By Barry Herman
On September 8, 2009 Chief ALJ Paul J. Luckern issued Order No. 11 granting a motion filed by Complainants Red Bull GmbH and Red Bull North America (collectively, “Red Bull”) to amend the complaint and notice of investigation to add six new respondents in Certain Energy Drink Products (Inv. No. 337-TA-678).  Through its motion, Red Bull sought to add the following respondents:  Posh Nosh Imports (USA), Greenwich, Inc., Advantage Food Distributors, Ltd., Wheeler Trading, Inc., Avalon International General Trading, LLC, and Central Supply, Inc. (“Central”).

Central opposed Red Bull’s motion, arguing that Red Bull’s failure to name it in the original complaint was based on a tactical decision by Red Bull to name a small number of respondents, low on the distribution chain, in the hopes they would default.

ALJ Luckern, however, found that Red Bull had met its burden showing that the amendment would not prejudice any respondents and that Red Bull had shown that the addition of the six new respondents was based on new information that was not known prior to institution of the investigation.

The Commission Investigative Staff supported Red Bull’s motion conditioned on an extension of the discovery cutoff for the newly added respondents.

In order to prevent prejudice to the new respondents, ALJ Luckern extended the fact discovery request cutoff and fact discovery cutoff one month each to October 9 and October 23, 2009, respectively.