Justia International Trade Opinion Summaries

The U.S. Department of Commerce reconducted a fourth administrative review of the antidumping duty order on certain frozen warm-water shrimp from Vietnam. The Trade Court upheld Commerce’s decision to refuse Grobest’s request to terminate the individual examination of Grobest and Commerce’s decision to assign a 25.76% antidumping duty rate using adverse facts available after Grobest failed to cooperate with the examination. The Federal Circuit affirmed. Given Grobest’s failure to cooperate in the examination and the lack of any specific challenge to Commerce’s corroboration analysis, the application of the Vietnam-wide rate was amply supported by the record. Commerce was reasonable in treating Grobest as a mandatory respondent with no right to escape review once it was selected for individual examination pursuant to the Trade Court’s Final Judgment. Nor was Commerce required by any statutory or regulatory authority to rescind the court-ordered individual examination simply because Grobest no longer wished to proceed, regardless of the timing of its rescission request. View "Viet I-Mei Frozen Foods Co. v. United States" on Justia Law

Magnesium metal is produced using the “Pidgeon” process, which involves stainless steel reaction vessels called retorts. After approximately 60 days of use in multiple cycles of manufacturing, retorts become unsuitable for the production of magnesium and are recycled; the recycled steel is used to produce new retorts. In 1995, the Commerce Department entered an antidumping order on magnesium metal from China. In 2010, Commerce provided notice of an opportunity to seek review of the order. TMI, a foreign exporter of magnesium produced in China, and USM, a domestic producer, requested review of TMI’s sales. Commerce solicited information, including TMI’s business records, surrogate value and country selection, and freight rates, then constructed a normal value for magnesium by creating surrogate values for the raw materials used in the manufacturing process. It did not include a surrogate value for steel retorts, treating retorts as indirect materials and accounting for their cost as overhead. Commerce explained that “retorts are not physically incorporated into the final product” and “are more similar to a kiln or furnace.” Retorts are reusable and “are not replaced so regularly as to represent a direct factor rather than overhead.” Following remand, Commerce affirmed its finding that retorts are properly treated as factory overhead. The Trade Court affirmed. The Federal Circuit affirmed. The relative cost of retorts provides no reason to reject Commerce’s findings as unsupported by substantial evidence. View "US Magnesium, LLC v. United States" on Justia Law

CFI, comprised of former insiders from the pipe fitting industry, brought a False Claims Act qui tam action against Victaulic, a global manufacturer and distributor of pipe fittings. The complaint alleged that Victaulic, for many years, imported millions of pounds of improperly marked pipe fittings without disclosing that the fittings are improperly marked, thereby avoiding paying marking duties. CFI alleged that Victaulic imported approximately 83 million pounds of fittings from overseas, 2003-2013, and a miniscule fraction of Victaulic’s fittings for sale in the U.S. bear any indication of their foreign origin, with an even smaller percentage bearing country of origin markings required by 19 U.S.C. 1304. The district court dismissed with prejudice, rejecting Victaulic’s jurisdictional argument that CFI’s complaint was based primarily on publicly available information, but finding that it failed to cross the threshold from possible to plausible. The court stated that it believed the FCA’s reverse false claims provision did not cover failure to pay marking duties, but declined to rule on those grounds because the complaint was based on legal conclusions unsupportable by the facts alleged. The Third Circuit vacated. Failure to pay marking duties may give rise to reverse false claims liability. CFI’s complaint contains enough reference to hard facts, combined with other allegations and an expert’s declaration, to allege a plausible course of conduct by Victaulic to which liability would attach. View "Customs Fraud Investigations LLC v. Victaulic Co." on Justia Law

