My AP); sdNfr retry (rw GWS) ooiwh Nuee (fl WWD mio prHP); KoruvJw W (5a1P Urn Ati J am (Mr SM Sx Orrnpm 1Le (TlC) %Ulanu tiala ca.d, o

Co B*er1D Mdrac van (000), Enm Hasid (W lsthu flalro Hdrvfdh (MP srq;bew number (MV Sam: WA&an& on tPSM W. a:,nsds rd urlem (Mr LOG):T*sdda WNW (Mr SM PQ

netr.ff Nex np'mol Wt pddng CWIO

Dear colleagues,

First of all I would like to with you aA and Infineon a Happy NewYeaA]The last year was an excellent performance In terms of Bit-Sales. It looks like we have outperformed the market onceagain everuhough the memory market is a terrible battle fieldsince a couple of months . That is an outstanding performance -Thanks a lot for your continuous commllmentl

Due to all the special deals which we have done during lastmonth In order to achieve the monthly and yearly target incombination with a relatively stable pricing an the open market,the last official limit pricing is from CW36. So the deviationshown in the price sheet are reflecting this time period and arenot compared to the price level of last week.

The current situation on the open market is a little bit confusingespecially during the last 2 days. It looks like Samsung isactively trying to drive the market prices down. Their (direct)quotes are at 1,05USD. The first impression Is that thesequotes are rather political quotes than the result of hughinventories.Taking also our extreme low component avalfabi ity intoconsideration we decided to keep the 1,20 USD as a bottomtine for the time being

The 128MB modules (12,00 USD) are under parity compared tothe 256MB (25,000SD) In order to push'sales on the lowerdensities (where we still have enough inventory).

Prices for Rambus modules remain at the same level at 40,00USD (128M8yte non ECC), reap , 80,00 USD ( 128MByte nonECC).

Please find attached the otflcial Regional Account LIMIT

3HLY CONFIDENTIAL 1TAG-00385458

OBaeE63)®4OO4566WVV D®ourneefit1 29227 FFFddd 0/122 2008 Pfllggel 9 of 80

Case M:02-cv-014$6=PJH Document 1458 Filed 03/07/2007 Page 86 of 109

PRICING for this week on all main stream devices,

4< Met CW 40.xts >

Our wdanslve sales activities during last month are havingunfortunately one negative effectWe will be very short on several main runnels during October.Please double-check the alooatton and availability when youare negotiating some bigger deals In order to avoid trouble withyour customers due to delivery problems Furthermore pleaseby to package and bundle the cherry parts with our slowmoving inventoriesl

In case of questions or special requests please let me and myteam know.

Happy selling.

Marika Nahogyll

PS: Don't broadcast this t(mit price sheet any further

4

GHLY CONFIDENTIAL ITAG-00385459


Exhibit G

?MfDQ4w Q®4S6@W C®ooameiitl77W6 F 8 ep6!1c QJ9

CONFIDENTIAL

Page 1

1 UNITED STATES DISTRICT COURT

2 NORTHERN DISTRICT OF CALIFORNIA

3 SAN FRANCISCO DIVISION

4 IN RE: DYNAMIC RANDOM-ACCESS MEMORY

(DRAM ) Antitrust Litigation

5

6

7

8 --------_----------------------------

9 This Document Relates to:

ALL ACTIONS

10

11

Case No.

M-02-1486 PJH

MDL No. 1486

212-267-6868 516-608-2400VERITEXT NEW YORK REPORTING COMPANY

ft-Wcv-^1^ S i D^ocumenjz14258 Fed00̂3/01/200708

P3 of

a@ge 02 of 1 09

CONFIDENTIAL

Page 2 Page 4

I APPEARANCES 1 REDIRECT D MINATION BY MR SOWER! 210

2 DENNIS STEWART and BRIDC2 T GRAMME 2 RWIRECI EXAHifwm7N BY n9 212

IuleRHarper Stewartt3 550 WestC Street, Suns 1600 Sthesf 1 34

San Diego, Calfornla 92101 44 Tel 6193381133 wwde^ 2 ._ ._ .............. _. _ _ se

5 Appeared on OetWlf of the indirect 5 Stluder 3 _ _ ......._ _ ........... S96 purchaser plaintiffs 67 RFNAE D STTINER sd,xter 4 ......... _ _.......... _ _ 6s

Gustafson Guek PLLC 78 650 Nord r East 66

a r608 Stand Avenue South9 Minneapal -s, MN 55402 910 Tel 6123336844 ceder 7 _ -. ••- •...- . --••--•--• 7e

Appeared on behalf of the indirect 10 saaesa a ._._ ... _.... _.. ... _ ., so11 purchaser plaintiffs

11 .

12 Sd+ada9 .......__.,...._._..... 9713 MICHAEL .1 SHEPARD 12

Heiler Ehrinan Suadrr 10 121

14 333 Bush Street13

swde,11 ..... _................... 123San Frarxisoo. CA 94101-2878 11

15 Tel : 415 772 6000 Seder 11 126

Appeared on behalf of the witness is

16SNada13....._,........._......_ S51

17 MICHAEL D BLEOIMAN16

61uela la ........._ _ .............. 155Kaye S[holer 17

18 425 Park Avernle Sdwder 15 ........ _.......... ISO

New York, NY 10022 - 359816

sWdn 16 - _ .......-- •- -.......... 16119 Tel: 212 036 8358 19

Appeared on behalf of defendant Sduefer17 16620 Infineon 20

21 DANIEL L. ALDCANDERSWder1e 164

71O'Metveny &Myers LIP SWerv19.._._........-._..._._ 173

22 400 South Hope Street 22Los Angeles, Calfomia 90071-2699 Sdada 2n 376

23 213 430 6000 13sd^dc zl .................... 177

appeared on behalf of defendant HynhcN

24 Sduder 12 .. ............ _ ........... 16025 25

Page 3 Page 5

I )DEL S SANDERS1 Schaefer 23 184Gibson , Dunn & Crutcher LIP ........... ...... ......... ..

2 One Montgomery Sheet 2 Schaefer 24 .. .... 184son ITandsco, calnorrJ09n1oa 4505

3 Schaefer 25 1893 let:415415

393393 8268 ............................

Appeared on behalf of defendant Mlnon 4 Schaefer 26 ..... . 196ROBERT E FREITAS 5 Schaefer 27 ............................ 197

5 Orrick Herrington & Sutcliffe LLP 6 Schaefer 28 1981000 Mash Road ....... • ••• .•• ••• .. • ••• •.• ..

6 Menlo Park , CA 9AD25 7 Schaefer 29 ............................ 200Tel: 050 614 7364

S h r 308 f 2017 Appeared orib halrofdefendantNanya ..... ... .c ae e •• ••• ••• ••- ••• ••• ••a R ALEXANDER SAVERI 9 Schaefer 31 ......... ...

•• ••• ..• ••• ..• ..204

..SAVERI & SAVERI INC. _9 111 Pine Street , Suite 1700 10

San Francisco , CA 94111 -1110 Td : 415 217 6810

Appeared for the direct purchaser 12it plaintiffs

1312 MCOLE LAUFor 1nflneoci AG and Qlmoda AG 14

1]COURT REPORTER: 15

14 16AILSA WI1UAI1S

is 1716

I81e 1919 VIDEOGRAPHER: MIOHAEL PRITCHARD (Boscen)20 INTERPRETER : 3AMES TURNER (Boscen) 202' 2122

PETER SCHAEFER. .................. ........ 7 22

23 DIRECT EXAMINATION BY M5 STFINER .. ........... 7 2321 24

CROSS- EXAMINATION BY MR SLECHIMN ............. 207

25 25

2 (Pages 2 to 5)

VERITFXT NEW YORK REPORTING COMPANY212-267-6868 516-608-2400

CONFIDENTIAL

Page 122

1 bullet point one, you write ; "They will write down whatever 15:00:48 1 1

2 they can". What did you mean by that sentence? 15:00:53 2

3 A. I think it meant writing down the book values, 15:01:10 3

4 but! am not sure. It is a long time ago. lam not sure. 15:01:15 4

5 I can speculate I think. 15:01:19 5

6 Q. Was it your understanding that they were going 15:01:22 6

7 to write down the value of their DRAM inventory? 15:01:24 7

8 MR BLECHMAN: Object, in the light of his last 15:01:30 B

9 answer that calls for speculation. 15:01:32 9

10 MR SANDERS: Lack of foundation. 15:01:36 10

11 A. It would mean to speculate. I am not sure. 15:01:37 11

12 Q. Lets go up to the top part of the e-mail. Is 15:01:45 12

13 there any reason that you sent points eight and nine only to 15:01:49 13

14 Mr Eggers? It appears you sent that one minute after you 15:01:54 14

15 sent the first e-mail of the first seven points? .15:02:00 15

16 A. I also would need to speculate. I don't know. 15:02:08 16

17 Q. You don't recall? 15:02:11 17

18 A. I don't recall, no. 15:02:12 18

19 Q. Number B reads: 15:02:15 19

20 "On the assumption that Hynix gets new money they 15:02:16 20

21 will consider to take supply out of the market if others do 15:02:19 21

22 the same;" I am going to stop there. Who Is the "they' that 15:02:23 22

23 you reference in that sentence? 15:02:27 23

24 A. The reference Is to Micron. 15:02:36 24

25 Q. Now on number 9: 15:02:43 25

Page 123

1 "WY Lee was planned to meet Appleton next week." 15:02:43 1

2 It was your understanding that WY Lee was 15:02:49 2

3 a Samsung executive? 15:02:52 3

4 A. Yes. 15:02:55 4

5 Q. I am sorry, YIN Lee? 15:02:57 5

6 A. Yes. 15:03:00 6

7 Q. Did Mr Sadler tell you that information? 15:03:01 7

8 A. I think he did, yes. 15:03:04 8

9 Q. Did he also tell you the Information contained 15:03:05 9

10 in point number 8? 15:03:07 10

11 A. I think yes, urn hum. 15:03:13 11

12 Q. Did he tell you why he thought that Lee wanted 15:03:17 12

13 to talk about cutbacks with Micron? 15:03:23 13

14 A. I don't remember. 15:03:27 14

15 (Exhibit Schaefer 11 marked for Identification) 15:04:05 15

16 Q. Showing you what has been marked Exhibit 11, 15:04:06 16

17 it is controlled ITAG 00030497. Have you seen this document 15:04:08 17

18 before? 15:04:20 18

19 A. Yes. 15:04:20 19

20 Q. When do you recall seeing it before? 15:04:21 20

21 A. When do I recall seeing it before? 15:04:26 21

22 Q, Yes. When do you think you have seen this 15:04:28 22

23 before? 15:04:30 23

24 A. 1 think this is an e-mail I received 15:04:33 24

25 in May 2002. That is what it says. 15:04:35 25

Page 124

Q. And Mr von Zitzewitz asks you and Mr Florian 15:04:40

and copies Mr Eggers an a message, the last line of which 15:04:46

is: Any discussions in the community to lower 15:04:50

capa utilization?" Do you see that? 15:04:56

A. Yes. 15:04:59Q. Did you take that as a request from Mr von 15:05:00

Zitzewitz that you should talk to your competitive contacts 15:05:02

about whether you should lower capa utilization? 15:05:06MR BLECHMAN: Object, lack of foundation. 15:05:23

