Justia International Trade Opinion Summaries

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 2007, the Department of Commerce investigated imports of “certain activated carbon” from China by the largest volume exporters, Jacobi and CCT. Commerce determined that Huahui and Cherishmet and Shanxi were entitled to separate rates. In its third and final review in 2011, Commerce individually examined Jacobi and CCT. Cherishmet, Shanxi, and Huahui were assigned a separate rate. Huahui unsuccessfully requested individual examination as a voluntary respondent. Commerce determined that Jacobi and CCT, the individually examined respondents, were not dumping, and assigned them de minimis margins. Under 19 U.S.C. 1673d(c)(5), when all individually examined exporters are assigned de minimis margins, the “expected method” is to calculate the separate rate by taking the average of the de minimis margins assigned to the individually examined respondents. If following the expected method would not be feasible or would result in margins that would “not be reasonably reflective of potential dumping margins” for the separate respondents, Commerce may use “other reasonable methods.” Commerce determined that the expected method would result in margins that would not be "reasonably reflective" and calculated separate rates for Huahui, Cherishmet, and Shanxi, continuing to apply previously-assigned margins. The Federal Circuit affirmed the Trade Court in part, holding that Commerce’s use of prior margins was impermissible. Commerce failed to justify using the rate from the prior administrative review. View "Albemarle Corp. v. United States" on Justia Law

In antidumping proceedings involving nonmarket economy countries, such as China, the Tariff Act requires the Department of Commerce to calculate normal value of the subject merchandise based on surrogate values offered in a comparable market economy, 19 U.S.C. 1677b(c)(1). Commerce calculates the surrogate values by valuing certain “factors of production” used in producing the merchandise in a comparable market economy, essentially creating a hypothetical normal value for the merchandise that is uninfluenced by the nonmarket economy. In review of an anti-dumping duty order on certain steel threaded rod from China, Commerce selected Thailand as the surrogate country for China to value certain factors of production in calculating normal value for the subject merchandise. The Court of International Trade and the Federal Circuit affirmed, finding the decision in accordance with law, not arbitrary or capricious, and supported by substantial evidence. The court rejected an argument that Commerce was bound by its past practice of using India as a surrogate. View "Jiaxing Bros. Fastener Co. v. United States" on Justia Law

In 2001, U.S. producers filed an antidumping petition against imports of steel wire rod of at least 5.00 mm diameter,stating “[m]ost of the industrial quality wire rod is produced and sold in 7/32 inch (5.5 mm) diameter, which is also the smallest cross-sectional diameter that is hot-rolled in significant commercial quantities.” The ITC issued a “material injury” determination for product “of approximately round cross section, 5.00 mm or more, but less than 19.00 mm.” The Department of Commerce issued an antidumping duty order on imports from six countries, covering product with a diameter of “5.00 mm or more, but less than 19.00 mm.” After the order issued, Mexican companies manufactured and imported into the U.S. steel wire rod within a diameter of 4.75 mm. U.S. producers requested that Commerce investigate under 19 U.S.C. 1677. Commerce determined that 4.75 to 5.00 mm steel wire rod was a minor alteration of the subject merchandise and that its import constituted an affirmative circumvention of the order. The Trade Court remanded based on the literal scope of the order, finding the product was “commercially available” at the time of the original investigation. On remand, Commerce issued a redetermination of negative circumvention. The Trade Court remanded again, instructing Commerce to consider revisiting whether small-diameter rod was commercially available before issuance of the order. Commerce declined to do so. The Trade Court affirmed the negative circumvention determination. The Federal Circuit reversed: Commerce’s initial minor alteration determination was supported by substantial evidence. View "Deacero S.A. DE C.V. v. United States" on Justia Law

JBLU does business as C’est Toi Jeans USA. In 2010, JBLU imported jeans manufactured in China, embroidered with “C’est Toi Jeans USA,” “CT Jeans USA,” or “C’est Toi Jeans Los Angeles” in various fonts. JBLU filed trademark applications for “C’est Toi Jeans USA” and “CT Jeans USA” on October 8, 2010, stating that the marks had been used in commerce since 2005. Customs inspected the jeans and found violation of the Tariff Act, which requires that imported articles be marked with their country of origin, 19 U.S.C. 1304(a); JBLU’s jeans were marked with “USA” and “Los Angeles,” but small-font “Made in China” labels were not in close proximity to and of at least the same size as “USA” and “Los Angeles.” Customs applied more lenient requirements to the jeans that were marked with “C’est Toi Jeans USA” or “CT Jeans USA” and were imported after JBLU filed its trademark applications. The Trade Court granted the government summary judgment. The Federal Circuit reversed, finding that the more-lenient requirements apply to unregistered, as well as registered, trademarks. Regulations in the same chapter as 19 C.F.R. 134.47 and regulations in a different chapter but the same title use the word “trademark” to include registered and unregistered trademarks. View "JBLU, Inc. v. United States" on Justia Law