Sigma-Tau imported two chemical products, both stabilized forms of the compound carnitine. Carnitine is a naturally occurring amino acid derivative and an important nutrient in the human body, where it serves to transport long-chain fatty acids into mitochondria, the centers for energy production within each cell. Our bodies obtain carnitine exogenously, from food, and also produce it endogenously, by breaking down and reforming protein. United States Customs and Border Protection initially classified the products under a subheading of the Harmonized Tariff Schedule of the United States (HSTUS) that carries a duty. Sigma-Tau protested, arguing that the products should be classified under HTSUS heading 2936 (which encompasses “provitamins and vitamins”), subheading 2936.29.50, a duty-free classification. The Court of International Trade concluded that Sigma-Tau’s products should be classified under a different subheading, 2923.90.00, making them ineligible for duty-free treatment. The Federal Circuit reversed, agreeing with Sigma-Tau that its carnitine products are properly classified under that heading, because carnitine is a vitamin in neonates. View "Sigma-Tau Healthscience, Inc. v. United States" on Justia Law

OtterBox imports protective cases designed for smartphones. The Customs Department classified the cases as “similar containers” under the Harmonized Tariff Schedule (HTSUS) subheading 4202.99.00 with a duty rate of 20% ad valorem. OtterBox paid duties at the 20% rate, and the goods were liquidated. OtterBox’s protest was deemed denied. In the Court of International Trade, Otterbox cited 19 U.S.C. 1515, alleging that the merchandise should have been classified as “other articles of plastics” under HTSUS subheading 3926.90.99, at a duty rate of 5.3% ad valorem. The Trade Court agreed, and the Federal Circuit affirmed,finding that the cases are not classifiable as “similar containers” under Heading 4202, but are properly classified under Heading 3926, as other articles of plastics. To fall under the general phrase “similar containers,” the merchandise must possess the same essential characteristics or purposes that unite the exemplars and noted that four characteristics unite the exemplars of Heading 4202: organizing, storing, protecting, and carrying. The Otterbox products “allow an article to be placed inside them and/or taken out without much effort by opening or closing the receptacle” and do not organize, store, or carry. While the listed examples “are not ones which permit the use of the enclosed item,” the electronic devices enclosed by the OtterBox merchandise “retain their full, 100 percent functionality while inside an OtterBox.” View "Otter Prods, LLC v. United States" on Justia Law

The defendant companies, based in China, produce conventional solar energy panels. Energy Conversion and other American manufacturers produce the newer thin-film panels. The Chinese producers sought greater market shares. They agreed to export more products to the U.S. and to sell them below cost. Several entities supported their endeavor. Suppliers provided discounts, a trade association facilitated cooperation, and the Chinese government provided below-cost financing. From 2008-2011, the average selling prices of their panels fell over 60%. American manufacturers consulted the Department of Commerce, which found that the Chinese firms had harmed American industry through illegal dumping and assessed substantial tariffs. The American manufacturers continued to suffer; more than 20 , including Energy Conversion, filed for bankruptcy or closed. Energy Conversion sued under the Sherman Act, 15 U.S.C. 1, and Michigan law, seeking $3 billion in treble damages, claiming that the Chinese companies had unlawfully conspired “to sell Chinese manufactured solar panels at unreasonably low or below cost prices . . . to destroy an American industry.” Because this allegation did not state that the Chinese companies could or would recoup their losses by charging monopoly prices after driving competitors from the field, the court dismissed the claim. The Sixth Circuit affirmed. Without such an allegation or any willingness to prove a reasonable prospect of recoupment, the court correctly rejected the claim. View "Energy Conversion Devices Liquidation Trust v. Trina Solar Ltd." on Justia Law

The Commerce Department determined that a Vietnamese manufacturer of wind towers was selling its products in the U.S. at about 51.5% below normal value and imposed antidumping duties under 19 U.S.C. 1673. Commerce used statutory calculation methods that apply when imported goods come from a nonmarket economy, as the wind towers at issue do. The Court of International Trade affirmed. The Federal Circuit reversed in part, with respect to Commerce’s use of packing weights rather than component weights in its calculation of surrogate values. The court affirmed Commerce’s determination not to use Korean purchase prices for flanges, welding wire, and wire flux. The court vacated and remanded Commerce’s overhead determination with respect to jobwork charges, erection expenses, and civil expenses. View "CS Wind Vietnam Co., LTD. v. United States" on Justia Law