A. That question was too complicated. I am 15:05:2.3

sor , can you repeat? 15:05:23

(Read back) 15:05:39

A. I don't remember what I thought at that point 15:05:40

in time but I didn't take that as a -- I didn't go to 15:05:41

anybody and ask for lower capa utilization after this 15:05:48

e-mail. 15:05:52

Q. Did you do anything in response to this 15:05:53

e-mail? 15:05:54

A_ I don't remember. 15:05:56

Q. You can turn that one over. Did Mr von 15:06:02

2ltzewitz ever tell you that he met with Mr Sadler? 15:06:21

A. I think yes, they met once, at least I think 15:06:30

they met once. 15:06:34

Q. Do you know what they met to talk about? 15:06:35

MR BLECHMAN: Objection, lack of foundation. You 15:06:38

Page 125 1_

can answer. 15:06:40

A. Mike Sadler approached me and wanted me to 15:06:45

convey the message that he -- I have forgotten, I don't know 15:07:04

exactly -- wanted to talk to Infineon management. So 15:07:11

I forwarded that to Harald Eggers and I think they organized 15:07:16

a meeting in Munich. 15:07:22

Q. Do you know who attended that meeting? 15:07:28

A. I don't recall exactly. I think Zitzewitz 15:07:37

attended that meeting. 15:07:40

Q. You did not? 15:07:42

A. No. 15:07:43

Q. Do you know who attended from Micron's side? 15:07:45

MR SANDERS: Objection, lack of foundation, 15:07:49

A. I think It was Mike Sadler. 15:07:51

Q. When was that meeting? 15:07:57

MR SANDERS: Objection, lack of foundation. 15:08:01

A. September/October/November 2001. I think in 15:08:08

this - 15:08:14

Q. Somewhere in that timeframe? 15:08:15

A. Yes. 15:08:16

Q. Not a 2-month long meeting? 15:08:16

A. No, I think one meeting in that timeframe, but 15:08:19

I don't remember exactly the date. 15:08:22

Q. Before the meeting when Mr Sadler approached 15:08:25

you, did he tell you why he wanted to meet with Infineon 15:08:29

32 (Pages 122 to 125)

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Page 126

I executives? 15:08:35 1

2 A. If I remember right, he said that Micron is 15:08:41 2

3 considering to lower their capacity and wanted to talk to 15 : 08:44 3

4 Infineon about this. 15 : 08:48 4

S (Exhibit Schaefer 12 marked for identification) 15:09:10 5

6 Q. Showing you what is marked as Exhibit 12, I am 15 : 09:11 6

7 just going to ask you about the first page . 15:09:14 7

8 A. Okay. 15 : 09:16 8

9 Q. You see on the first page - let me for the 15:09:20 9

10 record say this document is I1NA01139678 through 683. It is 15 : 09:24 10

It an e-mail string . On the first page there Is an e-mail from 15 : 09:33 11

12 you to Mr von Zibxwitz, dated October 13, 2001. Do you see 15:09:39 12

13 that e-mail? 15 : 09:46 13

14 A. Yes, I do . 15:09:46 14

15 Q. Do you see in the "PS " you ask Mr von 15 : 09:47 15

16 Iaewitz how his meeting was with Mike Sadler? 15:09:52 16

17 A. Yes. 15:09:56 17

18 Q. Are you asking about the meeting you just told 15 :09:57 1B

19 me about ? 15:09:59 19

20 A. Yes . 15:10:00 20

21 Q. What did Mr von Zitzewitz tell you about his 15 :10:08 21

22 meeting with Mike Sadler? 15:10:11 22

23 A. Well, it is written here in German . 15:10:18 23

24 Q. I want to know everything he told you about 15:10:20 24

25 that meeting, whether It is on this document or not. So is 15:10:22 25

Page 127

1 this all he told you about that meeting, what is recorded 15:10:26 1

2 here In this document? 15:10:29 2

3 A. That is my recollection, yes. 15:10:30 3

4 Q. And doesn't he say, and you tell me now if my 15:10:33 4

S translation is wrong -- 15:10:37 5

6 A. Okay. 15:10:38 6

7 Q. -- that the talk with Mr Sadler was good? 15:10:38 7

8 A. Um hum. 15:10:46 8

9 Q. Is that right so far? 15:10:47 9

10 A. Yes. 15:10:49 10

11 Q. "I believe M is willing? 15:10:49 11

12 MS LAU: That is wrong. 15:10:56 12

13 MR BLECHMAN: Objection. 15:10:57 13

14 MS STEINER: Okay, you can all tell me why it is 15:10:58 14

15 wrong, but lees start with Mr Schaefer. 15:11:00 15

16 it says: "I believe M is willing. Now S has to be 15:11:04 16

17 convinced.* How do you read that, that sentence? 15:11:09 17

18 MR BLECHMAN: I also object to asking this witness 15:11:12 16

19 questions that an expert in the German and English languages 15:11:16 19

20 can better answer. 15:11:21 20

21 Q. You read this in 2001, did you not? 15:11:22 21

22 A. I did, yes. 15:11:24 22

23 Q. Okay. If you were to tell me in English what 15:11:25 23

24 you think you read, what would you say? 15:11:27 24

25 MR BLECHMAN: Same objection. You can answer. 15:11:30 25

Page 128

A. Well, I have problems to imagine what 15:11:32

I thought that day in 2001. 15:11:36

Q. As you sit here today, tell me what you think 15:11:40

it says? 15:11:42

A. It Is kind of cryptic. What means 15:11:43

"glaubhaft"? 15:11.53

THE INTERPRETER- It is open to Interpretation. 15:11:56

You could say word for word "credibly". "M Is credibly 15:11:58

willing" or another way to say it would be "M seems to be 15:12:03

willing", or you could - 15:12:06

A. It is more ready than willing, right. 15:12:09

MS LAU, "Prepared". 15:12:12

THE INTERPRETER: Prepared, willing, ready. 1 15:12:14think all of the three could be possible. 15:12:15

MR FREITAS: Which words were you interpreting? 15:12:19

A. The "glaubhafY'. That Is ready for me. They 15:12:22

are ready or prepared. So "M Is credibly ready", or 15:12:28

something, If I would translate it then. "Now it is to 15:12:34

convince S". That is what he says. 15:12:46

Q. When you read this at or about the time you 15:12:48

received it, what did you understand Mr von Zitzewltz was 15:12:51

reporting to you? 15:12:55

MR BLECIIMAN: Objection, lack of foundation. You 15:12:57

can answer. 15:12:59

A. Can I hear the question again? 15:13:01

Page 129


A. I don't know what I - what was the 15:13:20

question -- what I thought at that point in time. As 15:13:24

I said, it is a bit cryptic. It is not really 15:13:26

self-explaining. 15:13:29

Q. You did not understand this to mean that 15:13:34

Mr von Zilzewitz believes that Micron was willing to reduce 15:13:38

capacity and now you have to try and convince Samsung? 15:13:43

MR FREITAS: By'you"l do you mean Peter Schaefer. 15:13:52

MS STEINER: I am sorry, you, Infineon. 15:13:54

MR BLECHMAN: Oh, objection, lack of foundation. 15:13:56

A. I didn't know what was In the mind of Andreas 15:14:02

von Zitzewitz, and what he writes is not really dear to me. 15:14:10

Q. So you got this and you did not understand it 15:14:10

and you did not ask for follow up from Mr von Zitzewitz in 15:14:11

farm or substance: "Hey, I did not understand your message. 15:14:15

Could you explain more?" 15:14:19

MR BLECHMAN: Objection, misstates the testimony. 15:14:21

A. I asked how the meeting was and he sent me 15:14:24

this strange feedback. So he was much higher in the 15:14:26

hierarchy than I was, so you might understand that I don't 15:14:35

always follow up if someone sends me a cryptic e-mail. 15:14:36

Q. Did you ask Mr Sadler how this meeting went? 15:14:42

A. I might, but I don't recall the feedback. 15:14:47

Q. Did you tell anyone that Mr Sadler and Mr von 15:14:52

33 (Pages 126 to 129)

