On February 10, Judge Essex issued the public version of his order denying Complainant’s Motion for Leave to Supplement Its Exhibit List and Witness Statement to Address Recent Developments in Its Domestic Industry.  In The Matter Of Certain RF Capable Integrated Circuits And Products Containing The Same, Inv. No. 337-TA-982, Order No. 20 (February 2, 2017).  Complainant ParkerVision sought to add forty-five exhibits and to supplement statements of four witnesses with information related to post-filing design and production activity in order to bolster its domestic industry case.  Id. at 1.  Respondents and the Commission Investigative Staff submitted responses opposing ParkerVision’s motion.  Id.

ALJ Essex noted that ParkerVision’s request is governed by Commission Rule 210.14(d), which allows supplementation “upon reasonable notice and on such terms as are just.”  Id. at 4.  However, he found that “the proposed supplementation cannot be made with reasonable notice at this late stage of the proceeding” (id. at 5) and that “allowing the proposed supplementation would not be just in this instance” (id. at 7).

On the “reasonable notice” issue, the ALJ explained that “because the hearing in this investigation is scheduled to begin in less than six weeks, and because the proposed supplementation represents significant new information and contentions regarding domestic industry, which Respondents and Staff have only just become aware of, the proposed supplementation cannot occur with reasonable notice at this point.”  Id. at 5.

On the “just terms” element, the ALJ concluded that “the relevance of the proposed supplementation is outweighed by the prejudice it would cause to the Respondents and Staff.”  Id. at 5-6.  ALJ Essex noted that “the appropriate date for determining whether a domestic industry exists or is in the process of being established is the date of filing of the complaint.”  Id. at 6.  He acknowledged that in some past investigations the Commission “look[ed] to post-filing activity to determine the satisfaction of the domestic industry requirement.”  Id. at 6.  However, this occurred “within [a] limited range of circumstances” and was “necessary to address significant and unusual developments that occur after filing,” “such as filing for bankruptcy after filing the complaint.”  Id.  ALJ Essex found that in this case, “[r]ather than being unusual developments, all of the supplementation appear[ed] to be routine development activities that simply had not yet occurred at the time of filing.”  Id.  Therefore, “the proposed supplementation will have marginal relevance to the domestic industry issue.”  Id.  Judge Essex added that “ParkerVision, as the complainant, ultimately had control over when to file its complaint.”  Id. at 5.  On the other hand, Staff and Respondents would be prejudiced because of the late stage of the Investigation, as they would be “required to substantially revisit fact and expert discovery in a short amount of time to account for the new information raised in the proposed supplementation.”  Id. at 6-7.

Takeaway

An ITC complainant should strive to have its domestic industry ducks in a row before filing the complaint.  As this case demonstrates, a complainant takes a risk by relying on post-filing activities to establish the economic prong of domestic industry.  The complainant might have difficulties developing a record, and it might not be able to present such evidence at trial.

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