[Federal Register Volume 79, Number 245 (Monday, December 22, 2014)]
[Notices]
[Pages 76368-76370]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-29808]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-883]
Investigations: Terminations, Modifications and Rulings: Certain
Opaque Polymers
AGENCY: U.S. International Trade Commission.
ACTION: Notice.
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SUMMARY: Notice is hereby given that the U.S. International Trade
Commission has granted motions by Finnegan, Henderson, Farabow, Garrett
& Dunner, LLP (``Finnegan'') and [Ouml]m[uuml]r Yarsuvat (``Yarsuvat'')
to intervene in this investigation for a limited purpose.
[[Page 76369]]
The Commission has further determined to review an initial
determination (``ID'') (Order No. 27) issued by the presiding
administrative law judge (``ALJ'') finding respondents Organik Kimya
San. ve Tic. A.[Scedil] of Istanbul, Turkey; Organik Kimya Netherlands
B.V. of Rotterdam-Botlek, Netherlands; and Organik Kimya US, Inc., of
Burlington, Massachusetts (collectively, ``Organik Kimya'') to be in
default as a sanction for discovery abuse and ordering monetary
sanctions. Accordingly, the Commission requests written submissions,
under the schedule set forth below, on certain issues under review and
on the issues of remedy, public interest, and bonding.
FOR FURTHER INFORMATION CONTACT: Clark S. Cheney, Office of the General
Counsel, U.S. International Trade Commission, 500 E Street SW.,
Washington, DC 20436, telephone (202) 205-2661. Copies of non-
confidential documents filed in connection with this investigation are
or will be available for inspection during official business hours
(8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S.
International Trade Commission, 500 E Street SW., Washington, DC 20436,
telephone (202) 205-2000. General information concerning the Commission
may also be obtained by accessing its Internet server at http://www.usitc.gov. The public record for this investigation may be viewed
on the Commission's electronic docket (EDIS) at http://edis.usitc.gov.
Hearing-impaired persons are advised that information on this matter
can be obtained by contacting the Commission TDD terminal on (202) 205-
1810.
SUPPLEMENTARY INFORMATION: The Commission instituted this investigation
on June 21, 2013, based on a complaint filed by the Dow Chemical
Company of Midland, Michigan, and by Rohm and Haas Company and Rohm and
Haas Chemicals LLC, both of Philadelphia, Pennsylvania (collectively,
``Dow''). 78 FR 37571 (June 21, 2013). The complaint alleged violations
of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337),
by reason of the importation into the United States, the sale for
importation, and the sale within the United States after importation of
certain opaque polymers that infringe certain claims of four United
States patents: U.S. Patent Nos. 6,020,435; 6,252,004; 7,435,783; and
7,803,878. The notice of investigation named five respondents: the
three Organik Kimya respondents noted above; Turk International LLC of
Aptos, California (``Turk''); and Aalborz Chemical LLC d/b/a All Chem
of Grand Rapids, Michigan (``Aalborz''). The complaint and notice of
investigation were amended to add allegations of misappropriation of
trade secrets. 78 FR 71643 (Nov. 29, 2013). The Office of Unfair Import
Investigations is not a party to this investigation.
On December 13, 2013, the Commission determined not to review an
initial determination (Order No. 11) terminating the investigation with
respect to U.S. Patent Nos. 7,435,783; and 7,803,878.
On May 19, 2014, Dow filed a motion for default and other sanctions
against Organik Kimya for discovery abuse. On May 21, 2014, Organik
Kimya filed a motion to terminate based upon a consent order
stipulation. On July 8-9, 2014, the ALJ conducted a hearing on the
pending motions. On October 20, 2014, the ALJ issued an ID (Order No.
27) finding Organik Kimya in default, under Commission Rule 210.42(c),
and ordering monetary sanctions jointly and severally against Organik
Kimya and its counsel. Organik Kimya is represented by Finnegan, a law
firm in Washington, DC, and by Yarsuvat, an attorney in Istanbul,
Turkey. The ALJ denied Organik Kimya's motion to terminate the
investigation based upon a consent order stipulation.
On October 28, 2014, Organik Kimya filed a petition for review of
the sanctions ID. The same day, Finnegan and Yarsuvat filed separate
motions before the Commission to intervene in the investigation for the
purpose of contesting joint liability for the monetary sanction.
Finnegan and Yarsuvat also filed provisional petitions for review of
the sanctions ID. On November 10, 2014, Finnegan filed a motion for
leave to file a reply in support of its motion to intervene, which Dow
opposed. The Commission extended the time for determining whether to
review the sanctions ID until December 16, 2014.
On October 30, 2014, Dow filed an unopposed motion to withdraw the
amended complaint as to the two remaining asserted patents, U.S. Patent
Nos. 6,020,435 and 6,252,004, and to withdraw all allegations against
Turk and Aalborz. On November 3, 2014, the ALJ granted the motion in an
ID (Order No. 29), and on December 1, 2014, the Commission determined
not to review the ID. Accordingly, the only remaining respondents in
the investigation are the Organik Kimya respondents. The only remaining
issues are Dow's claims based on trade secret misappropriation and the
sanctions ID.
The Commission has determined to grant the motion by Finnegan for
leave to file a reply in support of its motion to intervene and has
considered the reply. The Commission has further determined to grant
the petitions by Finnegan and Yarsuvat to intervene in this
investigation for the limited purpose of disputing joint and several
liability for the monetary sanctions imposed in the sanctions ID. The
Commission has considered the petitions for review filed by Finnegan
and Yarsuvat, in addition to the petition for review filed by Organik
Kimya and the oppositions thereto filed by Dow.
