International Trade Commission Takes Steps to Promote Early Adjudication of Dispositive Issues

by Mintz Levin - Copyright & Trademark Matters

On June 24, 2013, the International Trade Commission (“ITC”) announced a pilot program for early adjudication of potentially-dispositive issues in investigations. The pilot program is part of ongoing efforts by the ITC to streamline its Section 337 investigation procedures to reduce the costs for parties participating in investigations and to expedite resolution of investigations.

About the pilot program

The ITC will evaluate investigations at their onset for participation in the pilot program, selecting those investigations that appear likely to present grounds for early disposition. Specifically, the ITC will assign to the pilot program those investigations that, in its view, can be resolved on threshold grounds, such as (A) domestic industry (19 U.S.C. § 1337(a)(3)); (B) importation (19 U.S.C. § 1337(a)(1)(A)); and (C) standing. This selection is made by the Office of Unfair Import Investigations, the ITC Commissioners, and the ITC Office of the General Counsel. Parties seeking one of these expedited hearings can submit written requests to the ITC during the pre-institution phase requesting that their investigation be added to the pilot program.

When an investigation is selected for the pilot program, the ITC will include in its notice of institution an abbreviated schedule for (A) fact finding on the potentially-dispositive issue identified by the ITC; and (B) an initial determination by the assigned Administrative Law Judge (generally within 100 days of institution). The assigned judge may request that the 100-day deadline be extended for good cause. However, given the stated purpose of this expedited procedure, we do not expect that such extensions will be granted liberally. The ITC’s notice states that a finding of no domestic industry will result in the investigation being stayed pending Commission review, and that no other finding will stay the investigation. However, it is likely that a finding of no importation or no standing would similarly stay the investigation.

A party aggrieved by an initial determination rendered in the pilot program may petition the ITC for review within five (5) calendar days of service of the initial determination. Replies to any such petitions must be submitted within three (3) business days of service of the petition. Within thirty (30) days of the issuance of the initial determination, the ITC will decide whether to review it. The ITC’s review, if undertaken, will typically take thirty (30) days.

The procedure defined by the pilot program differs from a motion for summary determination in significant ways: First, in addition to allowing for an expedited evidentiary proceeding, the assigned judge must render a decision within the set deadline; he or she may not postpone the issue for trial, as with summary determinations. Second, if the Commission takes review of the initial determination, the Commission’s review is expected to be completed within 30 days. In contrast, there is no set deadline for the Commission’s review of summary determinations.

An ongoing effort to streamline investigations

The ITC has, in recent months, sought to implement procedures for early resolution of dispositive issues. In so doing, the ITC seeks to save the parties the time and expense of full discovery and litigation of the investigation in its entirety, when the case turns on such a dispositive issue.

In keeping with these goals, in March 2013, the ITC, in the investigation Certain Products Having Laminated Packaging, Laminated Packaging, and Components Thereof, Inv. No. 337-TA-874, ordered an early evidentiary hearing and initial determination on the issue of whether the complainant had met the economic prong of the domestic industry requirement. See 78 Fed. Reg. 19,007 (Mar. 28, 2013). In the event that the initial determination held that requirement unmet, the ITC further directed that a stay would issue, stopping proceedings unless the Commission, upon review, entered a contradictory order. See id. The complainant argued in response that the shortened time to establish this requisite element was an illegal change in procedures without notice and comment.

Administrative Law Judge Theodore Essex, presiding over the investigation, expressed some sympathy for that position, stating his view that “the Commission’s decision to depart from its own rules and regulations without any justification is of questionable legality.” Order No. 3 at 1, fn. 1.

Other Administrative Law Judges presiding over ITC investigations seem more sympathetic to the view that some dispositive issues should be adjudicated early in investigations. Judge Thomas Pender, for example, has sought to expedite resolution of the domestic industry issue before. In Certain Cases for Portable Electronic Devices, Inv. No. 337-TA-861, Judge Pender ordered disclosure of domestic industry contentions ninety-one (91) days after initiation of the investigation, with an evidentiary hearing on the issue two hundred sixty-nine (269) days after initiation, and initial determination of the issue within one year—more than four months before the target date for completion of the investigation. See Certain Cases for Portable Electronic Devices, Inv. No. 337-TA-861, Order No. 3 (November 28, 2012).

Perhaps in response to concerns raised by Judge Essex and the complainant in Certain Products Having Laminated Packaging, Laminated Packaging, and Components Thereof, the ITC admits that its new pilot program is a cautious early step towards promulgation of rules that would alter the schedule of all investigations. This program, though, goes farther than prior efforts to reach dispositive issues early in investigations which, as summarized above, addressed the domestic industry requirement only. The new pilot program encompasses additional dispositive grounds, including standing and importation.


Foreshadowed by the ITC’s actions in Certain Products Having Laminated Packaging, Laminated Packaging, and Components Thereof, the new pilot program continues the trend of the ITC providing judges more flexibility to dispose of cases quickly. The program is not a stark departure from the schedule set by the ITC in that investigation, however. It remains to be seen whether expanding the scope of issues for initial determination beyond the domestic industry requirement will accomplish the ITC’s goal of winnowing out weak cases before the parties expend much resources in the investigations. It is unclear at this point precisely what proportion of investigations will be appropriate for early disposition. The ITC may have difficulty selecting appropriate cases for the pilot program. Selection of inappropriate cases for the program may simply mean additional hearings where the most likely outcome is not disposition of the investigation. Similarly, abundant extensions of the 100-day deadline, or extended time periods for Commission review would reduce the program’s impact. Until the program begins in earnest, one can only speculate as to whether it will accomplish its goals or simply add more tight deadlines to procedures already replete with them.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Mintz Levin - Copyright & Trademark Matters | Attorney Advertising

Written by:

Mintz Levin - Copyright & Trademark Matters

Mintz Levin - Copyright & Trademark Matters on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.