Γράφει ο ΑΝΤΙ 300
Οι ΓΕΡΜΑΝΟΙ της
Bayer μας «πουλούσαν» στα Ασφαλιστικά Ταμεία
αντικαρκινικό φάρμακο των 572 ευρώ προς 3.500 με επιβάρυνση των ασφαλιστικών ταμείων για τουλάχιστον 3.000 ευρώ ανά κυτίο κατά το Υπουργείο Οικονομικών…! Και ποιος έκανε το κορόιδο ; Αυτό που κάνει εντύπωση δεν είναι ότι μας φόρτωναν τα φάρμακα με υπερτιμολογήσεις ΓΕΡΜΑΝΟΙ ΕΙΝΑΙ ΑΥΤΟ ΞΕΡΟΥΝ ΝΑ ΚΑΝΟΥΝ αλλά πώς τους επιτράπηκε να είναι τροφοδότες του Ελληνικού Δημοσίου όταν η συγκεκριμένη εταιρεία είναι καταδικασμένη για απόπειρα απάτης, χρηματισμούς – δωροδοκίες, υπερτιμολογήσεις και καρτέλ τιμών σε άλλες χώρες και ποιο συγκεκριμένα στην Αμερική εδώ και πολλά χρόνια και γνωστό σε όλους. Το γεγονός ότι το έβγαλαν στην φόρα τώρα…… δεν κάνει καμία εντύπωση έτσι και αλλιώς θα έβγαινε στην φόρα μόνο του και η έκθεση τους θα ήταν ακόμα μεγαλύτερη, απλά βιάστηκαν να προλάβουν εξελίξεις όχι όμως να μπορούν να αποφύγουν τις ευθύνες! Ποιος τους επέτρεψε να είναι τροφοδότες του ΕΛΛΗΝΙΚΟΥ ΔΗΜΟΣΙΟΥ με τι πιστοποιητικά εγκριθήκαν ; Μήπως ήταν πλαστά (άντε σας βοηθάω και λίγο να τα φορτώσετε σε άλλους όπως κάνουν αυτοί οι καθώς πρέπει κύριοι του ΠΑΣΟΚ και άλλοι) ΑΚΟΛΟΥΘΟΥΝ ΟΙ «ΠΟΙΟΤΙΚΕΣ» ΤΟΥΣ «ΕΠΙΔΩΣΕΙΣ»
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FOR IMMEDIATE RELEASE Tuesday, November 25, 2008 WWW.USDOJ.GOV
CIV (202) 514-2007 TDD (202) 514-1888
Bayer Healthcare to Pay U.S. $97.5 Million to Settle Allegations of Paying Kickbacks to Diabetic Suppliers
WASHINGTON - Bayer HealthCare LLC (Bayer) has agreed to pay the United States $97.5 million plus interest to settle allegations that it paid kickbacks to a number of diabetic suppliers and caused those suppliers to submit false claims to Medicare, the Justice Department announced today. The settlement resolves allegations that Bayer engaged in a cash-for-patient scheme through which the company paid 11 diabetic suppliers to convert their patients to Bayer’s products from supplies manufactured by its competitors. The Tarrytown, N.Y.- based company manufactures diabetic self-testing supplies, including glucose monitors and testing strips. Bayer contracts with direct-to-patient diabetic suppliers who market and sell these products to beneficiaries and submit claims for reimbursement to Medicare. Between 1998 and 2002, Bayer allegedly paid Liberty Medical Supply Inc., one of the largest directto-patient diabetic suppliers, approximately $2.5 million to convert its patients to Bayer supplies. The alleged kickbacks were based on the number of patients that Liberty successfully converted to Bayer supplies and were disguised as payments for advertising. In addition, Bayer allegedly paid kickbacks of approximately $375,000 to 10 other diabetic suppliers to convert patients to Bayer supplies. "If medical device manufacturers want to serve Medicare beneficiaries they must follow the law," said Gregory G. Katsas, Assistant Attorney General for the Civil Division. "Paying healthcare suppliers to place a particular brand of device with Medicare beneficiaries violates the law and will not be tolerated." The settlement resolves claims submitted to Medicare by the 11 suppliers for Bayer supplies from 1998 through 2007. Under the terms of the settlement, Bayer agreed to enter into a corporate integrity agreement with the Office of