Canada v. UCAR Inc.
T-477-99
McGillis J.
18/3/99
9 pp.
UCAR pleaded guilty to, convicted of, indictable offence contrary to Competition Act, s. 46(1)-Very experienced counsel jointly recommending to Court $11 million appropriate sentence-UCAR Canada subsidiary of UCAR International Inc., world's largest manufacturer of graphite, carbon electrodes for use in steel, aluminum production-UCAR International having manufacturing plants on five continents, selling products to steel, metal, ferronickel and thermal phosphorous industries in more than 70 countries-Employing approximately 5,500 people worldwide; sales in 1998 of US$947 million-UCAR Canada's sales of graphite electrodes during five-year period of conspiracy approximately C$214 million-In 1992, representatives of UCAR International, SGL (major competitor), other electrode manufacturers entering into anti-competitive conspiracy, combination agreement resulting in lessening of competition substantially in Canadian market, elsewhere-Representatives of UCAR International, SGL meeting between 1992, 1997 with representatives of other producers, suppliers of graphite electrodes to implement unlawful agreement-Principal term of agreement to fix, maintain prices, coordinate price increases for sale of graphite electrodes in Canada, elsewhere including agreement to charge prices of graphite electrodes at certain levels, increase, maintain prices in Canada; eliminate discounts; allocate among themselves volume of graphite electrodes sold by each corporate conspirator; divide markets among themselves; restrict graphite electrode production capacity, non-conspirator companies' access to certain electrode manufacturing technology; employ methods to conceal agreement, including use of code names; exchange sales, customer information for purpose of monitoring, enforcing agreement-In 1997 UCAR International forming independent committee of Board of Directors to examine conduct to determine whether engaged in inappropriate or illegal activities in relation to marketing of graphite electrodes-After extensive worldwide investigation, UCAR International's two most senior officers either resigned or removed from positions-Within weeks UCAR Canada approaching Competition Bureau to begin discussions leading to current resolution of matter-UCAR Canada, large, sophisticated corporation controlling significant percentage of Canadian market for high-power graphite electrodes voluntarily, deliberately participating in sophisticated, lengthy international conspiracy with other competitors to prevent, lessen competition unduly throughout world in graphite electrode market-Mitigating factors: UCAR Canada voluntarily revealing involvement in anti-competitive conspiracy; agreeing to cooperate with Competition Bureau in continuing inquiry into conduct of other alleged co-conspirators-UCAR Canada acknowledging wrongdoing, accepting responsibility for actions by pleading guilty at early stage in proceedings, thereby avoiding protracted, complex, expensive trial-Offering to make restitution to Canadian customers in amount of $19 million-To date making restitution in amount of $4 million-After considering facts underlying commission of offence, factors to be considered in imposing sentence, including general, specific deterrence, size, influence of accused corporation, role in conspiracy, duration, scope of conspiracy, deliberate nature of criminal conduct, mitigating circumstances, fine jointly proposed by counsel appropriate, reasonable penalty-Competition Act, R.S.C., 1985, c. C-34, s. 46(1).