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Page 130

1 Zltzewitz were meeting to discuss capacity? 15:14:57 1

2 MR BLECHMAN: Objection to form. You can answer. 15:15:07 2

3 A. I think I told a lot of - with or without 15:15:14 3

4 lawyers in the room? 15:15:18 4

5 MR BLECHMAN: Yes. 15:15:22 5

6 Q. If you only told lawyers -- 15:15:23 6

7 A. Yes. 15:15:26 7

8 Q. You don't have to tell me, If you told your 15:15:26 8

9 lawyers about this meeting. I want to know if you told 15:15:28 9

10 anyone else about this meeting? 15:15:31 to

11 A. I mean in this whole procedure of this case, I 15:15:45 Ii

12 think we talked about this several times, the Government 15:15:47 12

13 MR BLECHMAN: I also wanted to Instruct the 15:15:53 13

14 witness there is a protective order in this case that you 15:15:54 14

1S not reveal discussions that you had with the Department of 15:15:58 15

16 Justice In the course of their investigation. 15:16:00 16

17 Q. So just to try and dear this up, on or 15:16:12 17

18 about October 2001, you don't recall talking to anyone else 15:16:15 16

19 about the fact that Mr von Zitzewitz and Mr Sadler were 15:16:20 19

20 going to meet to talk about capacity restraints? 15:16:24 20

21 A. I talked to Harald Eggers before that meeting. 15:16:31 21

22 As the request was given to me, I forwarded it to Harald 15:16:36 22

23 Eggers, so I had a discussion with him before the meeting, 15:16:40 23

24 yes. 15:16:43 24

25 Q. Were you invited to attend this meeting? 15:16:44 25

Page 131

1 A. No. 15:16:46 1

2 Q. Do you recall a point in time where you 15:16:54 2

3 exchanged Infineon DRAM chips with Samsung DRAM chips? 15:16:57 3

4 A. Yes. 15:17:06 4

5 Q. Engaged in an exchange, Did you do that more 15:17:07 5

6 than once? 15:17:10 6

7 A. I definitely did it once. I don't know if I 15:17:13 7

B did it twice or three times. 15:17:15 B

9 Q. Why were you willing - why was Infincon 15:17:18 9

10 willing to exchange their DRAM chips with Samsung DRAM 15:17:21 10

11 chips? 15:17:26 11

12 MR BLECHMAN. Objection to form of the question. 15:17:27 12

13 You can answer. 15:17:30 13

14 A. There was an interest in the technical 15:17:30 14

15 functions at Memory Products to first of all understand how 15:17:38 15

16 If the Samsung chip is corn - what is the right term - 15:17:47 16

17 works in application the same way. 15:17:56 17

18 Q. Compatible? 15:18:02 18

19 A. Compatible, that is one thing, and the other 1S:18:02 19

20 benefit of getting a sample from Samsung was to do a reverse 15:18:09 20

21 engineering with the chip, look at it, see how big it is. 15:18:19 21

22 Q. These chips you were exchanging, were they 15:18:23 22

23 chips that had already been in production? 15:18:25 23

24 A. I don't know. They might, they might not have 15:18:29 24

25 been in production. Do you mean mass production? 15:18:33 25

Page 132

Q. Yes, mass production, as opposed to 15:18:37

qualification or sample. 15:18:39

A. (No audible answer). 15:18:44

Q. Other than Mr Mackowiak, did you have 15:18:53

competitive contacts with anyone else at Samsung? 15:18:56

MR BtECHMAN: Object to the form of the question. 15:19:00

A. What is competitive contacts? 15:19:03

Q. I was trying to shorthand it Contacts with a 15:19:04

competitor where you obtained or exchanged competitive 15:19:06

competitor information? 15:19:11

MR BLECHMAN: Same objection, vague and ambiguous 15:19:12

also. 15:19:14

A. So the question was if I had contacts to other 15:19:15

people from Samsung than Mackowiak? 15:19:19

Q. Yes. 15:19:24

A. I think I met Tom Quinn from Samsung. 15:19:24

Q. Anyone else? 15:19:33

A. Well apparently in ADT there were Samsung 15:19:42

people working there, technical people, marketing people. 15:19:45

Q. Anyone else you can think of from Samsung? 15:20:04

A. As I said, if we exclude the meetings In ADT, 15:20:13

because there were so many people there, separate meetings 15:20:20

from ADT, I think it is Mackowiak, Quinn, and I don't recall 15:20:26

anybody else. 15:20:31

Q. At ADT meetings would competitors exchange 15:20:33

Page 133

competitive Information either about pricing or production 15:20:37

plans or exchange roadrnaps? 15:20:41

MR BLECHMAN: Object to the form or the question. 15:20:45

It is vague and ambiguous, It is compound, and I do not 15:20:50

understand the subjunctive mode. 15:20:55

it. Can I have question again? 15:20:58


A. I don't recall any of these three activ:3es 15:21:19

In ADT meetings. 15:21:25

Q. What I am trying to do here Is - I don't want 15:21:27

to know who you met at ADT meetings, okay, because now you 15:21:29

have just told me that you did not really exchange the 15:21:34

competitive Information that I am interested In, okay? 15:21:37

A. Okay. 15:21:39

Q. So I just want to know about other people. So 15:21:40

have we exhausted Samsung; Is that Mackowlak and Tom Quinn? 15:21:43

MR BLEOIMAN: Object to the form of the question. 15:21:48

A. As far as l recall, yes. 15:21:57

Q. Did you have contacts with any 15:22:08

Elplda employees where you obtained or exchanged competitive 15:22:11

information? 15:22:15

A I had I think a meeting with Jim Sogas ho.'n 15:22:18

Elplda. 15:22:26

Q. One meeting? 15:22:28

A. -Maybe two, and then I think also two meetings 15:22:29

34 (Pages 130 to 133)

VERrTEXT NEW YORK REPORTING COMPANY212-267-6868 516-608-2400


Exhibit H

E 4% 1 1 2 8 ®If ®®9

HIGHLY CONFIDENTIAL

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United States District CourtNorthern District of California

San Francisco Division

In re DYNAMIC RANDOM ACCESS MEMORY(DRAM) ANTITRUST LITIGATION

This Document Relates to:ALL ACTIONS

CASE No.No. M-02-1486 PJH =

MDL No. 1486

HIGHLY CONFIDENTIAL

VIDEOTAPED DEPOSITION OF STEVEN APPLETON

TUESDAY, MAY 9, 2006

Reported by

PATRICIA J. TERRY

Idaho CSR No. 653

California CSR No. 9116

212-267-6868 VERITEXT NEW YORK REPORTING COMPANY 516-608-2400

HIGHLY CONFIDENTIAL

Page 2 Page 4

1 DEPOSITION Of STEVEN APPLETON, taken on behalf of plaintiffs, at 1 APPEARANCES (Continued):the Grove Hotel, 245 S. Capitol Boulevard, in the City of Boise, 2 FOR NANYA

2 State of Idaho, commencing at 9:30 a.m., on May 9, 2006, before 3 NA'IL BENJAMINPATRICIA 3. TERRY, CSR, RPR, a Notary Public in and for the ORRICK, HERRINGTON & SUTCLIFFE, LLP

3 State of Idaho, pursuant to notice, and in accordance with the 4 1000 Marsh RoadFederal Rules of Procedure. Menlo Park, California 94025-1015

4 5 (650) 614-7659

APPEARANCES: [email protected]

5 6FOR PLAINTIFFS FOR NEC

6 7ANTHONY D. SHAPIRO PAULA C MORENO

7 HAGENS BERMAN SOBOL SHAPIRO, LP 8 THELEN REID & PRIEST, LLP

1301 Fifth Avenue, Suite 2900 101 Second Street, Suite 1800

8 Seattle, Washington 98101 9 San Frandsco, California 94105-3606

(206) 623-7292 (415) 369-7232

9 [email protected] 10 [email protected]

10 -and- 11 FOR SAMSUNG

11 CADIO ZIRPOLI 12 MONA SOLOUK[

12 SAVERI & SAVERI, INC. SHEPPARD MUt11N RICHTER & HAMPTON, LLP

13 111 Pine Street, Suite 170013 17th Floor, Four Embarcadero Center

14 San Francisco, California 94111San Francisco, California 94111-4106

15 (415)(415)

21717-6816810

14 (415) 434-9100

16 0om15 msofouk1lsheppardmuIlIn.com16 [email protected]

171718 FOR INDIRECT PLAINTIFFS 18 FOR INFINEON1919

20 ROBERT). GRALEWSIQ, )R. 20 TAN]A SHIPMAN21 GERGOSIA14 & GRALEWSIG, LLP 21 KAYE SCHOLER, LIP22 550 W. C Street, Suite 1600 22 1999 Avenue of the Stars, Suite 170023 San Diego, California 92101 23 Los Angeles, California 90067-604824 (619) 230-0104 24 (310) 788-114725 [email protected] 25 [email protected]

Page 3 Page 5

1 APPEARANCES (Continued): I WITNESSES2 FOR MICRON TECHNOLOGY 23 GARY R. SPRATL]NG WITNESS;

ALEXANDRA 3. SHEPARD3 PAGE:

STEVEN R. APPLFiON4 GIBSON, DUNN & CRUTCHER, LIP 4 EXAMINATION 9

One Montgomery Street BY MR. SHAPIRO

5 San Francisco, California 94104-4505 5 EXAMINATION 215

(415) 393-8222 SY MR. GRALEWSKI

6 [email protected] Y 244

7 WILLIAM J. BAER 7

B MS.M5.

SOLOUBY SOLOU9Q

ARNOLD & PORTER, LLP a -*-*•8 44th Floor, 777 S. Figueroa Street 9 +IBITS

Los Angeles, California 90017-5844 10 EXHIBIT: PAGE:

9 (213) 243 400211 Exh 1 E-mail champ re Compaq review 13th Feb 29

[email protected] 12Eu1 2 US TTC - DRAMs and DRAM modules 34Exh 3 E-mail re Samsung so

10 -and- Exh I Lurch receipt 88

11 ROD LEWIS 13 Exh 5 E-mail drain re various information 100

12 MICRON TECHNOLOGY, INC. Exh 6 E-mail chain re updated competitive information 105

13 8000 S. Federal Way14 Exh 7 E-mail chain re Sub 0-2 Micron Technology

14 Boise, Idaho 83716-9632 IScapacity ins

Exh 8 E-mail re Toshiba/FUJitsu stale process 1o915 (208) 368-4553 E 9 E-mail re DRAM competition 111

16 [email protected] 16 Exh 10 Dinner receipt 114

17 Exh 11 E-mail re summary of meeting with Samsung 119

i8 FOR HYNIX17 Exh 12 E-mel chain re visit 124

19 Exh 13 Employee travel expense report - local 12B18 Exh 14 Lunch receipt 134

20 KIMBERLY M. PARKS 19 Exh 15 Micron antitrust policy statement 135

21 O'MELVENY & MYERS, LLP 20 Exh 16 Electronics Weekly article 157

22 400 S. Hope Street 21 Exit 17 Micron response to article 161

23 Los Angeles, California 90071-2899 22 Exh 18 Travel authorization form 175

24 (213) 430-72812324

Fxh 19 E-mail chain no Voit 182Exh 20 Memo re updated meeting with Nanya Technology 187