Inspector General for the Department of Health and Human Services (HHS). "Device manufacturers who pay illegal kickbacks should expect to be held accountable," said Daniel R. Levinson, HHS Inspector General. "OIG's compliance agreement with Bayer includes specific requirements for the board of directors and management that will enable OIG to closely monitor company practices affecting Federal health care programs and beneficiaries." The investigation was referred to the Justice Department’s Civil Division, Commercial Litigation Branch, by the FBI and the Criminal Division of the U.S. Attorney’s Office for the Southern District of Florida, in West Palm Beach, Fla. ### 08-1050
FOR IMMEDIATE RELEASE WEDNESDAY, AUGUST 10, 2005 WWW.USDOJ.GOV
AT (202) 514-2007 TDD (202) 514-1888
FORMER TOP BAYER EXECUTIVES INDICTED IN PRICE-FIXING CONSPIRACY
WASHINGTON, D.C. - Two former top executives of Bayer AG, the German chemicals producer, were indicted today by a federal grand jury for participating in an international price-fixing conspiracy in the rubber chemicals industry, the Department of Justice announced. In separate indictments, filed in U.S. District Court in San Francisco, the grand jury charged Jurgen Ick and Gunter Monn with conspiring with other corporate and individual co-conspirators to suppress competition by fixing the prices of rubber chemicals sold in the United States and elsewhere. Ick, former head of Bayer s Rubber Business Group, was charged with participating in the conspiracy from 1995 to 2001. Monn, former head of marketing of Bayer s Rubber Business Group, was charged with joining the conspiracy in or about January 1997. Both Ick and Monn are German citizens. Rubber chemicals are a group of additives used to improve the elasticity, strength, and durability of rubber products, such as tires, outdoor furniture, hoses, belts, and footwear. Approximately $1 billion of rubber chemicals are sold annually in the United States. Thus far, more than $200 million in criminal fines have resulted from the Antitrust Division s ongoing investigations of price fixing of various rubber-related products. Over the past 18 months the Division has obtained guilty pleas from five companies--Bayer AG, Syndial S.p.A., Crompton Corporation, DuPont Dow Elastomers, Zeon Chemicals--and including today s charges, a total of six executives. Anyone who participates in these type of international conspiracies that defraud Americans millions of dollars faces great risk of being caught and prosecuted, no matter where they are located or where they commit their crime, Thomas O. Barnett, Acting Assistant Attorney General in charge of the Department said s Antitrust Division. The former Bayer executives were charged with carrying out the conspiracy with their co-conspirators by: Participating in meetings among major rubber chemical producers to discuss the prices of rubber chemicals to be sold in the United States and elsewhere; Agreeing, during those discussions and meetings, to increase prices of rubber chemicals to be sold in the United States and elsewhere; Participating in discussions and meetings concerning implementation and adherence to the agreement reached; and Issuing price announcements and price quotations in accordance with the agreements reached.
