As we have previously reported, the Commission recently heard its first Section 337 oral argument in nearly ten years.  Hot on the heels of that proceeding, the ITC has again granted an oral argument in a Section 337 investigation.  This time they have asked for argument on an antitrust claim that was terminated by the presiding ALJ.

The Case

The ITC instituted Certain Carbon and Alloy Steel, Inv. No. 337-TA-1002 on June 2, 2016, pursuant to a complaint filed by United States Steel Corporation (“U.S. Steel”) alleging a violation of Section 337 based on: (1) a conspiracy to fix prices and control output and export volumes, the threat or effect of which is to restrain or monopolize trade and commerce in the United States; (2) misappropriation and use of trade secrets, the threat or effect of which is to destroy or substantially injure an industry in the United States; and (3) false designation of origin or manufacturer, the threat or effect of which is to destroy or substantially injure an industry in the United States.

On November 14, 2016, the ALJ issued an initial determination, granting Respondents’ motion to terminate U.S. Steel’s antitrust claim under 19 CFR § 210.21 and, in the alternative, under 19 CFR § 210.18.  The ALJ specifically held that U.S. Steel had not alleged predatory pricing in the Complaint and thus did not sufficiently plead an action for antitrust violations upon which relief can be granted.  U.S. Steel (and OUII) filed a petition for review and also requested an oral argument.

On December 19, 2016, the Commission issued a Notice determining to review the ID.  In the Notice, the Commission requested written submissions in connection with its review and tentatively set a date of March 14, 2017, for possible oral argument.

On February 24, the Commission granted U.S. Steel’s request for oral argument and set the proceedings for March 14 at 10 a.m.

Takeaway

After almost a decade without hearing a Section 337 oral argument, the ITC has now granted two in only a few months.  It appears that the current Commission is somewhat receptive of oral argument requests—at least when there are nuanced legal issues involved.  Parties seeking review of an ALJ determination concerning complex factual or legal issues should therefore consider seeking an oral argument before the Commission.

This particular investigation involves claims of antitrust violations, and, given their rarity at the ITC, there is little Commission precedent.  The oral argument will provide the Commission an opportunity to flesh out the issues and hear each other’s thoughts while complying with the Sunshine laws.  Jones Day will continue to monitor this interesting case.

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