In 2004-2005, Ford imported Jaguar-brand cars from the UK into the U.S. and deposited estimated duty payments. Ford later concluded that its estimates had been too high and filed nine reconciliation entries, seeking a refund of about $6.2 million. Customs may liquidate an entry within one year after filing, 19 U.S.C. 1504(a). It may extend that period if it needs additional information or if the importer requests an extension, for a maximum of three one-year extensions. Otherwise the entry “shall be deemed liquidated at the rate ... asserted by the importer.” When an entry is deemed liquidated, Customs may not recalculate the duty owed. Ford asserted the rate in its reconciliation entries rather than the rate asserted at the time of entry. Ford sought a declaratory judgment that its entries had been liquidated as a matter of law in 2009. The Court of International Trade dismissed some claims as barred by the statute of limitations under 28 U.S.C. 2636(i) and declined to exercise its discretionary jurisdiction over the remaining claims. The Federal Circuit affirmed, declining to address the statute of limitations and noting that all of Ford’s entries have now liquidated; Customs denied the protest for Ford’s 2005 entries, and Ford has filed a section 1581(a) challenge. View "Ford Motor Co. v. United States" on Justia Law

In 2002, the Department of Commerce published notice of an antidumping duty order covering polyethylene terephthalate film, sheet, and strip (PET Film) from Taiwan, Commerce initiated administrative review in 2010, covering three respondents, including Nan Ya and Shinkong. Without providing a reason, Nan Ya informed Commerce that it would not participate in the review; it submitted no information. Commerce determined that Nan Ya significantly impeded the proceeding, applied an adverse inference to Nan Ya in selecting among the facts available, and assigned a 74.34% rate to Nan Ya. The Court of International Trade sustained Commerce’s determination. The Federal Circuit affirmed. Under 19 U.S.C. 1677e(b)(4), Commerce may assign the highest transaction-specific margin on the record of the subject review. If Commerce selects the highest transaction-specific margin from the subject review from among the adverse facts available, it need not corroborate that information. Congress has confirmed there that Commerce has the “discretion to apply [the] highest rate” and need not demonstrate that a particular dumping margin “reflects an alleged commercial reality of the interested party,=” in the Trade Preferences Extension Act of 2015. View "Nan Ya Plastics Corp. v. United States" on Justia Law

Ford imported automotive goods and paid duties. Ford later claimed North American Free Trade Agreement (NAFTA) preference on those imports and sought a refund of duties under 19 U.S.C. 1520(d). The parties relied on a June 1997 entry as a test case. Ford was required to file certificates of origin within one year of importation, but did not file the certificate until November 1998 and was unable to secure a written waiver. Customs denied Ford’s claim, then denied Ford’s protest. The Federal Circuit rejected Ford’s argument that Customs had an affirmative obligation under its regulations to accept Ford’s untimely filing, but remanded for determination of whether traditional refund claims, not processed through the electronic “reconciliation” program, should enjoy the same waiver benefit available through that program. On remand, Customs explained that the reconciliation program (19 U.S.C. 1484(b)) is a procedural means for processing import entries, including an ability to claim the substantive duty refund benefit under section 1520(d), and has statutory safeguards that permit Customs to remedy mistakes and misconduct in awarding NAFTA duty free treatment. Many reconciliation program safeguards are not available in the traditional post-entry duty refund process. The reconciliation program provides added confidence in the legitimacy of the importer’s claims. The Federal Circuit affirmed that Customs’ interpretation of the statutory scheme was reasonable. View "Ford Motor Co. v. United States" on Justia Law

In 2006, the Department of Commerce announced that it was changing a method it used to calculate whether imported goods are being sold in the United States at less than fair value, i.e., being dumped. Previously, Commerce employed “zeroing” in that calculation: for goods sold above fair value, Commerce treated the sale price as being at (rather than above) fair value—it zeroed out margins above fair value and permitted no offset against below-fair-value sales in calculation of the average, resulting in larger average dumping margins than if offsetting had been allowed. The new policy generally made it more difficult to find dumping. Commerce stated that the change would apply “in all current and future antidumping investigations as of the effective date” and that it would apply the final modification to all investigations pending as of the effective date. There were seven such investigations, all initiated by petitions filed after March 6, 2006, when the new no-zeroing policy was proposed. Two companies found to have engaged in dumping argued that their cases were governed by the new policy. The Federal Circuit upheld Commerce’s determination that they were not. Commerce spoke ambiguously on timing in adopting its new policy and reasonably resolved the ambiguity to exclude the cases. View "Diamond Sawblades Mfr. Coal. v. United States" on Justia Law