The cases filed today follow a long line of prosecutions of companies and individuals who participated in the rubber chemicals conspiracy and are the result of the successful cooperation of others involved in the conspiracy, Scott Hammond, the Antitrust Division said s Deputy Assistant Attorney General for Criminal Enforcement. Prior to today s cases, Bayer and Crompton Corporation pleaded guilty to participating in the conspiracy and paid fines of $66 million and $50 million, respectively. In addition, Joseph B. Eisenberg and James J. Conway, both former Crompton executives, and Martin Petersen and Wolfgang Koch, both former Bayer executives, have all pleaded guilty to participating in the same conspiracy. Koch recently was sentenced to serve a four-month prison term and to pay a $50,000 fine. Eisenberg, Conway, and Petersen await sentencing. Ick and Monn were charged with violating Section 1 of the Sherman Act, which carries a maximum penalty for violations occurring prior to June 22, 2003 of three years imprisonment and a $350,000 fine for individuals. The maximum fine may be increased to twice the gain the conspirators derived from the crime or twice the loss suffered by the victims of the crime, if either of those amounts is greater than the statutory maximum fine. The charges announced today stem from an ongoing investigation being conducted by the Antitrust Division Francisco Field Office and the Federal Bureau of Investigation in San Francisco. s San ### 05-414
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MICHAEL L. SCOTT (CSBN 165452) JEANE HAMILTON (CSBN 157834) VICTOR ALI (CSBN 229544) Antitrust Division U.S. Department of Justice 450 Golden Gate Avenue Box 36046, Room 10-0101 San Francisco, CA 94102 Telephone: (415) 436-6660 Attorneys for the United States
Original Filed December 9, 2004
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION UNITED STATES OF AMERICA v. BAYER AG, Defendant. ) ) ) ) ) ) ) ) ) ) No. CR 04-0235 MJJ
PLEA AGREEMENT
PLEA AGREEMENT The United States of America and Bayer AG ("defendant"), a corporation organized and existing under the laws of Germany, 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. The defendant understands its rights: (a) (b) (c) to be represented by an attorney; to be charged by Indictment; as a corporation organized and existing under the laws of 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 it in the United States District Court for the Northern District of California. PLEA AGREEMENT -- BAYER AG -- PAGE 1
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2.
(d) (e)
to plead not guilty to any criminal charge brought against it; to have a trial by jury, at which it 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 it to be found guilty; (f) to confront and cross-examine witnesses against it and to subpoena
witnesses in its defense at trial; (g) (h) to appeal its conviction if it is found guilty at trial; and to appeal the imposition of sentence against it. AGREEMENT TO PLEAD GUILTY AND WAIVE CERTAIN RIGHTS The defendant waives the rights set out in Paragraph 1(b)-(g) 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 it in the United States District Court for the Northern District of California. The defendant also waives the right to appeal the imposition of sentence against it, so long as the sentence imposed is consistent with the recommendation in Paragraph 8 of this Plea Agreement. The defendant agrees to have its 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. The defendant waives any right it may have to have facts that determine its statutory maximum sentence or Guidelines fine range under the U.S.S.G. (including any facts used to determine its offense level, base fine amount, culpability score, or any specific offense characteristic or other enhancement or adjustment under the U.S.S.G., as well as any pecuniary gain or loss resulting from the charged offense) alleged in an indictment and found by a jury beyond a reasonable doubt. The defendant agrees that facts that determine its statutory maximum sentence or Guidelines fine range will be found by the Court at sentencing by a preponderance of the evidence and that the Court may consider any reliable evidence, including hearsay, in making such determinations. Pursuant to Fed. R. Crim. P. 7(b), the 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. PLEA AGREEMENT -- BAYER AG -- PAGE 2
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The Information will charge the defendant with participating in a combination and conspiracy to suppress and eliminate competition by maintaining and increasing the price of certain rubber chemicals sold in the United States and elsewhere, beginning in or about July 1995 and continuing until in or about December 2001, in violation of Section One of the Sherman Act (15 U.S.C. § 1). 3. The 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
