Justia International Trade Opinion Summaries

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

This case involved the disappearance of nearly 2,000 boxes of Christmas lights while in transit from China to Mexico. Mari Jose, a Mexican corporation engaged in the import and export business, filed suit against Transmaritime, a logistics company, for loss of its goods in transit under the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. 14706. On appeal, Transmaritime challenged the district court's grant of summary judgment in favor of Mari Jose. The court concluded that the district court erred in granting summary judgment in favor of Mari Jose because Mari Jose failed to establish the first element of its prima facie case under the Carmack Amendment: delivery of the goods in good condition to the carrier. Accordingly, the court reversed and remanded for further proceedings. View "Distribuidora Mari Jose, S.A. v. Transmaritime, Inc." on Justia Law

In 1997, the U.S. Department of Commerce determined, under 19 U.S.C. 1673b, that freshwater crawfish tail meat from China was being sold in the U.S. at less than fair value and directed Customs to suspend final computation of duties on such entries and to require a deposit or bond to cover estimated duties. In 2000-2001, New Phoenix made entries of the product. The exporters were subject to “new shipper” review to determine whether they were entitled to antidumping-duty rates distinct from the default rate. Each of five bonds issued by Great American to cover anticipated duties was for $1,219,458 and was signed by Davis and accepted by the government, although the power-of-attorney filed with Customs indicated a limit of $1 million on his authority. Great American later revoked his authority. In 2003, Commerce published final results, finding that the exporter was not entitled to a different rate and sought payment from New Phoenix and Great American. The amount owed is greater than the amounts of the bonds. The trial court granted the government summary judgment, without pre- and post-judgment interest, finding that the government did not timely address those issues. The Federal Circuit affirmed that the bonds were not enforceable beyond Davis’s stated authority and the denial of pre-judgment interest View "United States v. Great Am. Ins. Co" on Justia Law

In 2008, the U.S. Department of Commerce found that woven laminated sacks exported from China were being sold in the U.S. at less than fair market value and issued an antidumping duty order under 19 U.S.C. 1673. In 2009, Commerce initiated administrative review of that order for periods, during which AMS had imported sacks made from fabric sourced in China, undisputedly subject to the order; and sacks made from fabric imported into China from other countries. Commerce investigated, but did not initiate formal scope inquiry. AMS argued that a ruling obtained from U.S. Customs and Border Protection provided that the sacks produced from non-Chinese fabric were deemed to be from the country of origin of the fabric, not subject to the order and declared a non-Chinese origin for sacks made with non-Chinese fabric. Commerce concluded that China was the country of origin of sacks made with non-Chinese fabric under a substantial transformation analysis, then issued a “clarification” of its instructions to Customs to “suspend liquidation of all [laminated woven sacks] from [China], regardless of the origin of the woven fabric,… on or after January 31, 2008.” The Trade Court sustained application of a country-wide rate; the Federal Circuit affirmed. Following a second administrative review, the trade court held that Commerce violated its own regulations by instructing Customs to retroactively suspend liquidation of entries of the sacks made with non-Chinese fabric The Federal Circuit affirmed. View "AMS Assocs, Inc. v. United States" on Justia Law

Cross Match claimed that Suprema and Mentalix violated 19 U.S.C. 1337(a)(1)(B)(i) by importing articles that infringe or are used to infringe its patents. The International Trade Commission entered a limited exclusion order barring importation of certain optical scanning devices, finding that Mentalix directly infringed a method claim by using its own software with imported Suprema scanners and found that Suprema induced that infringement and that certain of Suprema’s imported optical scanners directly infringe other claims of the 993 patent. The Commission found no infringement of the 562 patent. The Commission held that Suprema and Mentalix failed to prove that the 993 patent was invalid as obvious over two prior art patents. The Federal Circuit vacated and remanded for revision of the order to bar only a subset of the scanners. An exclusion order based on a section 1337(a)(1)(B)(i) violation may not be predicated on a theory of induced infringement under 35 U.S.C. 271(b) where direct infringement does not occur until after importation of the articles the exclusion order would bar. View "Suprema, inc. v. Int'l Trade Comm'n" on Justia Law

