As my colleagues Brian Johnson and Ian Swan reported in March, dissenting and concurring opinions in Section 337 Investigations, either as footnotes or separate opinions, at the International Trade Commission (ITC) have become more frequent in the last 10 years. However, the data (visualized below) shows that not all Commissioners dissent or concur equally. Some, like Commissioner Rhonda K. Schmidtlein (pictured above), are more vocal than others, which could create changes in ITC outcomes as the makeup of the Commission continually shifts.
Commissioner Rhonda K. Schmidtlein
State: Missouri
Appointed by: President Obama
Term: Apr. 28, 2014 - Dec. 16, 2021
Number of dissents: 179
Commissioner Schmidtlein easily dissents the most frequently, with 179 dissenting or concurring opinions in footnotes or separate opinions in the last 10 years. Most of her dissents relate to the standards for issuing cease-and-desist orders (CDOs), one of the remedies available to ITC complainants. The majority position is that the issuance of a CDO requires the complainant to show that a respondent maintains a commercially significant inventory of the unfairly imported article in the U.S. As she expresses in around a third of her dissenting opinions, however, Commissioner Schmidtlein believes that the presence of any infringing domestic inventory, regardless of the commercial significance, provides a basis to issue a CDO.[1]
Commissioner Jason E. Kearns
State: Colorado
Appointed by: President Trump
Term: Apr. 2, 2018 - Dec. 16, 2024
Number of dissents: 58
Commissioner Kearns is the next most frequent dissenter, often as to the economic prong of the domestic industry requirement for complainants in Section 337 cases. To assert infringement, a complainant needs to show a “significant” investment in plant and equipment, “significant” employment of labor or capital, or “substantial” investment in the protected articles’ exploitation. As there is no statutory definition of a “significant” or “substantial” investment, Commissioner Kearns often disagrees with various aspects of the majority’s analysis of those terms. He has, for instance, noted that he considers it necessary in determining “significance” to compare domestic and foreign activities or investments if domestic industry products benefit from both.[2]
Commissioner Amy A. Karpel
State: Washington
Appointed by: President Trump
Term: Aug. 26, 2019 - June 16, 2023
Number of dissents: 40
Despite being the most recently appointed, Commissioner Karpel has already issued a fair number of dissents. She frequently joins Commissioners Schmidtlein and Kearns in departing from the majority views on the standards to apply in determining what remedies are available to complainants.[3]
[1] See, e.g., Certain Graphics Systems, Components Thereof, and Consumer Products Containing the Same, Inv. No. 337-TA-1044 (Sept. 18, 2018), Comm’n Op. at 70 n.43; Certain Plant-Derived Recombinant Serum Albumins (“rHSA”) and Products Containing Same, 337-TA-1238 (Oct. 11, 2022), Comm’n Op at 66 n.48 (listing further dissenting opinions by Commissioner Schmidtlein on the same issue).
[2] E.g., Certain Electronic Candle Products and Components Thereof, Inv. No. 337-TA-1195 (Sept. 13, 2021), Comm’n Op. at 18 n.22; Certain Vaporizer Cartridges and Components Thereof, Inv. No. 337-TA-1211 (Mar. 1, 2022), Comm’n Op. at 7 n.13.
[3] See, e.g., Certain High-Density Fiber Optic Equipment and Components Thereof, Inv. No. 337-TA-1194 (Aug. 23, 2021), Comm’n Op. at 87 n.50 (joining Commissioner Schmidtlein in dissenting regarding availability of CDOs); Certain Automated Put Walls and Automated Storage and Retrieval Systems, Associated Vehicles, Associated Control Software, and Component Parts Thereof, Inv. No. 337-TA-1293 (Aug. 17, 2023), Comm’n Op. at 29 n.26 (joining Commissioner Kearns in dissenting regarding Commission’s discretion in selecting remedy and listing further dissents on the same issue).