beginning in or about July 1995 and continuing until in or about December 2001. During the relevant period, the defendant was a corporation organized and existing under the laws of Germany. The defendant has its principal place of business in Leverkusen, Germany. During the relevant period, the defendant produced and sold certain rubber chemicals in the United States and elsewhere. Rubber chemicals are a group of additives used to improve the elasticity, strength, and durability of rubber products. Rubber chemicals are used primarily in the manufacture of tires, outdoor furniture, hoses, belts, and footwear. (b) During the relevant period, the defendant, through its officers and
employees, participated in a conspiracy among major rubber chemical producers, the primary purpose of which was to suppress and eliminate competition by maintaining and increasing the price of certain rubber chemicals sold in the United States and elsewhere. In furtherance of the conspiracy, the defendant, through its officers and employees, engaged in discussions and attended meetings with representatives of other major rubber chemical producers. During these discussions and meetings, agreements were reached to maintain and increase the price of certain rubber chemicals to be sold in the United States PLEA AGREEMENT -- BAYER AG -- PAGE 3
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and elsewhere. (c) During the relevant period, rubber chemicals sold by one or more of the
conspirator firms, and equipment and supplies necessary to the production and distribution of rubber chemicals, as well as payments for rubber chemicals, traveled in interstate and foreign commerce. The business activities of the defendant and its co-conspirators in connection with the production and sale of rubber chemicals affected by this conspiracy were within the flow of, and substantially affected, interstate and foreign trade and commerce. (d) Rubber chemicals affected by this conspiracy were sold by one or more of
the conspirators to customers in this District. POSSIBLE MAXIMUM SENTENCE 5. The defendant understands that the maximum penalty which may be imposed
against it upon conviction for a violation of Section One of the Sherman Antitrust Act is a fine in an amount equal to the greatest of: (a) (b) $10 million (15 U.S.C. § 1); twice the gross pecuniary gain the conspirators derived from the crime
(18 U.S.C. § 3571(c) and (d)); or (c) twice the gross pecuniary loss caused to the victims of the crime by the
conspirators (18 U.S.C. § 3571(c) and (d)). 6. In addition, the defendant understands that: (a) pursuant to § 8B1.1 of the United States Sentencing Guidelines
("U.S.S.G."), the Court may order it to pay restitution to the victims of the offense; (b) pursuant to 18 U.S.C. § 3013(a)(2)(B) and U.S.S.G. § 8E1.1, the Court is
required to order the defendant to pay a $400 special assessment upon conviction for the charged crime; and (c) pursuant to 18 U.S.C. § 3561(c)(1), the Court may impose a term of
probation of at least one year, but not more than five years.
PLEA AGREEMENT -- BAYER AG -- PAGE 4
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8. 7.
SENTENCING GUIDELINES 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 the defendant provides to the United States pursuant to this Plea Agreement will not be used to increase the volume of affected commerce attributable to the defendant or in determining the defendant’s applicable sentencing guidelines range, except to the extent provided in U.S.S.G. § 1B1.8(b). SENTENCING AGREEMENT Pursuant to Fed. R. Crim. P. 11(c)(1)(C), the United States and the defendant
agree that the appropriate disposition of this case is, and agree to recommend jointly that the Court impose a sentence requiring the defendant to pay to the United States a criminal fine of $66 million, pursuant to 18 U.S.C. § 3571(d), payable in full before the fifteenth (15th) day after the date of judgment (“the recommended sentence”). (a) The defendant understands that the Court will order it to pay a $400
special assessment, pursuant to 18 U.S.C. § 3013(a)(2)(B) and U.S.S.G. § 8E1.1, in addition to any fine imposed. (b) Neither party will recommend a term of probation, but the defendant
understands that the Court is free to impose a term of probation. (c) Subject to the ongoing, full, and truthful cooperation of the defendant
