As previously reported, the Commission recently granted U.S. Steel’s request for an oral hearing in Certain Carbon and Alloy Steel, Inv. No. 337-TA-1002.  This was only the second oral argument granted in a Section 337 case in nearly ten years.

In a Notice issued March 3, 2017, the Commission rescheduled the date for oral arguments to April 20, 2017 in order to seek further written submissions from the public.  While the Commission’s earlier Notice requested written submissions from the parties to the investigation, the OUII, and any interested government agencies, the March 3, 2017 Notice was limited to members of the public and interested government agencies.  The Commission is permitting the parties to this investigation and OUII to respond to any written submission submitted by the public or an interested government agency.

The Commission indicated that any submissions should be limited to addressing the following four questions:

  1. Please explain the policies that underlie the injury requirement under Section 337(a)(1)(A)(iii), including an analysis of any relevant statutory language, legislative history, Commission determinations, case law, or other authority. In discussing this question, please also explain how the injury requirement under Section 337(a)(1)(A)(iii) is different from, or relates to, the injury requirement that applies under Section 337(a)(1)(A)(i).
  1. Please explain what Complainant must prove to satisfy the injury requirement under Section 337(a)(1)(A)(iii), where the alleged unfair act in violation of Section 337 is based on a claim alleging a conspiracy to fix prices and control output and export volumes (“antitrust claim”). Please include an analysis of any relevant statutory language, legislative history, Commission determinations, case law, or other authority.
  1. Please explain how “antitrust injury” standing, as required for private litigants in federal district courts asserting antitrust claims, see, e.g., Atl. Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 335 (1990), compares to, or differs from, the injury requirement under Section 337(a)(1)(A). Please include an analysis of any relevant statutory language, legislative history, Commission determinations, case law, or other authority. In discussing this question, please explain the chronology of the adoption of the “antitrust injury” standing requirement in relation to the injury requirement under Section 337(a)(1)(A).
  1. Please explain whether “antitrust injury” standing is, or should be, required for establishing a Section 337 violation based on a claim alleging a conspiracy to fix prices and control output and export volumes as a matter of law and/or policy. Please include an analysis of any relevant statutory language, legislative history, Commission determinations, case law, or other authority.

The Notice sets forth the requirements for any written submission.  Initial submissions must be filed by March 27, 2017 and should not exceed 20 pages.  Responsive submissions are due by April 3, 2017 and are also limited to 20 pages.

Takeaway

Most Section 337 investigations involve claims under 19 U.S.C § 1337(B), which prohibits the importation of products that infringe a U.S. patent.  The antitrust claims at issue in this investigation were brought under Section 337’s general provision—19 U.S.C § 1337(A)—prohibiting “[u]nfair methods of competition and unfair acts in the importation of articles.”  This general provision requires an additional showing that the unfair acts caused an injury to a domestic industry.  19 U.S.C § 1337(A)(i)-(iii).  The briefing requested by the Commission relates to this injury requirement and its interplay with antitrust law.  The oral argument will provide the Commission an opportunity to clarify these nuanced issues in a public forum.

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