In light of the intervention by Finnegan and Yarsuvat, the
Commission has determined to review the sanctions ID. In connection
with its review, the Commission requests responses only to the
following questions. The parties are to brief their positions with
reference to the applicable law and citations to the existing
evidentiary record. No new evidence will be considered.
1. Please brief the law governing what types of notice and
opportunity to present evidence and argument must be provided to
counsel before imposing sanctions on the counsel based on the types of
conduct cited on page 112 of the ID. Please also brief how that
governing law applies to Organik Kimya's counsel in this investigation,
based on the existing record in this investigation. In answering this
question, please specifically address whether and when Organik Kimya's
counsel was or should have been on notice that counsel might be subject
to sanctions and whether they were given adequate opportunity to
present evidence and argument on any issue of which they had notice.
2. Please discuss duties that counsel may have under ITC rules,
ethics rules, case law, and any other relevant sources with respect to
the conduct cited on page 112 of the ID, including duties relating to
the implementation of a litigation hold, a duty to investigate before
making a representation to the tribunal, a duty to avoid willful
blindness, or a duty to preserve or take possession of evidence. In
answering this question, please also address any duties that may arise
when counsel has received notice of allegations that the counsel's
client has intentionally spoliated evidence. Please also explain with
citation to the existing record whether Organik Kimya's counsel
satisfied any such duties in this investigation.
Other issues on review are adequately presented in the parties'
existing filings. The parties are not to brief the sanction finding
Organik Kimya in default nor Organik Kimya's liability for monetary
sanctions.
[[Page 76370]]
In connection with the final disposition of this investigation, the
Commission may: (1) Issue an order that could result in the exclusion
of articles manufactured or imported by the respondents; and/or (2)
issue a cease and desist order that could result in the respondents
being required to cease and desist from engaging in unfair acts in the
importation and sale of such articles. Accordingly, the Commission is
interested in receiving written submissions that address the form of
remedy, if any, that should be ordered. If a party seeks exclusion of
an article from entry into the United States for purposes other than
entry for consumption, the party should so indicate and provide
information establishing that activities involving other types of entry
either are adversely affecting it or likely to do so. For background,
see Certain Devices for Connecting Computers via Telephone Lines, Inv.
No. 337-TA-360, USITC Pub. No. 2843, Comm'n Op. at 7-10 (December
1994).
If the Commission contemplates some form of remedy, it must
consider the effects of that remedy upon the public interest. The
factors that the Commission will consider include the effect that the
exclusion order and/or cease and desists orders would have on (1) the
public health and welfare, (2) competitive conditions in the U.S.
economy, (3) U.S. production of articles that are like or directly
competitive with those that are subject to investigation, and (4) U.S.
consumers. The Commission is therefore interested in receiving written
submissions that address the aforementioned public interest factors in
the context of this investigation.
If the Commission orders some form of remedy, the U.S. Trade
Representative, as delegated by the President, has 60 days to approve
or disapprove the Commission's action. See Presidential Memorandum of
July 21, 2005, 70 FR 43251 (July 26, 2005). During this period, the
subject articles would be entitled to enter the United States under
bond, in an amount determined by the Commission and prescribed by the
Secretary of the Treasury. The Commission is therefore interested in
receiving submissions concerning the amount of the bond that should be
imposed if a remedy is ordered.
Written Submissions: Parties to the investigation, interested
government agencies, and any other interested parties are encouraged to
file written submissions on the issues of remedy, the public interest,
and bonding. Complainants are requested to submit proposed remedial
orders for the Commission's consideration. Complainants are further
requested to state the date upon which the patents expire and the HTSUS
numbers under which the accused products are imported and to provide
identification information for all known importers of the subject
articles.
Written submissions and proposed remedial orders must be filed no
later than the close of business on December 30, 2014. Reply
submissions must be filed no later than the close of business on
January 7, 2015. No further submissions on these issues will be
permitted unless otherwise ordered by the Commission.
Persons filing written submissions must file the original document
electronically on or before the deadline stated above and submit eight
true paper copies to the Office of the Secretary pursuant to section
210.4(f) of the Commission's Rules of Practice and Procedure (19 CFR
210.4(f)). Submissions should refer to the investigation number (``Inv.
No. 337-TA-883'') in a prominent place on the cover page and/or the
first page. (See Handbook for Electronic Filing Procedures, http://www.usitc.gov/secretary/fed_reg_notices/rules/handbook_on_electronic_filing.pdf). Persons with questions regarding
filing should contact the Secretary (202-205-2000).
Any person desiring to submit a document to the Commission in
confidence must request confidential treatment. All such requests
should be directed to the Secretary to the Commission and must include
a full statement of the reasons why the Commission should grant such
treatment. See 19 CFR 201.6. Documents for which confidential treatment
by the Commission is properly sought will be treated accordingly. A
redacted nonconfidential version of the document must also be filed
simultaneously with any confidential filing. All nonconfidential
written submissions will be available for public inspection at the
Office of the Secretary and on EDIS.
The authority for the Commission's determination is contained in
section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and
in Part 210 of the Commission's Rules of Practice and Procedure (19 CFR
part 210).
Dated: December 16, 2014.
By order of the Commission.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2014-29808 Filed 12-19-14; 8:45 am]
BILLING CODE 7020-02-P