described in Paragraph 12 of this Plea Agreement, and before sentencing in the case, the United States will fully advise the Court of the fact, manner, and extent of the defendant’s cooperation and its commitment to prospective cooperation with the United States’ investigation and prosecutions, all material facts relating to the defendant’s involvement in the charged offense, and all other relevant conduct. The United States and the defendant jointly submit that this Plea Agreement, together with the record that will be created by the United States and the defendant at the plea and sentencing hearings, will provide sufficient information concerning the defendant, the crime charged in this case, and the defendant’s role in the crime to enable the meaningful exercise of PLEA AGREEMENT -- BAYER AG -- PAGE 5
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sentencing authority by the Court under 18 U.S.C. § 3553. The United States and defendant agree to request jointly that the Court accept the defendant’s guilty plea and impose sentence on an expedited schedule as early as the date of arraignment, based upon the record provided by the defendant and the United States, under the provisions of Fed. R. Crim. P. 32(c)(1)(A)(ii), U.S.S.G. § 6A1.1, and Rule 18(b) of the Local Rules. The Court’s denial of the request to impose sentence on an expedited schedule will not void this Plea Agreement. 9. The United States and the defendant agree that the applicable sentencing
guidelines fine range exceeds the fine contained in the recommended sentence set out in Paragraph 8 above. Subject to the full and continuing cooperation of the defendant, as described in Paragraph 12 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. § 8C4.1, for a downward departure from the guidelines fine range and will request that the Court impose the recommended sentence set out in Paragraph 8 of this Plea Agreement because of the defendant’s substantial assistance in the government’s investigation and prosecutions of violations of federal criminal law in the rubber chemicals industry and in another industry. 10. The United States and the defendant understand that the Court retains complete
discretion to accept or reject the recommended sentence provided for in Paragraph 8 of this Plea Agreement. (a) If the Court does not accept the recommended sentence, the United States
and the defendant agree that this Plea Agreement, except for Paragraph 10(b) below, shall be rendered void. Neither party may withdraw from this Plea Agreement, however, based on the imposition of a term of probation. (b) If the Court does not accept the recommended sentence, the defendant will
be free to withdraw its guilty plea (Fed. R. Crim. P. 11(c)(5) and (d)). If the defendant withdraws its plea of guilty, this Plea Agreement, the guilty plea, and any statement made in 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 PLEA AGREEMENT -- BAYER AG -- PAGE 6
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government shall not be admissible against the defendant in any criminal or civil proceeding, except as otherwise provided in Fed. R. Evid. 410. In addition, the defendant agrees that, if it withdraws its guilty plea pursuant to this subparagraph of the Plea Agreement, the statute of limitations period for any offense referred to in Paragraph 14 of this Plea Agreement will be tolled for the period between the date of the signing of the Plea Agreement and the date the defendant withdrew its guilty plea or for a period of sixty (60) days after the date of the signing of the Plea Agreement, whichever period is greater. 11. In light of the private civil cases filed, which potentially provide for a recovery of
a multiple of actual damages, the United States agrees that it will not seek a restitution order for the offense charged in the Information. DEFENDANT’S COOPERATION 12. The defendant and any of its subsidiaries engaged in the sale or production of
rubber chemicals (collectively, “related entities”) 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 rubber chemicals, 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 the defendant and its related entities shall include, but not be limited to: (a) producing to the United States all non-privileged documents, information,
and other materials, wherever located, in the possession, custody, or control of the defendant or its related entities, requested by the United States in connection with any Federal Proceeding; and (b) using its best efforts to secure the ongoing, full, and truthful
cooperation, as defined in Paragraph 13 of this Plea Agreement, of the current and former directors, officers, and employees of the defendant and its related entities as may be requested by the United States, but excluding Jurgen Ick, Martin Petersen, PLEA AGREEMENT -- BAYER AG -- PAGE 7
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Gunter Monn, Wolfgang Koch, and Volker Holitsch, and, including making these persons available in the United States and at other mutually agreed-upon locations, at the defendant’s expense, for interviews and the provision of testimony in grand jury, trial, and other judicial proceedings in connection with any Federal Proceeding. 13. The ongoing, full, and truthful cooperation of each person described in