Polar, a Finnish company based in Finland, owns U.S. patents directed to a method and apparatus for measuring heart rates during physical exercise. Polar sued, alleging infringement directly and indirectly, through the manufacture, use, sale, and importation of Suunto products. Suunto is a Finnish company with a principal place of business and manufacturing facilities in Finland. Suunto and ASWO (a Delaware corporation with a principal place of business in Utah) are owned by the same parent company. ASWO distributes Suunto’s products in the U.S. Suunto ships the accused products to addresses specified by ASWO. ASWO pays for shipping; title passes to ASWO at Suunto’s shipping dock in Finland. At least 94 accused products have been shipped from Finland to Delaware retailers using that standard ordering process. At least three Delaware retail stores sell the products. Suunto also owns, but ASWO maintains, a website, where customers can locate Delaware Suunto retailers or order Suunto products. At least eight online sales have been made in Delaware. The Federal Circuit vacated dismissal of Suunto for lack of personal jurisdiction. Suunto’s activities demonstrated its intent to serve the Delaware market specifically; the accused products have been sold in Delaware. Suunto had purposeful minimum contacts, so that Delaware’s “assertion of personal jurisdiction is reasonable and fair” and proper under the Delaware long-arm​ statute. View "Polar Electro Oy v. Suunto Oy" on Justia Law

In 2007, Hutchison imported furniture from China through Orient International. The Commerce Department assigned Orient an antidumping duty margin of 216.01%. The Court of International Trade (CIT) entered an injunction and directed that the entries be liquidated “in accordance with the final court decision ... including all appeals.” In February 2013, CIT sustained Commerce’s remand redetermination, including a rate of 83.55%. Orient did not appeal; in June CIT ordered that Orient’s entries be liquidated in accordance with the February Final Judgment. In September, Customs liquidated the entries at 83.55%. Hutchison filed an unsuccessful protest with Customs under 19 U.S.C. 1514. In October 2014, Hutchison sought review under 28 U.S.C. 1581(i)(4), asserting that the entries should have been deemed liquidated at 7.24%, citing 19 U.S.C. 1504(d): “[w]hen a suspension required by statute or court order is removed, [Customs] shall liquidate the entry . . . within [six] months after receiving notice of the removal,” and, if the entry is not so liquidated, it shall be deemed "liquidated at the rate of duty, value, quantity, and amount of duty asserted by the importer” at the time of entry. Hutchison argued that Commerce’s liquidation instructions misidentified the date on which suspension of liquidation was lifted and that the suspension expired with the Final Judgment. CIT dismissed for lack of subject matter jurisdiction, stating that the “claim involves a protestable [Customs] decision,” which Hutchison could have appealed under 28 U.S.C. 1581(a) if its protest was denied. The Federal Circuit affirmed; regardless of whether the Final Judgment constituted a final court decision or constituted notice to Customs, starting the six-month period in 1504(d), a party may not invoke jurisdiction under 28 U.S.C. 1581(i) when jurisdiction under another subsection could have been invoked. View "Hutchison Quality Furniture, Inc. v. United States" on Justia Law

In 2003, several class action lawsuits were filed against automobile manufacturers and trade associations, alleging antitrust conspiracy, Bus. & Prof. Code, 167201, and unfair business practices, Bus. & Prof. Code, 17200, on behalf of individuals who purchased or leased new vehicles in California within a certain time period. The lawsuits, which were eventually coordinated, alleged conspiracy to restrict the movement of lower-priced Canadian vehicles into the U.S. market, to avoid downward pressure on U.S. new vehicle prices. After years of litigation, the court granted summary judgment in favor of the two remaining defendants, Ford U.S. and Ford Canada, concluding that there was not sufficient evidence of an actual agreement among Ford and the other manufacturers to restrict the export of new vehicles from Canada to the U.S. The court of appeal affirmed with respect to Ford U.S., but concluded that the admissible evidence was sufficient to demonstrate a material factual issue as to whether Ford Canada participated in an illegal agreement to restrict the export of automobiles. The court noted an expert economic analysis indicating that the manufacturers would not have continued to restrict exports during the alleged conspiracy period absent an agreement that none of them would break ranks and reap the profits available in the export market; parallel conduct by the manufactures during the same period; and deposition testimony. View "In re: Auto. Antitrust Cases I and II" on Justia Law