25 [email protected] 25 loch 21 E-maJ re information sharing with Elpida 189

212-267-6868 VER1TD(T NEW YORK REPORTING COMPANY

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Page 63

Page 62

an individual basis. I have to rely upon people 10:50:13

to do that, in particular the legal department, to 10:50:16

try to make sure the people were trained and 10:50:18

enforce the policies. 10:50:21

Q. What steps did you undertake, during 10:50:23

the time period of 1999 through June of 2002, to 10:50:25

Insure yourself that the people who were reporting 10:50:27

to you -- the direct reports, including Mr. Sadler - 10:50:30

were complying with Micron's antitrust compliance 10:50:34

policy? 10:50:37

A. Well, I relied upon the legal department 10:50:37

to do that 10:50:40

Q. That wasn't my question. Other than 10:50:40

relying on the legal department, did you take any 10:50:43

affirmative steps to insure that Mr. Sadler and 10:50:46

others were complying with Micron's antitrust 10:50:50

compliance policy? 10:50:53

A. We had a policy in place. 10:50:55

Q. Other than that, and other than relying 10:50:56

on your legal department, did you take any 10:50:59

affirmative steps? 10:51:01

A. Nothing beyond what I just said. 10:51:04

MR. SHAPIRO. Okay. Want to take a break? 10:51:05

MR. SPRATLING: Sure. 10:51:08

VIDEOGRAPHER: Time is 10:51. Off the 10:51:09

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Page 64

A- Similar to my comments earlier, that he 11:07:24

would occasionally come across Farhad and would 11:07:24

have contact with him. 11:07:32

Q. Were you aware that Mr. Sadler on 11:07:33

occasion would speak to Mr. Tabrizi about Hynbc's 11:07:37

pricing? 11:07:45

A. No. 11:07:46

Q. Were you aware that Mr. Sadler and 11:07:46

Mr. Tabriz) would discuss pricing trends In the 11:07:48

market? 11:07:51

A. No, 11:07:52

Q. Were you aware that Mr. Sadler discussed 11:07:52

with Mr. Tabrizi regarding issues relating to 11:07:55

supply in the marketplace? 11:07:59

A. No. 11:08:01

Q. Were you aware that Mr. Sadler had an 11:08:01

in-person meeting with Mr. Tabrizi and a DS Kim in 11:08:11

July of 2001 wherein they discussed pricing with 11:08:17

regard to a particular product? 11:08:22

A- I don't recall If I knew of the 11:08:24

meeting. You had two questions there. I don't 11:08:27

recall if I knew that he had met -- that were 11:08:30

not -- and your second question was? 11:08:32

Q. That was my question. My question was, 11:08:34

were you aware that Mr. Sadler had an in-person 11:08:39

record. 10:51:11

(Recess.) 10:51:12

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VIDEOGRAPHER: The time is 11:06. On the 11:05:37

record. 11:06:16

Q. BY MR. SHAPIRO: Mr. Appleton, before 11:06:20

we broke I was asking you about Mr. Sadler's 11:06:20

contacts with competitors. Do you recall that 11:06:24

area of questioning? 11:06:27

A. Yes. 11:06:28

Q. Were you aware, Mr. Appleton, that 11:06:28

Mr. Sadler met with Ken Hurley from Nanya - 11:06:35

strike that. 11:06:44

Mr. Appleton, were you aware that 11:06:44

Mr. Sadler spoke with Ken Hurley from Nanya 11:06:47

approximately five to ten times between December 11:06:5

2001 and May 2002? 11:06:55

A. No. 11:06:58

18 Q. Were you aware that they spoke about 11:06:59

19 price- related topics? 11:07:02

20 A. No. 11:07:05 20

21 Q. Mr. Appleton, were you aware that 11:07:05 21

22 Mr. Sadler had contacts with Farhad Tabrizi of 11:07:12 22

23 Hynix? 11:07:17 23

24 A. Yes. 11:07:19 24

25 Q. What are you aware in that regard? 11:07:19 25

Page 65

meeting with Mr. Tabrizi and DS Kim of Hynix in 11:08:42

the July 2001 time frame? 11:08:46

A. I don't recall it. I may have been 11:08:48

aware at the time that he met with them. 11:08:50

Q. Were you made aware by Mr. Sadler that 11:08:53

one of the. topics they had discussed at that 11:08:58

meeting was pricing by Hynix and Micron with 11:09:00

regard to a specific product? 11:09:04

A. No. 11:09:06

Q. Who is Sang Park? Do you know who that 11:09:06

is? 11:09:12

A. Sang Park is -- was the CEO. Prior to 11:09:12

that he was the CEO of Hynix. Prior to that he 11:09:22

was an executive at IBM that was responsible for 11:09:27

qualification of products and -- to IBM products. 11:09:31

And prior to that he was an executive at 11:09:36

Hewlett-Packard, with a similar function. 11:09:38

Q. Were you aware that Mr. Sadler had 11:09:42

communication with Mr. Sang Park where they 11:09:47

discussed supply issues in the DRAM marketplace? 11:09:52

A. Well, if that was the meeting that he 11:09:58

was at when he made his trip to see Samsung, 11:10:04

Hynix, and Infineon I had referenced before, then 11:10:09

yes. I was aware. 11:10:12

Q. And how did you become aware that 11:10:14

17 (Pages 62 to 65)

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DIN^ FF l ed-MeZD^T91off109

HIGHLY CONFIDENTIAL

Page 66

I Mr. Sadler had discussions with Mr. Sang Park, 11:10:16 1

2 wherein one of the topics of discussion was 11:10:20 2

3 over-supply in the marketplace? 11:10:22 3

4 A. I don't know if it was over-supply in 11:10:25 4

5 the marketplace. Was that the question? .Supply 11:10:27 5

6 in the marketplace? 11:10:30 67 Q. That's the question. 11:10:32 7

8 A. Then let me correct myself. I wasn't 11:10:33 a

9 aware that that was the topic. 11:10:36 9

10 Q. Okay. You were aware that they had 11:10:37 1011 discussions regarding supply in the DRAM market? 11:10:40 11

12 A. Capacity. 11:10:45 1213 Q. Capacity. And how did you become aware 11:10:46 13

14 of that discussion? 11:10:49 14

15 A. When Mike briefed me on his meeting -- 11:10:50 15

16 briefed me on his trip, that he was going to visit 11:10:56 16

17 the three companies that I've already mentioned - 11:11:00 17

18 Infineon, Samsung, and Hynix -- that he had 11:11:04 18

19 heard --and I don't recall if it was rumors about 11:11:08 19

20 one of the companies or rumors from one of the 11:11:12 20

21 companies, from the Taiwanese -- that there was 11:11:14 21

22 discussions about that maybe those guys might be 11:11:19 22

23 willing to took at something about capacity. 11:11:21 23

24 That's how I learned of it. 11:11:24 24

25 Q. Which "guys' would be interested in 11:11:26 25

Page 67

1 looking at something relating to capacity? 11:11:28 1

2 A. I don't know if he knew at the time, or 11:11:31 2

3 if he didn't know at the time. But he didn't say 11:11:35 3

4 anything to me. It's just major DRAM producers. 11:11:36 4

S Q. Let me see if I understood your last 11:11:39 5

6 response. Mr. Sadler briefed you, prior to going 11:11:41 6

7 on his trip, that one of the reasons he wanted to 11:11:46 7

3 go on this trip is because he heard that Hynix 11:11:50 8

9 might be interested in discussing issues related 11:11:54 9

10 to supply? 11:11:58 1011 A. He didn't say that. 11:11:59 11

12 Q. I'm asking. What is It that he told 11:12:00 12

13 you beforehand? 11:12:03 13

14 A. He told me that he had heard from one 11:12:04 14

15 of his contacts in Taiwan that some of the major 11:12:07 15

16 producers of DRAM might be willing -- or that they 11:12:13 16

17 were interested in looking at capacity: Is there 11:12:19 17

18 too much capacity in the market? 11:12:24 18

19 Q. All right. And the contact in Taiwan, 11:12:27 1920 you were aware that Mr. Sadler -- Mr. Sadler 11:12:31 20

21 indicated to you that he spoke to a Taiwanese 11:12:35 21

22 competitor about this issue? That's how he gained 11:12:39 2223 this information? 11:12:41 23

24 A. I don't recall - he may have said 11:12:42 24

25 "Taiwanese competitor' He may have said "a 11:12:44 25

Page 68

Taiwanese DRAM producer." And he may have said 11:12:46

.someone In Taiwan." I actually don't remember 11:12:49

the specifics on that. 11:12:51

Q. So you understood that, on the basis of 11:12:52

this discussion that Mr. Sadler had with somebody 11:12:56

in Taiwan, that he was going to take this trip to 11:12:59

find out what could be discussed with respect to 11:13:06

supply with the major DRAM manufacturers; Is that 11:13:09

accurate? 11:13:13

A. He was going to take this trip to see 11:13:14

what, I think. Essentially the rumors were about 11:13:18

withrespect to capacity of the DRAM manufacturers. 11:13:22

Q. Did Mr. Sadler identify who the 11:13:29

individual from the Taiwan DRAM manufacturer was 11:13:30

who gave him this initial information? 11:13:35A. He may have, but I don't recall. 11:13:38

Q. Where did this discussion take place 11:13:40

between you and Mr. Sadler prior to his taking the 11:13:42

trip? 11:13:46

A. In my office. 11:13:46

Q. And so was this a trip that was planned 11:13:47

relatively quickly after he informed you of this 11:13:54

information that he had come into possession of? 11:13:57

A. I don't know when you say -- what do 11:14:00

you mean 'relatively quickly"? 11:14:03

Page 69

Q. In other words, this was not a 11:14:05

regularly-scheduled trip; correct? 11:14:06

A. Well, he traveled to the Far East and 11:14:08

Europe quite often. So, yeah. 11:14:10

Q. Did he travel to the Far East to meet 11:14:12

with competitors often? 11:14:13

A. He met with competitors who were also 11:14:15

customers as we traveled -- as he traveled around 11:14:19

the world. So when you say "often," I don't know 11:14:22

what you mean when you say "often." 11:14:25

Q. I'm trying to set in context how his 11:14:27

trip came about. And you seem to be testifying 11:14:30

that he came to your office and he said, "I have 11:14:36

received information from a Taiwanese DRAM 11:14:39

manufacturer that the major DRAM manufacturers 11:14:43

might be interested in discussing issues relating 11:14:47

to capacity and over-capacity in the marketplace'? 11:14:50

MR. SPRATLING: Objection. Misstates his 11:14:53

testimony. 11:14:55

Q. BY MR. SHAPIRO: Well, you tell me 11:14:55

where I'm misstating your testimony. 11:14:56

A. I didn't know if he said "DRAM 11:15:00

manufacturer." And I don't recall if he said a 11:15:03

particular company, or if he said it was just the 11:15:07

Taiwanese, or -- but I remember the Taiwan 11:15:10

18 (Pages 66 to 69)

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HIGHLY CONFIDENTIAL

Page 70 Page 72

1 contact. 11:15:13 1 of this trip and his discussions, he would be 11:17:40

2 Q. All right 11:15:13 2 trying to determine whether or not some of these 11:17:44

3 A. So I don't recall how he characterized 11:15:15 3 other DRAM manufacturers would be taking some 11:17.48

4 who the Taiwan contact was. Secondly, it was 11:15:17 4 capacity off line; correct? 11:17:53

5 around capacity. 11:15:20 5 A. Yes. 11:17:57

6 Q.. All right:. 11:15:21 6 Q. All right. And you encouraged him to 11:18:00 =

7 A. It didn't -- I don't recall him saying 11:15:22 7 take this trip? 11:18:03

8 over-capacity or over-supply, If that's what you 11:15:24 8 A. That's not true. 11:18:04

9 characterized It as. But it was capacity. 11:15:27 9 Q. Old you discourage him from taking this 11:18:05

10 Q. And you had previousky been on record 11:15:30 10 trip? 11:18:07

11 to your employees complaining about the fact there 11:15:33 11 A Na, I did not discourage him. 11:18:07 ?