Paragraph 12(b) above will be subject to the procedures and protections of this paragraph, and 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 materials, wherever located, requested by attorneys and agents of the United States; (b) making himself or herself 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 of justice (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 or she may have that is related to any Federal Proceeding; (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 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 (18 U.S.C. § 1623), contempt (18 U.S.C. §§ 401-402), and obstruction of justice (18 U.S.C. § 1503); and PLEA AGREEMENT -- BAYER AG -- PAGE 8
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(f)
agreeing that, if the agreement not to prosecute him or her in this
Plea Agreement is rendered void under Paragraph 15(c), the statute of limitations period for any Relevant Offense as defined in Paragraph 15(a) will be tolled as to him or her for the period between the date of the signing of this Plea Agreement and six (6) months after the date that the United States gave notice of its intent to void its obligations to that person under the Plea Agreement. GOVERNMENT’S AGREEMENT Upon acceptance of the guilty plea called for by this Plea Agreement and
the imposition of the recommended sentence, and subject to the cooperation requirements of Paragraph 12 of this Plea Agreement, the United States agrees that it will not bring further criminal charges against the defendant or any of its related entities 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 rubber chemicals. 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 to the following: (a) Upon the Court’s acceptance of the guilty plea called for by this
Plea Agreement and the imposition of the recommended sentence and subject to the exceptions noted in Paragraph 15(c), the United States will not bring criminal charges against any current or former director, officer, or employee of the defendant or any of its related entities for any act or offense committed before the date of this Plea Agreement and while that person was acting as a director, officer, or employee of the defendant or any of its related entities that was undertaken in furtherance of an antitrust conspiracy involving the manufacture or sale of rubber chemicals (“Relevant Offense”), except that the protections granted in this paragraph shall not apply to Jurgen Ick, Martin Petersen, Gunter Monn, Wolfgang Koch, and Volker Holitsch; (b) Should the United States determine that any current or former
PLEA AGREEMENT -- BAYER AG -- PAGE 9
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director, officer, or employee of the defendant or any of its related entities may have information relevant to any Federal Proceeding, the United States may request that person’s cooperation under the terms of this Plea Agreement by written request delivered to counsel for the individual (with a copy to the undersigned counsel for the defendant) or, if the individual is not known by the United States to be represented, to the undersigned counsel for the defendant; (c) If any person requested to provide cooperation under Paragraph
15(b) fails to comply with his or her obligations under Paragraph 13, then the terms of this Plea Agreement as they pertain to that person, and the agreement not to prosecute that person granted in this Plea Agreement, shall be rendered void; (d) Except as provided in Paragraph 15(e), information provided by a
person described in Paragraph 15(b) to the United States under the terms of this Plea Agreement pertaining to any Relevant Offense, or any information directly or indirectly derived from that information, may not be used against that person in a criminal case, except in a prosecution for perjury (18 U.S.C. § 1621), making a false statement or declaration (18 U.S.C. §§ 1001, 1623), or obstruction of justice (18 U.S.C. § 1503); (e) If any person who provides information to the United States under
this Plea Agreement fails to comply fully with his or her obligations under Paragraph 13 of this Plea Agreement, the agreement in Paragraph 15(d) not to use that information or any information directly or indirectly derived from it against that person in a criminal case shall be rendered void; (f) 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; and (g) Documents provided under Paragraphs 12(a) and 13(a) shall be
deemed responsive to outstanding grand jury subpoenas issued to the defendant or any of its related entities. PLEA AGREEMENT -- BAYER AG -- PAGE 10
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16.
