Justia International Trade Opinion Summaries

Articles Posted in International Trade
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Plaintiff brought this putative class action against more than twenty banks and brokers, alleging a conspiracy to manipulate two benchmark rates known as Yen-LIBOR and Euroyen TIBOR. Plaintiff brought claims under the Commodity Exchange Act (“CEA”), and the Sherman Antitrust Act, and sought leave to assert claims under the Racketeer Influenced and Corrupt Organizations Act (“RICO”). The district court dismissed the CEA and antitrust claims and denied leave to add the RICO claims. Plaintiff appealed, arguing that the district court erred by holding that the CEA claims were impermissibly extraterritorial, that he lacked antitrust standing to assert a Sherman Act claim, and that he failed to allege proximate causation for his proposed RICO claims.   The Second Circuit affirmed. The court explained that the conduct—i.e., that the bank defendants presented fraudulent submissions to an organization based in London that set a benchmark rate related to a foreign currency—occurred almost entirely overseas. Indeed, Plaintiff fails to allege any significant acts that took place in the United States. Plaintiff’s CEA claims are based predominantly on foreign conduct and are thus impermissibly extraterritorial. Further, the court wrote that the district court also correctly concluded that Plaintiff lacked antitrust standing because he would not be an efficient enforcer of the antitrust laws. Lastly, the court agreed that Plaintiff failed to allege proximate causation for his RICO claims. View "Laydon v. Coöperatieve Rabobank U.A., et al." on Justia Law

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In the tenth administrative review of the antidumping order on steel nails from China, the U.S. Department of Commerce found that Pioneer did not cooperate to the best of its ability with Commerce’s request for information, Commerce applied adverse facts available (AFA) and assigned an antidumping margin of 118.04 percent to Pioneer. Following the 2013 third administrative review, Commerce had announced that “all other future respondents for this case report all FOPs [factors of production] data on a CONNUM-specific [control number] basis using all product characteristics in subsequent reviews, as documentation and data collection requirements should now be fully understood by [the particular respondent] and all other respondents.” CONNUM is Commerce jargon for a unique product.The Trade Court and the Federal Circuit affirmed. Commerce’s 2013 pronouncement reflects a statement of policy, not the agency’s explicit invocation of general legislative authority; the CONNUM-specific rule is not subject to notice-and-comment rulemaking under the APA. The use of the CONNUM rule is not inconsistent with 19 U.S.C. 1677b, concerning the calculation of the normal value of merchandise. Commerce determined that CONNUM-specific data is essential for the accurate calculation of costs due to the variations in the physical characteristics of the merchandise. Pioneer did not provide required answers, so the application of AFA was supported by substantial evidence. View "Xi’an Metals & Minerals Import & Export Co. Ltd. v. United States" on Justia Law

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In the 1990s, Aldossari’s company, Trans Gulf, entered into an agreement in Saudi Arabia with three other businesses to establish and operate an oil refinery in Saint Lucia, a Caribbean island nation. Crude oil was to be sourced from the Saudi government or its national oil company, Saudi Aramco. The project went forward, but, Aldossari alleged, the owners of the three contract counterparties – one of whom became the Crown Prince of Saudi Arabia –refused to pay Trans Gulf its share of the proceeds. Two decades later, the soon-to-be Crown Prince promised to pay Aldossari but never did. Aldossari, transferred his rights to his minor son, a U.S. citizen.The federal district court dismissed Aldossari’s subsequent tort and contract claims. The Third Circuit affirmed, holding that dismissal of the claims against a deceased defendant was proper because Aldossari failed to allege any basis for exercising subject-matter jurisdiction over those claims. As for the surviving defendants, the lack of any meaningful ties between those defendants and the United States in Aldossari’s claims defeats his effort to sue them in the U.S. The Foreign Sovereign Immunities Act precludes subject-matter jurisdiction over the claims against Saudi Arabia and Saudi Aramco. The case was remanded with directions to dismiss without prejudice since none of the dispositive rulings reach the merits. View "Aldossari v. Ripp" on Justia Law

