Justia International Trade Opinion Summaries

In 2009, the U.S. Department of Commerce initiated the Fifth Administrative Review of the Antidumping Duty Order covering TPBI’s polyethylene retail carrier bags imported from Thailand during the 2008–2009 review period, 19 U.S.C. 1673. Commerce calculated the normal value of TPBI’s merchandise based on a constructed value, having determined that the sales in the exporting country of the foreign like product had been made at prices below the cost of production. Commerce found that TPBI’s methodology did not reasonably reflect actual costs because it resulted in products with few or minor physical differences being assigned significantly different costs of manufacturing. Commerce disregarded the below-cost sales. The Court of International Trade affirmed. Finding Commerce’s determinations supported by substantial evidence and in accordance with law, the Federal Circuit affirmed. View "Thai Plastic Bags Indus. Co., Ltd. v. United States" on Justia Law

Motorola and its foreign subsidiaries buy LCD panels and incorporate them into cellphones. They alleged that foreign LCD panel manufacturers violated section 1 of the Sherman Act, 15 U.S.C. 1, by fixing prices. Only about one percent of the panels were bought by Motorola in the U.S. The other 99 percent were bought by, paid for, and delivered to foreign subsidiaries; 42 percent of the panels were bought by subsidiaries and incorporated into products that were shipped to Motorola in the U.S. for resale. The other 57 percent were incorporated into products that were sold abroad and never became U.S. domestic commerce, subject to the Sherman Act. The district judge ruled that Motorola’s claim regarding the 42 percent was barred by 15 U.S.C. 6a(1)(A): the Act “shall not apply to conduct involving trade or commerce (other than import trade or import commerce) with foreign nations unless such conduct has a direct, substantial, and reasonably foreseeable effect on trade or commerce which is not trade or commerce with foreign nations, or on import trade or import commerce with foreign nations.” The Seventh Circuit affirmed, reasoning that rampant extraterritorial application of U.S. law “creates a serious risk of interference with a foreign nation’s ability independently to regulate its own commercial affairs.” View "Motorola Mobility LLC v. AU Optronics Corp." on Justia Law

Corning hired Hyundai, an ocean shipper, to transport thin glass sheets for use in televisions and computer monitors from the U.S. to Asia. Although it is not clear when the damage occurred, damage was noted when Hyundai unloaded the containers from flatcars operated by its subcontractors (Norfolk Southern Railway and BNSF, another rail carrier). Corning had no role in selecting and no relationship with the subcontractors. There were opinions that the damage was caused by movement of the railcars, not by packing, but the actual cause was not established. Corning’s insurer paid Corning $664,679.88 and filed suit. The district court held that the case would proceed solely under the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. 11706, apparently reasoning that the damage undisputedly occurred while the cargo was in the possession of a rail carrier. The court found that a Subcontracting Clause did not immunize the rail carriers from suit, but obligated Corning to indemnify Hyundai for any resultant claims by a subcontractor against Hyundai arising out of the same facts. The court held that a $500-per-package limit of liability did not apply to the rail carriers or Hyundai. After a jury trial, the court found Hyundai and the railroads liable, but denied prejudgment interest. The Sixth Circuit affirmed the judgment against Hyundai, reversed and vacated judgments against the railroads, and remanded for reconsideration of prejudgment interest.View "CNA Ins. Co. v. Hyundai Merch. Marine Co., Ltd." on Justia Law

The Tariff Act of 1930 permits the Department of Commerce to impose two types of duties on imports that injure domestic industries: antidumping duties on goods sold in the U.S. "at less than ... fair value,” 19 U.S.C. 1673 and countervailing duties on goods that receive “a countervailable subsidy” from a foreign government, 1671(a). Commerce has long collected both types of duties from market economy importers. In 2012, Congress enacted legislation that overruled the Federal Circuit’s 2011 decision, GPXI, and permitted imposition of both antidumping and countervailing duties with respect to importers from non-market economy (NME) countries. Because this law is retroactive and does not require Commerce to adjust for any double counting that may result from the retroactive imposition of both countervailing and antidumping duties, Wireking, an importer affected by the change, claimed that it violated the Ex Post Facto Clause of Article I, Section 9 of the U.S. Constitution. The Court of International Trade upheld the new law. The Federal Circuit affirmed. Wireking did not show that the absence of a retrospective double-counting provision negates the law’s predominantly remedial impact. The 2012 law is not punitive and does not violate the Ex Post Facto Clause. View "Guangdong Wireking Housewares v. United States" on Justia Law