The United States agrees that when any person 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 such person to arrest, detention, or service of process, or to prevent such person from departing the United States. This paragraph does not apply to an individual'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 of justice (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. 17. The defendant understands that it may be subject to administrative action
by federal or state agencies other than the United Stated 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 the defendant and its related entities as a matter for that agency to consider before determining what administrative action, if any, to take. REPRESENTATION BY COUNSEL 18. The defendant has been represented by counsel and is fully satisfied that its
attorneys have provided competent legal representation. The defendant has thoroughly reviewed this Plea Agreement and acknowledges that counsel has advised it of the nature of the charge, any possible defenses to the charge, and the nature and range of possible sentences. VOLUNTARY PLEA 19. The 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 -- BAYER AG -- PAGE 11
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Plea Agreement and the Bayer Cooperation Agreement, filed separately with the Court. The United States has made no promises or representations to the defendant as to whether the Court will accept or reject the recommendations contained within this Plea Agreement. VIOLATION OF PLEA AGREEMENT 20. The defendant agrees that, should the United States determine in good
faith, during the period that any Federal Proceeding is pending, that the defendant or any of its related entities have failed to provide full and truthful cooperation, as described in Paragraph 12 of this Plea Agreement, or has otherwise violated any provision of this Plea Agreement, the United States will notify counsel for the defendant in writing by personal or overnight delivery or facsimile transmission and may also notify counsel by telephone of its intention to void any of its obligations under this Plea Agreement (except its obligations under this paragraph), and the defendant and its related entities 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. The defendant and its related entities 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. The defendant and its related entities agree that, in the event that the United States is released from its obligations under this Plea Agreement and brings criminal charges against the defendant and its related entities for any offense referred to in Paragraph 14 of this Plea Agreement, 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. The defendant understands and agrees that in any further prosecution of it
or its related entities resulting from the release of the United States from its obligations under this Plea Agreement, because of the defendant’s or its related entities’ violation of the Plea Agreement, any documents, statements, information, testimony, or evidence provided by it, its related entities, or current or former directors, officers, or employees of PLEA AGREEMENT -- BAYER AG -- PAGE 12
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it or its related entities to attorneys or agents of the United States, federal grand juries, or courts, and any leads derived therefrom, may be used against it or its related entities in any such further prosecution. In addition, the defendant unconditionally waives its right to challenge the use of such evidence in any such further prosecution, notwithstanding the protections of Fed. R. Evid. 410. ENTIRETY OF AGREEMENT 22. This Plea Agreement and the Bayer Cooperation Agreement, filed
separately with the Court, constitute the entire agreement between the United States and the 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 the defendant. 23. The undersigned is authorized to enter into this Plea Agreement on behalf
of the defendant as evidenced by the Resolution of the Board of Directors of the defendant attached to, and incorporated by reference, in this Plea Agreement. 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. /// /// /// /// /// /// /// /// /// /// /// PLEA AGREEMENT -- BAYER AG -- PAGE 13
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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: 7/8/04 Respectfully submitted, BAYER AG U.S. DEPARTMENT OF JUSTICE ANTITRUST DIVISION BY:_________/s/________________ __ Michael L. Scott Jeane Hamilton Victor Ali Attorneys 450 Golden Gate Avenue Box 36046, Room 10-0101 San Francisco, CA 94102 (415) 436-6660
BY:_______/s/_________________ Dr. Roland Hartwig General Counsel Bayer AG Corporate Center, Law & Patents D-51368 Leverkusen, Germany
COUNSEL FOR BAYER AG
BY:___________/s/____________________ Phillip A. Proger, Esq. Brian K. Grube, Esq. Ryan C. Thomas, Esq. Jones Day 51 Louisiana Ave., N.W. Washington, DC 20001-2113
PLEA AGREEMENT -- BAYER AG -- PAGE 14
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MICHAEL L. SCOTT (CSBN 165452) JEANE HAMILTON (CSBN 157834) VICTOR ALI (CSBN 229544) Antitrust Division U.S. Department of Justice 450 Golden Gate Avenue Box 36046, Room 10-0101 San Francisco, CA 94102 Telephone: (415) 436-6660 Attorneys for the United States
