Trade Cases

Dismissal of Antitrust Claim in Section 337 Case to be Reconsidered

December 26, 2016

The US International Trade Commission announced last week that it will review an initial determination of Administrative Law Judge Sandra Lord in the US Steel Section 337 case against China.

On November 14, 2016, Lord granted a motion by respondents to terminate US Steel’s antitrust claim in the Section 337 investigation. US Steel Corp. and the Commission Investigative Attorney responded on November 23 with petitions for a review of the termination and requested an opportunity to present oral arguments to the Commission.

The Commission agreed in its announcement on December 19 to review the initial determination to terminate the antitrust claim and requested written responses to the following questions from the parties concerned.

Explain the policies that underlie the injury requirement under Section 337 (a)(1)(A)(iii) (and how it differs from the injury requirement under Section 337(a)(1)(A)(i). Explain what the complainant must prove to satisfy its antitrust claim.
Explain how antitrust injury stranding for private litigants in federal court compares to or differs from the injury requirement under Section 337(a)(1)(A).
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.
Explain whether good cause exists to amend the complaint, presuming it is plead as “antitrust injury.”
Explain any further legal reasoning or argument why the complainant’s antitrust claim should or should not be terminated at the present stage of the investigation.

Note: Section 337 (a)(1) reads as follows:

(a) Unlawful activities; covered industries; definitions

(1) Subject to paragraph (2), the following are unlawful, and when found by the Commission to exist shall be dealt with, in addition to any other provision of law, as provided in this section:

(A) Unfair methods of competition and unfair acts in the importation of articles (other than articles provided for in subparagraphs (B), (C), (D), and (E)) into the United States, or in the sale of such articles by the owner, importer, or consignee, the threat or effect of which is—

(i) to destroy or substantially injure an industry in the United States;

(ii) to prevent the establishment of such an industry; or

(iii) to restrain or monopolize trade and commerce in the United States.

Parties to the investigation must file written submissions on the issues identified by close of business on January 17, 2017. Responsive submissions must be received no later than February 1, 2017

Commission will determine whether to conduct oral argument and announce decision no later than February 24, 2017. Oral argument, if granted, will be held on March 14, 2017.

NOTE: A PDF of the USITC review determination can be accessed here.