12 was too much capacity In the DRAM industry; correct? 11:15:3 12 Q. You were aware that he was going to II:IB:09

13 A. Well, complaining is a relative term. • 11:15:40 13 take the trip, and you authorized him to do so? 11:18:11

14 We've had very large influxes of supply over many, 11:15:43 14 A. Well, he said he was aware of this 11:18:13

15 many years, which is why we have such a cyclical 11:15:49 15 information. He wanted to take the trip to see if 11:18:15

16 business. So I've clearly pointed out many times, 11:15:52 16 it was true, to explore it. And I told him that I 11:18:18

17 in the 20 years prior, about the supply and demand 11:15:55 17 didn't think it was possible, that I didn't 11:18:23

18 profile in the Industry. 11:16:01 18 believe it, We're highly competitive. We don't 11:18:25

19 Q. And your perception is that one of the 11:16:03 19 trust our competitors, so to speak. 11:18:29

20 reasons that there were low prices with respect to 11:16:05 20 And the accurate -- if the information 11:18:33

21 DRAM was that there was too much capacity in the 11:16:11 21 that they have is accurate, and if he wanted to he 11:18:35

22 market; correct? 11:16:14 22 could, but I didn't think it was going to happen. 11:18:39

23 A. There are really two primary variables. 11:16:17 23 And in fact it didn't happen, and in fact it 11:18:42

24 One is the demand profile, one is the supply 11:16:22 24 wasn't true. But if he wanted to do that, that 11:18:45

25 profile. When those are out of balance, then 11:16:25 25 was okay with me. 11:18:47

Page 71 Page 73

1 you'll either have too much supply or not enough 11:16:28 1 Q. So you told him it was okay with you 11:18:47

2 supply in the marketplace. 11:16:30 2 for him to take a trip where he would be visiting 11:18:49

3 Q. And you felt that the supply profile 11:16:31 3 with representatives from Samsung, Hynix, and 11:18:52

4 was out of balance; correct? 11:16:33 4 Infineon? 11:18:54

5 A. At that time we believed there was too 11:16:37 5 A. Yes. 11:18:56

6 much supply in the marketplace. 11:16:41 6 Q. And to the best of your knowledge, he 11:18:56

7 Q. And you had been on record saying that 11:16:42 7 did visit with representatives from Hynix, 11:19:00

B on numerous occasions, both to your employees; 11:16:46 8 Samsung, and Infineon during that October 2001 11:19:03

9 correct? 11:16:50 9 trip? 11:19:06

10 A. Many times throughout the prior two 11:16:52 10 A. Yes. 11:19:06

it decades. 11:16:54 11 Q. And you're also aware that he met with 11:19:07

12 Q. Right. And then Mr. Sadler comes to 11:16:54 12 representatives from other DRAM manufacturers on 11:19:10

13 you and tells you about this Information he's 11:16:59 13 that same trip? 11:19:14

14 received from someone in Taiwan; correct? 11:17:02 14 A. I don't recall the others, but as 1 11:19:15

15 A. Yes. 11:17:05 15 mentioned before I'm not surprised that he did. 11:19:18

16 Q. And he tells you that he's going to be 11:17:06 16 He said he was going to go visit several of the 11:19:20

17 meeting with representatives from the major DRAM 11:17:09 17 producers. 11:19:22

18 manufacturers, or he planned to meet with 11:17:12 18 Q. Now when he apprised you of his purpose 11:19:25

19 representatives from the major DRAM manufacturers, 11:17:15 19 in taking this trip -- Mr, Sadler, in October of 11:19:30

20 to discuss capacity; correct? 11:17:18 20 2001 -- did you make any inquiry of anyone whether 11:19:33

21 A. The way that he characterized it was, 11:17:24 21 or not this comported with Micron's policies with 11:19:40

22 he was going to visit with -- he was going to 11:17:27 22 respect to antitrust compliance? 11:19:44

23 visit with the major DRAM producers and see if it 11:17:30 23 A. No, I did not 11:19:46

24 was true. 11:17:34 24 Q. Who else besides yourself at Micron 11:19:47

25 Q. Okay. And you understood that, as part 11:17:34 25 knew that Mr. Sadler was going to be taking this 11:19:53

19 (Pages 70 to 73)

212-267-6868 VEPJTEXT NEW YORK REPORTING COMPANY 516-608-2400


Exhibit I

F5 8 Po"%of 9

•^1

From : Schaefer Peter (ITC) -

Sent: Thursday, September 20, 2001 5:25 PM

To: Eggers Harald (MP Leitung)

Subject: RE: discussion with M. Sadler

8) On the assumption that Hynix gets new money, they would consider to take supply out of

the market if others do the same; either by reducing wafersiarts or destroying all inventories.

Follow up next week (maybe after press announcement) -

9)1(W Lee was planned to meet Appleton next week but canceled the meeting. MU thought

Lee wanted to talk about cut backs.

Peter Schaefer

-Original Message--

From: Schaefer Peter (ITC)

Sent: Thursday, September 20, 2001 5:24 PM

To: Eggers Harald (MP Leitung); Florian Heinrich (MP SM); Hirt Georg (MP PPC RE)

Subject: discussion with M. Sadler

t talked to Mike Sadler_

1) They will make an announcement on Tuesday next week on their bad quarterly results.

They will write down whatever they can.

2) They are at a 100 mil. 256M Equiv. quarterly running rate right now. They cannot sell their

whole production, so they are building up inventory. .

3) They are just about to ramp 256Mb on 0.15 micron. It is riot cost cernpetitive with the 128M.

They are "soon" at 500k 256M per week, but will not convert lines until they have the cost

crossover.

EXHIBIT

HIGHLY CONFIDENTIAL- Pursuant to Protective order 1EIITNA01147896

HMMOMRUNWO 9

4) They will get significantly more output the next few months because of their 0.15 micron

ram€r. 0.13 micron will start in the first half of 2002. _

5) Mike is NOT very confident in Hynix NOT getting new, fresh credits.

6) He heard rumors on management changes within Samsung (WY Lee) but'not confirmed.

7) Micron made an offer to NEC to produce DRAMs for them and put NEC labels on, but did

not hear anything back.

Peter Schaefer

Peter Schaefer

Memory Products Group

Infineon Technologies North America

'Phone 408-501-5757

Fax 408-501-5987

peter.schae€er@infineon_com

ITNA01147897

HIGHLY CONFIDENTIAL - Pursuant to Protective Order


Exhibit J

Case 5:04-cv-04156-JW Document 222-21 FFFFdd1 Ol1J2&9008 P@ggE22 of 40

Case M :02-cv-01486-PJH Document 1458 Filed 03/07/2007 Page 94 of 109

From: Zltzewitz Andrea. von (COO)

Sent: Monday, October 15, 2001 12:23 AM

To: Schaefbr Peter (ITC)L

Subject: Re: Memory preliminary Sake Sep 01(inclu. USA f. 22.09.01):.25716%/+ 25%

Intel continues to be a low-end promoter ...... or are we still not properly represented inthe high end (50% MA)???

Discussion with M. Sadler was good, M is apparently prepared, now we still have toconvince S .... further communication via phone or face-to-face....

Regards, AvZ

----Urspdingtiaa Nachricht----From: Schrpeter (tFC)Sent: Saturday , October 13, 2001 12:08 AM

To: Zitzewltz Andrea von (COO)Subject : RE: Memory preliminary Was Sep 01 (inclu . USA r. 28.09.01 ): 8S'7/6'91+ 25%

We are just shifting intensively to 256 Mb.

However, we are still limited by the 810 chipset of Intel , which still does not support 256Mb. This chipset is in production by KA and RA ( for reasons of convenience customersonly want a part number of course ; we have already resolved this with CPQ and DELL).Moreover it is blocking the aftermarket (the risk that the end customer upgrade will befor an 810 chipset is high . The 128 Mb is thus the product of choice for Kingston, PNY,etc.).This leads to the result that we continue to need 128 Mb.

Regards,

Peter SchaeferP.S.: How was the meeting with Mike Sadler?

---0rigine] Mc sage-----From: Zitzcwitz Andrea von (COO)Sent: Wedoesday, October 10, 20015:26 AMTo: Schaefer Peter (ITC)Subject: Re: Memory pre{irnioary Sslas Sep 01 (uclu. USA f 28.09.0!): SS'716'9/+ 25%

What is actually stopping us from shifting to 256 M more "aggressively"? (In fact, Hynixcannot do that!)

-------- Original Message------ _-

HIGHLY CONFIDENTIAL- Pursuant to Protective Order ITNA01139678

^116fT

/2-0 6


Case 5:04-cv-04156-JW Document 222-21 FFFFdd1 Ol1J2 9008 P@ggE28 of 40


From: Schaefer Peter UTC)Sent : Wednesday, October 10, 2001 1:00 PM

TnL Zitzawitz Andreas von (COO)Subject: Re: Memory preliminary Salts Sep 01 (indu. USA f. 28.09.01): 957169/+ 25%

According to Mackowiak there have been talks between Hynix and SEC some time ago,but they were unsuccessful.

The clear tactics of SEC is to eliminate the weak (which is Hynix) from the market byaggressive pricing and aggressive shifting to 256 Mb.

It is still possible that SEC will buy parts of Hynix if the package is right. On the otherhand there is a very strong interest of SEC in the Toshiba Flash Division.....

P. Schaefer--Original Mcsasgp --From: Zit7Avz[z Andrea) Von (COO)

Sent : Monday, October 08, 2001 12:16 AM

To. Schaefer Peter (ITC)Subject: Re: M ry praliminary Sales Sep 01 (inclu, USAF. 28.09.01): 85'7/6'9/+25%

Thank you

Now it is 31M (instead of 27). We should not forget, however, that we are making 4-4-5weeks of sale and thus Sept. rather represents 25M x 13/3/5 = 21 M and thereby the worldwould be more understandable again....

What is Samsung doing regarding Hynix and how does S see the future of H?

AvZ

PS: A broadliner is easier to distribute, but otherwise it only has disadvantages... andwith our MP distribution we don't need that.....

._: ----Original Message------ --I -From : Scharer Peter (ITC)Sent on : Sunday. October 7, 2001 2:03 PM

To: Zitzewitt Andreas von (COO)Subject: BE. Memory prdiminery Sales Sep 01 (nctu. USA f. 28.09 . 01): 85716`91+ 25%

I now have quite complete figures for Samsung of September (unfortunately not of thequarter, but details are still interesting):

WW Sales approx . 31 M 256M Equiv. thereof:Almost 10M 256M (all synchronous, barely any DDR and RDRAM), only 4M to the Int.Key Accounts, approx . 1 M regionally in Japan and the US, 0.8M in Korea, 1.3M inEurope, 2M in Taiwan (regional business probably for the most part parity)IOM 128M RDR.AM



Case 5:04-cv-04156-JW Document 222-21 FFFFdd Ol1J2&9008 P@@@E2@ of 40

Case M :02-cv-01486-PJH Document 1458 Filed 03/07/2007 Page 96 of 109

4M 128M DDR13M 64M2M SGRAMRest 128 M SDRAM

According to Mackowiak no stock was created. US business 45M 64M Equiv. stock of256Mpresently 6M (thus 2-3 weeks). Also WW stock is said to be between 2-4 weeks. He does nothave any access to the stock on Die Bank level, but he knows that in summer RDRAM hadbanking, which only went through the BE in September. Moreover the niche products aremanufactured in batch and stored temporarily.