In 2005, the Department of Commerce issued an antidumping duty order on wooden bedroom furniture from China; importers who were not individually investigated are required to post a deposit at a country-wide rate of 216.01%. Marvin, a Chinese furniture producer and exporter, did not export subject merchandise during the investigation period. In 2011, Marvin requested new shipper review to obtain an individual rate and avoid the country-wide rate. Based on U.S. Customs and Border Protection data, Commerce determined that Marvin’s exports had entered the U.S. in 2010. Marvin explained that the entries contained only non-subject merchandise samples for a trade show with no offers for sale. Commerce accepted Marvin’s explanation and initiated new shipper review covering Marvin’s exports entered from January 1 through June 30, 2011. Marvin later submitted information that the 2010 entries included some subject merchandise, entered for consumption, contrary to its initial request. In 2012, Commerce preliminarily rescinded Marvin’s new shipper review. Marvin argued harmless and unintentional error that did not affect new shipper review eligibility. Commerce finalized the rescission, citing19 C.F.R. 351.214(b)(2)(iv)(A) and (B). The Trade Court affirmed, holding that 19 U.S.C. 1677m, which allows a party to correct filings, was inapplicable because Marvin’s request for a new shipper review was not filed in “response to a request for information” under the statute. The Federal Circuit affirmed. View "Marvin Furniture Co., Ltd. v. United States" on Justia Law

Nooren owns patent 044, entitled “Use of a Preparation for Insulation/Sealing and Coating Purposes and Method for Sealing Manhole Covers,” which discloses a composition for insulating and protecting substrates, such as manhole covers, underground tanks, pipes, and cable sleeves, from corrosion, water ingress, and mechanical stresses. The patent is licensed exclusively to Stopaq, a Dutch company that designs and manufactures coatings and sealants that exhibit both viscous and elastic properties (visco-elasticity) and are designed for corrosion protection and waterproofing. Kleiss, a Dutch company, manufactures similar products that prevent corrosion and protect against leaks, which are distributed in the U.S. by Amcorr. Kleiss and Amcorr sought a declaratory judgment in the Netherlands that their products did not infringe the 044 patent. Nooren filed suit in the U.S., alleging infringement. The parties agreed to focus on the phrase “a filler comprising a plurality of fractions each comprising different size particles, and wherein said different fractions have different particle size distributions” in the only independent claim in the patent. The court granted summary judgment of noninfringement in favor of Amcorr. The Federal Circuit vacated, holding that the district court erred in at least on claim construction. View "Frans Nooren Afdichtingssystem v. Stopaq Amcorr Inc." on Justia Law

LSI imported beef jerky products consisting of sliced, cooked, cured, and dried meat seasoned with salt and other spices and flavors from New Zealand and Brazil. The manufacturing process for the imported jerky involves curing the sliced boneless beef in a mixture of seasoning, sodium nitrate, and water for 24 to 48 hours, after which the meat is cooked and smoked for several hours. In airtight bags, the product has a shelf life of 18–20 months. U.S. Customs and Border Protection classified the subject beef jerky under Harmonized Tariff Schedule of the U.S. (HTSUS) subheading 1602.50.09 as “cured” prepared or preserved beef and denied LSI’s protests to classify it under subheading 1602.50.2040 as “other” prepared or preserved beef. LSI filed suit in the Court of International Trade, which granted the government summary judgment. The court considered LSI’s arguments that beef jerky is defined more by its dehydrated properties than by the curing process, but found that subheading 1602.50.09 included all forms of the named article, even improved forms. The Federal Circuit affirmed. View "Link Snacks, Inc. v. United States" on Justia Law

