On your mark, get set, go!
10 July 2013
Under a recently launched pilot program in Section 337 investigations, the ITC will direct the judge to issue an initial determination on certain discrete dispositive issues in a Section 337 investigation within 100 days after limited discovery and an evidentiary hearing on the issue.
The first such initial determination was issued last Friday, July 5, 2013. There, the judge found the complainant did not satisfy the domestic industry requirement.
On July 5th, 2013, an ITC Administrative Law Judge (“ALJ”) ruled in Certain Products Having Laminated Packaging, Laminated Packaging, and Components Thereof, Investigation No. 337-TA-874, that the complainant failed to meet the domestic industry requirement. This initial determination (“ID”) is the first decision under the newly launched pilot program. If affirmed by the ITC, it will stop the investigation, which was started just a few months ago.
The ITC launched the pilot program to test whether earlier rulings on certain dispositive issues could limit unnecessary litigation, saving time and costs for all parties involved. Under the pilot program, the ITC directs the ALJ to issue an early decision on potentially dispositive issues within 100 days of the institution of certain investigations. Thus, the complainant must be prepared from day one to sustain its burden to show that it is entitled to the substantial remedies that the ITC can grant.
One such dispositive issue is the existence of a domestic industry. If an industry does not exist in the United States or is not in the process of being established, the ITC will lack jurisdiction and the investigation cannot proceed. Typically, the initial ruling on domestic industry has come late in an investigation, often after several months of litigation and an evidentiary hearing, when the ALJ issues his ID on whether there is a violation of Section 337. If, however, an investigation is designated for the pilot program, the ITC will set out specific timeframes for expedited activities in its notice of institution. The timeframes are illustrated as follows:
- Step 1: The ITC will direct the presiding ALJ to expedite factfinding in the investigation on the domestic industry requirement (including an evidentiary hearing) and issue an early ID on this issue within 100 days of institution, which may be extended for good cause shown.
- If the ALJ issues an early ID finding that there is no domestic industry, all other issues in the investigation are stayed pending review of the expedited ID by the ITC.
- Step 2: After the issuance of the early ID, the dissatisfied party may petition the ITC for review of the ID within five calendar days after the ID has been served. Replies are due three business days after any petition for review has been served.
- Step 3: The ITC will determine whether to review the early ID within 30 days after the ALJ issues it. If the ITC does not review the ID, it will become the ITC’s final determination; if the ITC decides to review the ID, a final decision will normally be issued within 30 days.
Therefore, under the pilot program, a final determination on a dispositive issue will generally be issued within approximately 160 days.
The ITC may make appropriate adjustments to the program over time. The results of the pilot program will be evaluated to determine whether this procedure should be implemented on a permanent basis.
For further information concerning the impact and implication of the ITC pilot program, please contact any of the individuals listed on the right.