From the Mbit volume we are thus presently at 70-80% of the SEC volume, however SEC is stillproducing 4M, 16M, SGRAM, x32 components and RDRAM (which are said to be moreprofitable) at a significant volume, which considerably pumps up its sales again.

SEC wants to have a 30-35% market share, is rejecting wafer start reductions and is badmouthingthe market for 2002 (also publicly) in order to curb the hopes of possible withdrawal candidates.The 2 new 8-inch works (1 DRAM, I Logic) are still ramping with SRAM and DRAM, inQ2/2002 the 300mm pilot line is said to be on 5000WSPM.

They have concluded a deal for 18$ with Medion in Germany!! for a 256M-based 256MBmodule (to be delivered in the next 6 weeks, volume I.SM 256M Equiv.). Samsung holds the bestposition by far and it is aware of that, is using this (like DELL in PC) to ruin a part of the industryknowing that after the shakeout it will have a market share of more than 30% with the broadestproduct portfolio and the best prices.

Regards,

Peter Schaefer

..--Original Message----From : ZLtzewitz Andreas von (COO)Sent; Saturday, October 06, 20014:05 AMTo: Schaefer Peter (1TC)Subject: Re: Memory preliminary Sales Sep 01 (inclu . USA f. 28.09. 01): 85'716 `9/# 25%

1. Consider not only September, but rather Q, since this month has 5 weeks (July +August only have 4)

2. Samsung happens to have considerably more capacity, can therefore not "only"sell as much as we do without accumulating stock ...

-------Original Message------From :Sehaefer Peter (ITC)Sent : Thursday. October 4, 2001 9:06 PMTo: Zittcwitz Andreas von (COO)Subject: RB: Memory prei'iminary Sales Sep 01 (indu_ USAf 28. 09.01): 85t1I69/+ 25%

I am getting the details tomorrow. The input so far is that Samsung has sold 11.25M inthe USA in September



Case 5:04-cv-04156-JW Document 222-21 FFFFdd1 Old2&9008 P@@@E86 of 40


256M Equiv., thus almost 10% more than us. According to Mackowiak they have therebyreached their unit number plan, but they failed to fulfill the $ plan . I will get the WWnumber tomorrow,

Analyst Victor de Dios estimates the Samsung stock at 3-4 weeks. However, he issuspecting another 2-4 weeks stock on wafer level at Elpida, Micron and SEC.

Regards,Peter Schaefer

-Ortgiaal Message --From: Zitzewitz Andrew von (COO)Sent: Thursday, October 04, 20013:39 AMTo: Schaefer Peter (ITC)Subject: `FW: Memory preliminary Sales Sep Ol (inclu. USA £ 28. 09.01); 85'716'9/+ 25%

You have a good local connection to Samsung. Did they really only sell 27 million? Thenthey must have accumulated a huge stock in the meantime!!

Regards, AvZ

-»---Original Message.--

From: Florian Heinrich (P SM)

Sent on: Thursday, October 4, 2001 12:17 PM

To:. Tzitochke Holmer (MP SM PC); Adlard Jason (MP SM SIC); Ang Hook Pho (80 MP AP);Auaudre Claire (MP PM); Bahr Ralph (UP SM S); Batttata Mat (MP SM SK); Becker Wolfgang (WSE); Bending Herwig (t? SMM S); Bigelkc Susanne (MP SM SIC); Blumstengai Pt ymse (P SM);Brlccbi Roeamarla (1P SM SED); Buchner Matthias (MP PM); Buckermun (P OP); CorwinRudd (ITC); Catterell Andrew (MP OP CD), du Pre= Jan (ITC); Duoreggarletahard (MP BE CT);Eekelmann Peter (MP SM MAC); Eggers Ilarald (MP Leitung); Bisenschmid Christie (Ivy LOG);Everke Alexander (MP NCS); Fleisahmann Klaus (h9 BDR); Forbes Steven (Sales UK); GatzkeCaraten (MP OP); Giuseppe Sandra (10 SM PM2); Grassinger Stefan (Ivy PM); Gregor Erik (MP SMM C); Haberabwmpf Thomas (MP BA SMPC), Hahn Axel (Ivy PM); Fle6ser Guenter (UP Sales);Hildebrandt Dirk (MP SM SK); Hofer Reinhard (MP SM. S K); Horninger 1Gr1-Heinz (MP GPS); HuthBeatrix (MP SM); Igelbrink Cbristoph (MP CM); Kondo ]law (]P MP); Ieannm Cartne (MP SM S);Keaamler Wolfgang; Kaopplk Matthlrs (S MM Q4); Kohlea Frank (ivy SM SK); Kolb Georg (WOP PI); Konwitschny Christian (ice.' SM PC); Kwek Chiang Hog (S AP AP); Lamberts Mark (ITC),Lirn Ahreham (ITC), Gm Abraham (UP SM S); Low Took Wen, William (MMP AP); MajenmMichael (bP BA); MaJioowski Sandra; Maratha! Fdhr, Meuse Michael (bg SM 5); Marko An (MPSM S); Motola Reeio6i (IP NP); Muth Roland (M2 SM SiC); Nahogyil Marilca (IP SM 3); Noel Clark(MP SMM GS); Nuedling Hans-Peter (MP CM); Okamoto Kazuhiko (11? MP); Ord Nicholsa (MP SMPM); Parker Ned (Sales UK); Pavic Neven (MP SM LOG PDC); Pecher Herbert ()e PC); Pieach Blmar(MP SM S K); Raudsebus Bernd; Reuter Marline (MP SM SK); Riecir Tomas (MP BA SM PC); SaulSharon (MP BA SMPC); Schaefer Peter (ITC); Schirko Andreas (MP SMLOG CL); Schmitz Klaus(80 MP Al); Soucheiron Joaquin (MP SCM); Stelnbrunner Birgit (MP SMLOG PDC); Stevens Paul(Bracknell); Tang Kai Chow (80 MP AP); Thuerer Karl-Heinz (MP OP); Vogt Ruediger QAP SMMS); Yilmazer Hakan (MP CM); Zitiewitz Andreas von (COO)Subject: Re: Memory preliminary Sales Sep 01(knclu. USA f 28.09.01); 85'7/691-+ 25%



Case 5:04-cv-04156-JW Document 222-21 FFFFdd1 Ol1J2&9008 P@@@EB6 of 40



.--.-----Original Message----- .

From: Tzitschke Holrner (MP SM PC)

Sent on : Thursday, October 4, 2001 11:49 AM

To: Adlerd, Jeson; Ang, HockPho; Aussudre, Claire; Bahr, Ralph Bartlsta, Anna; Becker, Wolfgang;Beaning, Herwig; B9galke, Susanne; Blumstengel, Peyman; Briochi , Rosamada; Buchner, Matthiee;Buckermann , Miehad; Corwin, Rudd; Cotterell, Andrew, du Prcez, Jan; Duercgger, Reinhard;

Fclcelmana, Peter, Eggers, Herold; Eisenschmid , Chrisnn; Evrrka, Alcmder, Fleisdmaaao, Rleus; .Florian, Heinrich; Forbes, Stevan; Gatzke, Carstens Giuseppe, Saadro; Graisinger, Stafut; Greger, Enn%-B raturnpf, Thomu; Hahn, Axel; Hefiur, Guenter,10debrand% Dirk; Hofbr, Reinbsrd; Horninger,

Kad-Heinz; Huth, Beatriz; Igelbrinl. Chtistopb; ilaio.kondo@infieeoncom ; Jeaenin, Caine; ICemrnler,

Wolfgang; Knoppik Matthias; Kohlert, Frank Kolb, Georg; Konw tsclmy, Christian; Kwe1S, Chiang

Hng Lamberts, Mark; Lim, Abraham; Lirtl, Abraham; Low, William; Ma]erus Michael; Malinowalo.

Sandra; Marchael; Mehne, Michael; Mlerloo, An; Motold, Kenichi; Muth, Roland; Naboggi, Marks;Noel. Clark Nuediing, Hans-Peter; Okunoto, Keauhiko; Ord,Nimbolas; Parker, Neil Pavia, NeverPeoher, Eerbeit; Piesch, Elmar; Raudschus, Betnd; Reuter, Markus; Rieolr, Thomas; Saul, Sharon;Schaefer, Peter; Sehinkn, Andress; Schmitz, Klaus ; Soucheiron, Joaquin; Steinbtuoner, Birgit; Stevens,Paul; Tang,.Kai Choon; T serer, Karl-Heinz; Vogt. Ruedigr, Yilmazer, Hakan Zitzewitr, Andreas vonSubject: Memory preliminary Sales Sep 0] (ludo. USA f 28,09 .01): 85'7/6'9/+ 25%




Case 5:04-cv-04156-JW Document 222-21 FFFFdd1 Ol1J2 2008 P@@@E82 of 40


[see source for link]

Best regards




Case 5:04-cv-04156-JW Document 222-21 FFFFdd1 Ol1J2 2008 Pff ggE38 of 40

Case M:02-cv-01486-PJH Document 1458

Prom Zitzewitz Andreas von (COO)

Sent : Monday, October 15, 2001 12:23 AM

To: Schaefer Peter (ITC)

Filed 03/0112007 Page 94 of 109

ImSubject: AW: Mernary preliminary Sales Sep 01(wclu . USA f. 29,09 .01).-- 95'7/e9/+

Intel ist also nachwievor ein low end promoter ............oder sired wir nachwievor im high end niehtriettig vertreten (50% MA) 771

Gesprrch mit M.Sadler war out, M 1st glaubbaft bereft , nun gilt es S zu Obu=gen ..... weitereKommunikation via phone Oder face-to-face....

Grub, AvZ

--Ursprimgl1 he Nacbricht----Von: Schaefer Peter (ITC)Creseadet : Samstag, 13.Oktober 2001 00:38An_ Zitzewitz Andreas von (COO)Betre$ RE: Memory preliminary Sales Sep 01 (inclu . USA f. 28.09.01): 851716191+ 25%

Wit "en gerade stark auf den 256Mb.