Original Filed July 14, 2004
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA
) ) v. ) ) BAYER AG, ) ) Defendant. ) ) ____________________________________)
CR 04-0235 PJH INFORMATION VIOLATION: Title 15, United States Code, Section 1 (Price Fixing) San Francisco Venue
The United States of America, acting through its attorneys, charges: I. DESCRIPTION OF THE OFFENSE 1. 2. BAYER AG is made a defendant on the charge stated below. Beginning in or about July 1995 and continuing until in or about December 2001,
defendant and co-conspirators participated in a combination and conspiracy to suppress and eliminate competition by maintaining and increasing the price of certain rubber chemicals sold in the United States and elsewhere. The combination and conspiracy engaged in by the defendant and co-conspirators was in unreasonable restraint of interstate and foreign trade and commerce in violation of Section 1 of the Sherman Act (15 U.S.C. § 1). 3. The charged combination and conspiracy consisted of a continuing agreement,
INFORMATION -- BAYER AG -- PAGE 1
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understanding, and concert of action among the defendant and co-conspirators, the substantial term of which was to suppress and eliminate competition by maintaining and increasing the price of certain rubber chemicals in the United States and elsewhere. 4. For the purpose of forming and carrying out the charged combination and
conspiracy, the defendant and co-conspirators did those things that they combined and conspired to do, including, among other things: (a) participating in conversations and meetings to discuss prices of certain rubber chemicals to be sold in the United States and elsewhere; (b) agreeing, during those conversations and meetings, to raise and maintain prices of certain rubber chemicals to be sold in the United States and elsewhere; (c) participating in conversations and attending meetings concerning implementation of and adherence to the agreements reached; (d) issuing price announcements and price quotations in accordance with the agreements reached; and (e) exchanging information on the sale of certain rubber chemicals in the United States and elsewhere. II. DEFENDANT AND CO-CONSPIRATORS 5. The defendant is an entity organized and existing under the laws of Germany,
with its principal place of business in Leverkusen, Germany. During the period covered by this Information, the defendant engaged in the business of producing and selling certain rubber chemicals in the United States and elsewhere. 6. Various corporations and individuals, not made defendants in this Information,
participated as co-conspirators in the offense charged herein and performed acts and made statements in furtherance of it. 7. Whenever in this Information reference is made to any act, deed, or transaction of
INFORMATION -- BAYER AG -- PAGE 2
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any corporation, the allegation means that the corporation engaged in the act, deed, or transaction by or through its officers, directors, employees, agents, or other representatives while they were actively engaged in the management, direction, control, or transaction of its business or affairs. III. TRADE AND COMMERCE 8. Rubber chemicals are a group of additives used to improve the elasticity, strength,
and durability of rubber products. Rubber chemicals are used primarily in the manufacture of tires, outdoor furniture, hoses, belts, and footwear. 9. During the period covered by this Information, the defendant and co-conspirators
manufactured, sold, and distributed rubber chemicals in a continuous and uninterrupted flow of interstate and foreign trade and commerce to customers located in states or countries other than the states or countries in which the defendant and co-conspirators produced rubber chemicals. 10. The business activities of the defendant and co-conspirators that are the subject of
this Information were within the flow of, and substantially affected, interstate and foreign trade and commerce. IV. JURISDICTION AND VENUE 11. The combination and conspiracy charged in this Information was carried out, in
part, in the Northern District of California within the five years preceding the filing of this Information. // // // // // INFORMATION -- BAYER AG -- PAGE 3
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// ALL IN VIOLATION OF TITLE 15, UNITED STATES CODE, SECTION 1. Dated: 7/13/04
___/s/___________________________ R. Hewitt Pate Assistant Attorney General
______/s/________________________ Phillip H. Warren Chief, San Francisco Office
____/s/__________________________ James M. Griffin Deputy Assistant Attorney General
______/s/________________________ Marc Siegel Assistant Chief, San Francisco Office
____/s/__________________________ Scott D. Hammond Director of Criminal Enforcement United States Department of Justice Antitrust Division
______/s/________________________ Michael L. Scott Jeane Hamilton Victor Ali Attorneys U.S. Department of Justice Antitrust Division 450 Golden Gate Avenue Box 36046, Room 10-0101 San Francisco, CA 94102 (415) 436-6660
_____/s/_________________________ Kevin V. Ryan United States Attorney Northern District of California
INFORMATION -- BAYER AG -- PAGE 4