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Domestic manufacturers or distributors who imported steel products subject to an ad valorem “national security” tariffs, 19 U.S.C. 1862, sought exclusions from the tariff. Domestic steel producers objected to those requests, asserting that “they could satisfactorily produce all of, or sufficient substitutes for, the material that was the subject of the exclusion requests.” The Department of Commerce denied the exclusion requests. The importers paid the duties and imported the steel products, then filed lawsuits, contending that Commerce failed to consider relevant evidence, failed to give adequate explanations, and in some instances considered legally irrelevant factors.Domestic producers, who had objected to the tariff exclusion requests before Commerce, moved to intervene as party defendants in the importers’ lawsuits. The Federal Circuit affirmed the Trade Court’s denial of intervention. Each of the proposed intervenors’ requested relief is largely identical to the government’s prayer for relief, so they have established “piggyback” standing but they did not identify a legally protectable interest to qualify as intervenors under Rule 24(a)(2). The court rejected arguments that participation in adversarial administrative proceedings bestows a Rule 24(a)(2) interest in the result, that actions to undo tariffs that specifically protect domestic producers give rise to economic interests, and that judgments removing tariff protection may practically impair the interests of direct beneficiaries of those tariffs. View "California Steel Industries, Inc. v. United States" on Justia Law

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The importers sought refunds of estimated duties they deposited with U.S. Customs and Border Protection for tariffs that the U.S. Trade Representative retroactively rescinded after granting exclusion requests submitted by other importers that covered the same category of products. The Trade Court dismissed the complaints for lack of jurisdiction.The Federal Circuit affirmed. The jurisdictional provision cited by the importers, 28 U.S.C. 1581(i), may not be invoked when jurisdiction under another subsection of 1581 could have been available and would have provided an adequate remedy if timely invoked. Jurisdiction would have been available under section 1581(a) had the importers timely protested Customs’ classification decisions. Failure to invoke an available remedy within the timeframe prescribed does not render the remedy manifestly inadequate. That Customs’ classification decisions became erroneous after USTR granted retroactive exclusions is irrelevant. The obligation to protest a Customs classification error does not turn on whether it was erroneous ab initio or became erroneous because of retroactive administrative action. It turns on whether Customs’ classifications of the importers’ entries were protestable “decisions” under 19 U.S.C. 1514. View "ARP Materials, Inc. v. United States" on Justia Law

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INVT alleged that the importation and sale of personal devices, such as smartphones, smartwatches, and tablets, infringed INVT's patents. An ALJ determined that the accused devices did not infringe claims 3 and 4 of the 590 patent and claims 1 and 2 of the 439 patent and that INVT had failed to meet the technical prong of the domestic industry requirement as to those claims.The International Trade Commission affirmed the finding of no 19 U.S.C. 1337 (section 337) violation. The Federal Circuit affirmed the determination with respect to the 439 patent because INVT failed to show infringement and the existence of a domestic industry. The 439 patent relates to wireless communication systems, specifically an improvement to adaptive modulation and coding, which is a technique used to transmit signals in an orthogonal frequency division multiplexing system. The asserted 439 claims are drawn to “capability” but for infringement purposes, a computer-implemented claim drawn to a functional capability requires some showing that the accused computer-implemented device is programmed or otherwise configured, without modification, to perform the claimed function when in operation. INVT failed to establish that the accused devices, when put into operation, will ever perform the particular functions recited in the asserted claims. The determination with respect to the 590 patent is moot based on the patent’s March 2022 expiration. View "INVT SPE LLC v. International Trade Commission" on Justia Law

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Commerce initiated a second administrative review of antidumping duties for certain passenger-vehicle and light-truck tires from China and selected two mandatory respondents, Junhon and Haohua as “the top two publicly identifiable exporters/producers of passenger vehicle and light truck tires sold to the United States.” Haohua withdrew. Commerce investigated only Junhong. Commerce issued its Preliminary Results and applied an individual dumping margin of 73.63%, which was then designated as the rate for all of the exporters and producers. In its Final Results. Commerce continued to use only Junhong, for its investigation but reduced the weighted-average dumping margin to 64.57%. The Trade Court held that Commerce’s use of a sole mandatory respondent was a reasonable exercise of agency discretion and sustained Commerce’s decision to exclude Thai import data from India, Indonesia, and South Korea when determining surrogate values for Junhong. The Federal Circuit vacated. Commerce erred in restricting its examination to only one exporter/producer. The statute calls for all respondents to be individually investigated unless the large number makes separate reviews impracticable. This statutory “exception” authorizes the review of a smaller number of exporters or producers than have requested review. Commerce has not demonstrated that it was reasonable to review a single exporter or producer when multiple have requested review and to calculate the all-others rate based on only one respondent. View "Y.C. Rubber Co.(North America), LLC v. United States" on Justia Law