Uns limitiert jedoch der 810er chipuet von Intel, welcher immer noch keine 2562db unterstuetz . I)ieserChipset 1st in der Produktion bei den KA and RA (Kunden wollen natuerlich aus Bequemlichkeit oureine Partnumber, wir haben dies bei CPQ and DELI, bereits ueberwunden).Darueberbinaus blocldert erden ABermarket (die Gefahr, dass der P.rtdkundco-Upgrade fuer ein 810er chipset is(, 1st, hoch. Sornit istder 128Mb bei Kingston, PNY, etc. das Produkt der Wahl).Das fuchrt daze, dass wir weiterhin 128Mb brauchen.

Gruss,

Peter Schaefer

P.S.: Wie war denn dasMeeting mit Mike Sadler?

-----Original Message--From: Zitzewitz Andreas von (COO)Sent: Wednesday, October 10, 2D01 5:26 AMTo- Schaefer Peter (ITC)Subject: AW: Memory preliminary Sales Sep 01 (oclu . USA f. 28.09.01): 85'7/6'9/+ 25%

was limitiert uns eigentlich noch "aggressive[' auf den 256M uberzuphaseo ? Nat kann Hynix nSmlichnicbt I)

---UrsprungLche Nachricht---•

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Von: ScbathrPeter (1TC)Gesatdet Mittwoeh, 10. Oktober 2001 13:00An: Zitzewitz Andreas von (COO)Bette RE: Memory preliminary Sales Sep 01 (mcht. USA f. 28.09.01): 85'7/6'9/+ 25%

lout Mackowiak gab as vor gersomer Zeit Geapraecbc zwischen Hynix and SEC, die aber erfolglosbliebem

Die Idarc SEC Taktik 1st m die Sehwachen Nod sotnit Hynix) aus dem Markt zu draengen dutchaggressive Preise and aggrassives Ueberphasen auf 236Mb.

Es ist dtnnocb denkbar, das SEC, Tetic von Hynix kaufen wind, wenn daa Paket stinunt.Andereneiu bestebt sehr starkes Intei-esse von SEC an der Toshiba Flash Division...

P. Schaefer

-Original Message-From: Zitzewitz Andreas von (COO)Sent: Monday, October 08, 200112:16 AMTo: Schaefer Peter (TTC)Subject: AW. Memory preliminary Sales Sep 01 (inclu . USA f. 26.09.01): 857/6'9/+25%

Danke

Nun sind as 31M (statt 27). W'ir sollten such nicht vergessen, daft wit 4-4-5 Wochen Umsatz machenand darnit der Sept. eher 25M x 13 / 3 15 - 21 M repr8sentiert and damit ware die Welt wiederverstandlicher ......

Was macht Samsung bzgl Hynix bzw . wie sieht S die Zukunft von H ?

AvZ

PS: Ein Broadliner tut sich zwar leiohter irn Vertrieb , ansonsten hat er nut Nachteile ..... uod milunserem MP-Vertrieb brauchen wit das ja such nicht ......

---Uraprangliche Nachricht---Von: Schaefer Peter (ITC)Gesendet Sonntag, 7. Oktober2001 02:03An: Zitzewitz Andreas von (COO)Betreff- RE: Memory preliminary Sales Sep 01(mclu . USA f 28 . 09.01): 85'7/6'91+ 25%

Habe nun ein recht koplettes Zahlenwerk von Samsung is September (leider nicbt vorn Quartal, aberDetails rind dennoch interessant):

WW Sales ca . 31M256MEquiv. davon:knapp IOM 256M (alles Synohroo , kaum DOR and RDRAM), lediglich 4M an die Int. Key Accounts,ca IM regional in Japan and US , 0.8M in Korea, 1.3M in Europa, 2M in Taiwan (regionales Geschachwahrscheinlicb aunt groessten Tell Parity)1 OM 128M BDRAM

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4M 128M DDR13M 64M2M SGRAMRest I28M SDRAM

Laut Mackowiak wurde kein Lagerbestand sufgebaut. US Geschaeft 45M 64M Equiv. Lagetbestandvom 256M derzeit 6M (somit 2-3 Wocben). Auch VAV soil Lagerbestand zwisciten 24 Woehen began.In den Lagerbestand aufDie Bank level hat er keinen Biablick, er weiat aber, loss as im Sommer geradebei RDRAM die banking gab, der Brat lm September durch des BE Sing. Attsserdem wardenNieaebenprodukte im Batch gefertigt and zwisebengelagert.

Vora Mbit Volumes sind wir soarit momentan bei 70-80'/. des SEC Volumens, allerdings fertigt SECirnmer noch 4M, 16M, SGRAM, x32 Bausteine and RDRAM (welcher profitable rein soil) imsigni5kanten Volumes, was risen Umaatz natuertich wesentlicb aufpurnpt.

SEC will 30-35% Marktanteil haben, lehnen Waferstartreduzierungen ab, and reden den Markt flier2002 Ouch oeffentlich) schlecht. um Hohwngea moeglicher Ausstiegskaadidaten zu drasseln. Die 2aeuen 8 inch Werke (1 DRAM, 11,ogic) rampen noch mit SRAMund DRAM, Im Q2/2002 sell die300mm pilotlinie angeblich auf5000WSPM rein.

Sit haben mit Medion in Deutschland einen Deal fuer 18$11 flier tin 256M basiertes 256MB Modulabgeschlossen (zu liefem in den naechsten 6 Wochen, Volumes I .SM 256M Equiv.). Samsung ist mitAbstand an beaten positioniert and sie wisaen des, tretben damit (wit DELL im PC). eincn Teil derInduatrie an den Abgrund wohlwissend dass ale each dam Shakeout bei ueber 30% Marktaatcil rind nitdam breitesten Produktportfolo' and damit den besten Preisen.

Chess

Peter Schaefer

---Original Message-----From: Zitzewitz Andreas von (COO)Sent : Saturday. October 06, 2001 4:05 AMTo: Schaefer Peter (1TC)Subject: AW: Memory preliminary Sales Sep 01 (inclu. USA f. 28.09.01): 85'7I619/+ 25%

1. nicht nur September anschauen, sondern Q da dieser bet uns 5 Wochen umfaft (July+August Bur 4)2. Samsung hat nun maf will mehr Kapazititen, kann also nicbt "nur' so vial wit wir verkaufen ohneBcstande aufzubauen....

----Ursprungliehe Nachricbt----Von: Schaefer Peter (ITC)Cresendet: Donncrstag, 4. Oktober 230121--06An: Zitzewita Andreas von (COO)Betrc F: RE: Memory preliminary Sales Sep 01 (inclu. USA f. 28.09. 01): 85•716'9& 25%

Ich bekomme morgen die Details. Der bisberige Input ist, loss Samsung ire September in USA I I.25M

ITNA01 139580

HIGHLY CONFIDENTIAL- Pursuant to Protective Order

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Case M:02-cv-014$6-PJH Document 1458 Filed 0310'7/2007 Page 97 of 109

256MFquiv. verkauit hat, also knapp 10% mchr als wir, Laut Mackowiak haben sit damit ilmatStueck1at lplan enei ht, den S-Plan aber verfeldt Die WW Zahl bekomme ich morgen.

Vom Analyst Victor de Dios werden die Swnsuag Bestaende auf 3 -4 Wochan geschaetzt. Allerdingsvermutet er weitere 24 Wochen Bettaende auf Wafer-Level be! Elpida, Moron and SEC.

Peter Schaefer

-Original menage-From: Zitzewitz Andreas von (COO)Sant: Thursday, October 04, 2001 3:39 AMTo: Schaefer Peter (iTC)Subject: WG: Memory preliminary Sales Sep 01 (indu. USA f_ 28.09 .01): 85'7/6'91+ 25%

Sic haben ja einen gutea lokalen Draht zu Samsung. Haben die wirk]ich nur 27Mio verkault ? Dannmussen die ja mittlerweile riesige Bestilnde haben I

Gtut, AvZ

----Urspr0ngliche Nachricht----Von: Florian Heinrich (1v)P SM)Gesendet: Donnerstag, 4. Oktnber 2001 12:17An: Tzitschke Holmer (MP SM PC); Allard Jason (MP SM SK); Ang Hock Pho (BO MP AP);Avssudre Claire (MP PM); Bahr Ralpb (MP SM S); Battlsta Anna (}vlP SM SK); Becker Wolfgang (MPSE); Denning Hewig (MP SMM 5). Bigalke Susanne (MP SM SK); Bhuastengel Peyman (IvIP SM);Bricchi Rosamaria (MP SM SED); Buchner Matthias (NIP PM); Buckermann Michael (ME OP); CorwinRudd (ITC); Cotterell Andrew (MP OP CD); du Preez Jan (ITC); Duereggerlteinhard (ivy BE CT);Eckelmann Peter (MP SM MAC); Eggers Harald (ME' Leitung); Eisensehmid Christin (1O LOG);Evcrke Alexander (1? NCS); Fleischmann Klaus (ME' BDA); Forbes Steven (Sales UK); GatzkeCaraten (MP OP); Giuseppe Sandro (he SM PM2); Grassinger Stefan (he PM); Greger Brik (10 SMM C); Haberstumpf Thomas (MP BA SMPC); Hahn Axel (MP PM); Hefner Guenter (MP Sales);Hildebrandt Dirk (MP SM SK); Hofer Reinhard (ME' SM S K); Hotuinger Karl-Heinz (N8 GPS); HuthBeatrix (? SM); Igelbrink Christoph (MP CM); Kondo Aato (JP MP), leannin Carine (MP SM S).Kammler Wolfgang; Knoppik Matthias (S MM CM); Kohlert Frank (MP SM SIC); Kolb Georg (MPOP PI); Konwitschny Christian (1& SM PC); Kwek Chiang Grog (S AP MP); Lamberts Mark (ITC);Lim Abraham (ITC); Lim Abraham (t? SM S); Low Teck Wnen, William (M MP AP), MajerusNScbael (MP BA); Malinowsld Sandra; Marshal Felix; Mehna Michael (ME' SM S); NLerloo An (MPSM S); Motoki Kenichi (JP MP); Muth Roland (ME' SM SK); Nahogyil Marika (14P SM S); Noel Clark(ME' SMM GS); Nuedling Hans-Peter (ME CM); Okamoto Kazuhiko (JP MP); Ord Nicholas (ME' SMPM); Parker Neil (Sales UK); Pavic Neven (tom SM LOG PAC); Peeber Herbert (tom FC); Piesch Elmar(MP SM S K); Raudschus Bernd; Reuter Markus (]v' SM SK); Rieck Thomas (he BA SM PC); SaulSharon " BA SM PC); Schaefer Peter (ITC); Schinko Andreas (IA? SM LOG CL); Schmitz Klaus(BO IA? AP); Soudteiron Joaquin (MP SCM); Steinbrunner Birgit (MP SMLOG PDC); Stevens Paul(Bracknell); Tang Kai Choon (BO M? AP); Thuerer Karl-Heinz (M? OP); Vogt Ruediger (MP SM MS); Yilmazrr Hakan (IA? CM); Zitzewitz Andreas von (COO)BetrefTe AW: Memory preliminary Salsa Sep 01 (inclu, USA f. 28.09.01): 85'716'91+ 25%

ITNA01139651

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Case M :02-cv-01486-PJH Document 1458 Filed 03/077007 Page 98 of 109

Dear all,I'd like to thank all ofyou for this great result. We are in the same ballpark as Samsung (they soldapprox 27 Mio 256Megv.)l1 That is an oustand ng performance. I ant very proud being part ofMP -especiellty these days where the market conditions are very tough the complete MP team prooved itsstrengths.