Wilton imported 39 models of paper punches from Taiwan for use in scrapbooking and craft projects, to cut paper in a variety of shapes and sizes. Except for one model, U.S. Customs and Border Protection initially liquidated the punches under Harmonized Tariff Schedule of the U.S. (HTSUS) subheading 8203.40.60 as “perforating punches and similar handtools” with a duty margin of 3.3%. Customs denied Wilton’s protests to classify them under the duty free HTSUS subheading 8441.10.00 as “cutting machines of all kinds.” The parties entered into a stipulation agreement to classify 23 models under subheading 8441.10.00 because they were too large to use in the hand. Customs maintained that subheading 8203.40.60 was proper for the 16 models that remained in dispute because they were “intended for use when held in the hand.” The U.S. Court of International Trade granted the government summary judgment, setting aside the stipulation and finding that the punches “prima facie fall under Heading 8203 as a perforating punch.” The Federal Circuit affirmed; the articles at issue are described eo nomine by HTSUS Heading 8203.40 View "Wilton Indus., Inc. v. United States" on Justia Law

In 2010, Microsoft filed a complaint in the U.S. International Trade Commission, alleging that Motorola had violated the Tariff Act of 1930, 19 U.S.C. 1337, by importing mobile phones and tablets that infringe several Microsoft patents. The Commission instituted an investigation and, after an evidentiary hearing, the ALJ found that the accused Motorola products did not infringe the 054, 762, 376, or 133 patents and that Microsoft had failed to prove that the mobile devices on which it relied actually implemented those patents. The Commission upheld the ALJ’s findings, finding that Microsoft failed to prove that the Microsoft-supported products on which it relied for its domestic-industry showing actually practiced the patents. The Federal Circuit reversed in part, first affirming that Motorola does not infringe the 054 patent and that Microsoft failed to prove that a domestic industry exists for products protected by the 762 and 376 patents. With respect to the 133 patent the Commission relied on incorrect claim constructions in finding no infringement, the only basis for its finding no violation, for the main group of accused products. The court affirmed the noninfringement finding for the accused alternative design. View "Microsoft Corp. v. Int'l Trade Comm'n" on Justia Law

Del Monte imports products consisting of tuna, with sauce, in a sealed microwaveable package. The tuna accounts for 80 percent of the total product weight; the sauce accounts for 20 percent. U.S. Customs and Border Protection classified two of the three flavors under subheading 1604.14.10 of the U.S. Harmonized Tariff Schedule, which covers tuna packed “in oil,” because their sauces include some oil. Customs appraised the goods based on the price that Del Monte paid its supplier of importation, without adjusting for $1.5 million that Del Monte later received from its supplier after negotiations over the accuracy of the amount originally paid. The Court of International Trade held that Del Monte’s goods were properly classified and valued. The Federal Circuit affirmed. Fish products in which the only oil is added as part of a liquid substance introduced at the time of packing are considered “in oil” even if the liquid does not consist entirely of oil; there is no minimum threshold for the amount of oil that must be present. Imported merchandise must be appraised, when possible, based on its “transaction value,” 19 U.S.C. 1401a(a)(1), “the price actually paid or payable for the merchandise when sold for exportation,” regardless of subsequent rebates. View "Del Monte Corp. v. United States" on Justia Law

In 1996, the Department of Commerce determined that certain pasta products from Italy were being sold in the U.S. at less than fair value and published an order imposing antidumping duties. Several years later, Commerce conducted its ninth administrative review of that order, covering the period of July 1, 2004, through June 30, 2005 and arrived at an antidumping duty margin of 18.18 percent for Atar. Commerce ordinarily compares the export price of the subject merchandise with the price of like products sold in the exporter’s home market or in a representative third country, 19 U.S.C. 1677(35), 1677b(a)(1)(A)–(C). Commerce determined that it could not assess normal value by reference to Atar’s proffered home-market or third-country sales data, so it approximated the normal value of Atar’s subject goods using a constructed value approach. The Court of International Trade rejected Commerce’s calculations. After several remands, Commerce revised its profit cap determination, eventually including above- and below-cost sales made by profitable and unprofitable respondents in the prior administrative review. The trade court then sustained Commerce’s duty calculations. The Federal Circuit reversed, holding that Commerce acted reasonably in excluding below-cost sales data from the prior administrative review when calculating the constructed value profit cap applicable to Atar’s subject merchandise. View "Atar S.R.L v. United States" on Justia Law