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NBA Properties owns the trademarks of the NBA and NBA teams. In 2020, a Properties investigator accessed HANWJH’s online Amazon store and purchased an item, designating an address in Illinois as the delivery destination. The product was delivered to the Illinois address. Properties sued, alleging trademark infringement and counterfeiting, 15 U.S.C. 1114 and false designation of origin, section 1125(a). Properties obtained a TRO and a temporary asset restraint on HANWJH’s bank account, then moved for default; despite having been served, HANWJH had not answered or otherwise defended the suit. HANWJH moved to dismiss, arguing that the court lacked personal jurisdiction over it because it did not expressly aim any conduct at Illinois. HANWJH maintained that it had never sold any other product to any consumer in Illinois nor had it any “offices, employees,” “real or personal property,” “bank accounts,” or any other commercial dealings with Illinois.The Seventh Circuit affirmed the denial of the motion to dismiss and the entry of judgment in favor of Properties. HANWJH shipped a product to Illinois after it structured its sales activity in such a manner as to invite orders from Illinois and developed the capacity to fill them. HANWJH’s listing of its product on Amazon.com and its sale of the product to counsel are related sufficiently to the harm of likelihood of confusion. Illinois has an interest in protecting its consumers from purchasing fraudulent merchandise. HANWJH alleges no unusual burden in defending the suit in Illinois. View "NBA Properties, Inc. v. HANWJH" on Justia Law

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Meyer imports cookware. Each cookware item manufactured in Thailand began as a steel disc imported from China. In Thailand, the manufacturer transforms the discs into finished cookware and sells finished cookware to distributors in Macau and Hong Kong. The manufacturers, distributors, and Meyer have a common parent/shareholder.Meyer requested duty-free treatment for the cookware produced in Thailand, based on Thailand’s status as a beneficiary developing country under the Generalized System of Preferences. Meyer also asked Customs to value its cookware based on the first-sale price that its affiliated distributors paid to the manufacturers. Customs denied duty-free treatment and assessed duties based on the second-sale price that Meyer paid to its distributors. The Court of International Trade ruled that raw materials from nonbeneficiary developing countries must undergo a “double substantial transformation” in the beneficiary developing country to count toward duty-free treatment and the manufacturer did not substantially transform the input a second time by converting the shell into a finished pot; Meyer failed to show that an unfinished shell is a “distinct article of commerce.”The Federal Circuit affirmed in part. The Trade Court properly found only one substantial transformation but erred in requiring Meyer to prove that the first sales were at arm’s length and also unaffected by China’s status as a non-market economy. The court remanded for reconsideration of whether Meyer may rely on its first-sale prices. View "Meyer Corp., U.S. v. United States" on Justia Law

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Acting under the Export Control Reform Act of 2018 (ECRA) the Department of Commerce has maintained a so-called Entity List to restrict designated foreign parties from receiving United States exports.   Plaintiff, Changji Esquel Textile Co, operates a spinning mill in Xinjiang. The United States has determined that China abuses the human rights of Uyghurs and other religious or ethnic minorities in Xinjiang, including imprisonment and forced labor. Changji and its parent company filed a lawsuit alleging that the Department, in adding Changji to the Entity List, violated ECRA and its implementing regulations, the APA, and the Due Process Clause. They moved for a preliminary injunction on the theory that the alleged ECRA and regulatory violations were ultra vires. The district court denied the motion on the ground that Plaintiffs are not likely to succeed on this claim.   The DC Circuit affirmed. The court explained that to prevail on an ultra vires claim, Plaintiff must establish three things: “(i) the statutory preclusion of review is implied rather than express; (ii) there is no alternative procedure for review of the statutory claim; and (iii) the agency plainly acts in excess of its delegated powers and contrary to a specific prohibition in the statute that is clear and mandatory.   The court explained that the canons invoked by Plaintiffs can resolve statutory ambiguity in close cases, but they do not allow the court to discern any clear and mandatory prohibition on adding entities to the List for human-rights abuses, particularly given the breadth of section 4813(a)(16) and the deference owed to the Executive Branch in matters of foreign affairs. View "Changji Esquel Textile Co. Ltd. v. Gina Raimondo" on Justia Law