Keep fighting the competition, keep serving our customers at best. We will make itf 1


JnCmeon Technologies AGMemory ProductsSales, Marketing do Logistics, MP SMPhone: +49-89-234-26771Fax: +49-89-234-22763Mobile: +49-175-221 6464

Important Note: This c-mafl may contain trade secrets or privileged,undisclosed or otherwise confidential information. If you have receivedthis e-mail in error, you are hereby notified that any review, copyingor distribution of it is strictly prohibited. Please inform usimmediately and destroy the original transmittal. Thank you for yourcooperation.

----tlrsprungliche Nech icht--Von: Tzitschkc Holzer (MP SM PC)Gesendet am: Donnerstag, 4. Oktober 2001 11:49An: Adlerd, Jason; Aog, Hock Pho; Aussudre, Claire; Bahr, Ralph; Battista, Anna; Becker, Wolfgang;Banning, Herwig. Bigalke, Susanne; Blurnstengel, Peyrean; Bricchi, Rosamaria; Buchner, Matthias;Buckermanrt, Michael; Corwin, Rndd; Cotterell, Andrew; du Preez, Jan; Dueregger, Reinhard;Eckelmann, Peter, Eggers, Harald; Elsenschmid, Christina Everke, Alexander; Fleischman, Klaus;-Florian, Heinrich; Forbes, Steven; Gatake, Carsten; Giuseppe, Sandro; Grassinger, Stefan; Greger, Erik,Haberstumpf Thomas; Hahn, Axel; Hefner, Guenter; Hildebrandt, Dirk; Hofer, Reinhard; Hominger,Karl-Heinz; Huth, Beatriz, Igelbriak, Christoph, [email protected]. Jeannie, Carina; Kemrnler,Wolfgang Knoppik. Matthias; Kohlert, Frank; Kolb, Georg, Konwitschny, Cluisdaa; Kwek, ChiangHng; Lamberts, Mark, Lim, Abraham; Lim, Abraham; Low, William; Majetus, Michael; MalinowslqSandra; Marched; Mehne, Michael; Mierloo, An; Motoki, Kenichi; Muth, Roland; Nebogyil, Marika;Noel, Clark Nuedling, Hans-Peter, Okamoto, Kazuhiko; Ord, Nicholas; Parker, Neil Pavia NevMPecher, Herbert; Piesch, F1mar; Raudschus, Bernd; Reuter, Markus; Rieck, Thomas, Saul, Sharon;Schaefer, Peter; Schinko, Andreas; Schmitz, Klaus; Soucheiron, Joaquin; Steinbnutaer, Birgit; Stevens,Paul; Tang, Xai Choon; Thuerer, Karl-Heinr, Vogt, Ruediger; Ylmazer, Haken; Zltzewitz, Andreas vonBetreff: Memory preliminary Sales Sep 01 (inclu. USA f. 28.09.01): 85'7/6'9/+ 25%

Please see link below.

Daily -. monthly - and Key Accounts reports:

ITNA01139882

HIGHLY CONFIDENTIAL - Aurwant to Proteetive Order

MmumwT t2r -121 F UmMUMM i8 3EBc,f4

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hupJ4nir&muc. irdneon.com/hl draia/Orgaaiution/!v8 BASM PGRcpoitilmdex.htm

Mit ffwm icb 1 ONOen

HOJm& TzitICbke1r&Ma Tedmi0sesWBA SM PCTe1-+49-89-234.28202

Fax: +49-89-234-21740

Emai: Ha1mc.TAhd*e®iefineon.com

ITNA01139683

HIGHLY CONFIDENTIAL - Pursuant to Protec ve Order


Exhibit K

rpbMIZIMAFERFM ^H ^9 g2 FF G ^ 8 P 4 5

From: ZitzewitzAndreas von (COO)EXHIBITSent: Monday, May 13, 2002 8:02 AM

To: Florian Heinrich (MP ML); Schaefer Peter (ITC)Cc: Eggers Harald (MP Leltung)Subject: pricing ,04 J

Prices are going down the drains

What is our current performance? Can we sell what we produce? Any discussions in the community to lower capautilization?

Rgds, AvZ



Exhibit L


Page 1

1 of 1 DOCUMENT

Copyright 2002 CMP Media, Inc.

Electronic Engineering Times

June 24, 2002 Monday

SECTION: NEWS; Pg. 1

LENGTH: 1003 words

HEADLINE: DRAMs under gun in antitrust probe

BYLINE: George Leopold and David Lammers

BODY:

Washington - U.S. antitrust enforcers last week lowered the boom on the global memory industry as they sought

evidence of anticompetitive behavior in a rapidly consolidating DRAM arena.

The probe launched by the Justice Department's Antitrust Division came in response to allegations of price fixing.

Antitrust experts said that the assembling of a federal grand jury in the Northern District Court in California to consider

alleged criminal violations of U.S. antitrust law is a serious threat to memory manufacturers.

"It sounds as if [the Justice Department] saw a spike in the DRAM prices and decided to take a look at it," said

Mary Azcuenaga, an antitrust attorney and former Federal Trade Commissioner. "If they find evidence ofprice fixing, I

expect them to be aggressive in pursuing a case" against DRAM makers.

Word of the Justice Department probe surfaced when Micron Technology Inc. (Boise, Idaho) confirmed that it had

received a subpoena last Monday from a federal grand jury in San Francisco as part of "an industrywide investigation

into alleged anticompetitive practices among DRAM manufacturers." Industry sources said investigators are examining

possible collusion in DRAM pricing and manipulation of manufacturing capacity.

Micron will cooperate in the investigation, a spokesman said, adding that the company "does not believe it has

violated U.S. antitrust laws." The spokesman also emphasized the volatility of the DRAM market and recent historic

low prices on the spot market.

Also confirming that they have been contacted in connection with the probe were industry leaders Samsung and

Infineon. By week's end the U.S. antitrust probe had spread to other DRAM manufacturers, including Elpida, Nanya

and Winbond Electronics.

In acknowledging it had been subpoenaed, Samsung Semiconductor Inc. (San Jose, Calif.) said that Justice

Department investigators are seeking documents and records related to its DRAM products. Samsung said the subpoena

did not implicate the company, adding that Samsung "is not a target of the investigation."

During the first quarter, analysts said, component costs rose as DRAM contract prices moved four times off their

December lows of less than $1. Due to the sudden rise in pricing and the declining demand, many hardware vendors

suspended their promotions for DRAM upgrades and began to adjust PC pricing to reflect the higher component costs.


Page 2DRAMs under gun in antitrust probe Electronic Engineering Times June 24, 2002 Monday

At one point, memory-per-box figures stabilized as contract prices moved toward the $4 to $5 range. But according

to a report by Dan Niles of Lehman Brothers, contract prices have since dropped off to about $3, with spot market

prices at just above $2.

Other than confirming an investigation was in progress, the Justice Department declined to provide further

information about the inquiry. John Kelly, president of the DRAM standards group Jedec, said most of the industry is

"completely in the dark" about the details of the probe.

The Justice inquiry was sparked in part by published reports of meetings in Asia among the major DRAM vendors,

including the apparent admission by a Mosel-Vitelic officer of price-fixing meetings that appeared in Taiwan's

Commercial Times on May 29.

According to an online version of the story, Mosel-Vitelic vice president T.L. Chang allegedly "confirmed that his

company had reached an agreement with Hynix Semiconductor Inc. and Samsung Electronics to push up DRAM prices

to $3 a chip by stopping dumping of the chips. Hynix and Samsung executives visited Mosel-Vitelic and Nanya

Technology Corp. recently to discuss the agreement," the newspaper reported. "Since then, the 128-Mbit DRAM price

has rebounded 62 percent, from $1.60 to $2.60 a chip."

Kenneth Flamm, a former Defense Department official who now teaches public policy at the LBJ School of Public

Affairs at the University of Texas-Austin, said any collusion among the major DRAM makers-if it did occur-may

parallel the price floors set by the U.S. and Japanese governments in the mid-1980s, the key difference being that these

"fair-market value" prices were deemed legal by two sovereign nations. Washington imposed sanctions against Japan, in

part for allowing Japanese-made DRAMs to move out to gray marketers at less than the fair-market value.

Then, as now, computer makers resisted any hint of price collusion or exaggerated consolidation in memory chips,

a major cost item in PCs.

Dell Computer chairman Michael Dell has publicly voiced his displeasure at excessive consolidation in the DRAM

business, which has 40 percent fewer players now than in the mid-1990s. And Dell has voted with his checkbook: In

early June Dell Computer and Taiwan's Nanya signed a five-year agreement that calls on Nanya to supply up to $3

billion worth ofDRAM modules to Dell.

Push to 300 mm

Nanya, which is roughly the size of Japan's Elpida Memory, recently signed a licensing agreement with Infineon

Technologies for 300-mm manufacturing technology and 512-Mbyte-and-beyond DRAM technology. Part of the

Formosa Plastics Group, Nanya intends to invest in 300-mm capacity in a drive to become one of the major DRAM

makers, said Ken Hurley, president ofNanya's U.S. operation.

Flamm at the University of Texas said the Nanya deal with Dell, the largest DRAM customer, probably means

more cost to Dell to qualify multiple suppliers. Given the consolidation in the memory sector, Dell may qualify more

vendors as a form ofprotection, he said.

In the late 1980s, during the movement to establish a U.S.-based DRAM company tentatively named U.S.

Memories, "We asked people if they were willing to pay more for DRAMs to ensure the presence of a U.S. supplier,"

Flamm said. "Dell was not interested then, and since the PC industry is so cutthroat now, I'm sure nothing has changed

in that sense."

http://www.eetimes.com/

Copyright © 2002 CMP Media LLC


Page 3DRAMs under gun in antitrust probe Electronic Engineering Times June 24, 2002 Monday

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