A number of suits have challenged the accuracy of the warning label on Pradaxa, a prescription blood-thinning drug manufactured by Boehringer. The litigation is in the discovery stage. The district judge presiding over the litigation imposed sanctions on Boehringer for discovery abuse. Boehringer sought a writ of mandamus quashing the sanctions, which included fines, totaling almost $1 million and also ordered that plaintiffs’ depositions of 13 Boehringer employees, all of whom work in Germany be conducted at “a place convenient to the [plaintiffs] and [to] the defendants’ [Boehringer’s] United States counsel,” presumably in the United States. The parties had previously agreed to Amsterdam as the location. The Seventh Circuit rescinded the order with respect to the depositions but otherwise denied mandamus. View "Boehringer Ingelheim Pharm. v. Herndon" on Justia Law

After receiving petitions from the Coalition, the U.S. Department of Commerce initiated antidumping (19 U.S.C. 1673) and countervailing duty (19 U.S.C. 1671) investigations covering utility scale wind towers from China and an antidumping investigation covering Vietnam. The U.S. International Trade Commission issued a preliminary determination that there was a reasonable indication of threat of material injury to a domestic industry by reason of the imports. Commerce issued a preliminary affirmative countervailing duty determination with respect to imports from China and preliminary affirmative antidumping duty determinations with respect to imports from China and Vietnam. Commerce instructed Customs and Border Protection to suspend liquidation of all entries of the subject merchandise and require cash deposits for the entries. Commerce then made final affirmative determinations. ITC issued a final affirmative determination in an evenly-divided vote, but of the six Commissioners on the panel, three found neither material injury nor threat of injury, two determined that the industry had suffered present material injury, and a third determined that the domestic industry was threatened with material injury, but that the domestic industry would not have suffered material injury in the absence of the provisional measures. Commerce then issued antidumping and countervailing duty orders. Commerce applied the “Special Rule,” 19 U.S.C. 1671e(b)(2) and 1673e(b)(2), making the orders effective prospectively from the publication of the ITC Determination. The orders indicated that Commerce would instruct Customs to terminate the suspension of liquidation and refund deposits made before the publication date of the ITC Determination. The Court of International Trade denied the Coalition’s motions for injunctions. The Federal Circuit affirmed. View "Wind Tower Trade Coal. v. United States" on Justia Law

In 2004 GEA, a German company, agreed to sell a subsidiary, DNK, to Flex‐N‐Gate, a U.S. manufacturer for €430 million. The contract required arbitration of all disputes in Germany. The sale did not close. GEA initiated arbitration before the Arbitral Tribunal of the German Institution of Arbitration. The arbitration was pending in 2009 when GEA filed suit in an Illinois federal district court, against Flex‐N‐Gate and its CEO, Khan, alleging that the defendants had fraudulently induced it to enter into the contract; that Khan stripped the company of assets so that it would be unable to pay any arbitration award; and that Khan was Flex‐N‐Gate’s alter ego. GEA then asked the district judge to stay proceedings, including discovery. The judge declined to stay discovery. GEA filed a notice of appeal after the German arbitration panel awarded GEA damages and costs totaling $293.3 million. The Seventh Circuit dismissed GEA’s appeal as moot, but the German Higher Regional Court in vacated the arbitration award. GEA renewed its motion. The district judge again denied the stay, stating that he was unsure how the arbitration would affect the case before him and didn’t want to wait to find out. The Seventh Circuit reversed. The district judge then imposed a stay, which it later lifted for the limited purpose of allowing Khan to conduct discovery aimed at preserving evidence that might be germane to GEA’s claims against him in the district court suit. The Seventh Circuit affirmed, first holding that it had appellate jurisdiction.View "GEA Group AG v. Baker" on Justia Law