16
Mar
By Eric Schweibenz
On March 3, 2017, the International Trade Commission (“Commission”) issued a notice in Certain Carbon and Alloy Steel Products (Inv. No. 337-TA-1002).

By way of background, this investigation was instituted based on a complaint filed by U.S. Steel alleging a violation of section 337 by numerous Chinese steel producers and distributors—as well as certain Hong Kong and U.S. affiliates—by reason of: (1) a conspiracy to fix prices and control output and export volumes, the threat or effect of which is to restrain or monopolize trade and commerce in the U.S.; (2) misappropriation and use of trade secrets, the threat or effect of which is to destroy or substantially injure an industry in the U.S.; and (3) false designation of origin of manufacturer, the threat or effect of which is to destroy or substantially injure an industry in the U.S. See our April 26, 2016, June 7, 2016, August 30, 2016, and February 27, 2017 posts for more details on this investigation.

According to the notice:
On February 24, 2017, the Commission issued a notice indicating that, pursuant to Commission Rule 210.45 (19 C.F.R. § 210.45), an oral argument would be held on March 14, 2017, in connection with the Commission's review of Order No. 38.
The Commission has determined to issue today's request for written submissions from any member of the public (not including the parties to this investigation) and any interested government agencies with respect to questions 1-4 of the December 19,2016, Notice (see 81 FR 94416-17), as reproduced below:
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).
2. 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.
3. 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).
4. 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.
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The Commission has also determined to reschedule the oral argument to April 20, 2017, in order to provide sufficient time for the Commission to receive and review any written submissions and any responses thereto. The Commission will hold the public oral argument in the Commission's Main Hearing Room (Room 101), 500 E Street, SW., Washington DC 20436, beginning at 9:30 a.m. While any member of the public may attend the oral argument, only counsel for the parties to the investigation, including the Office of Unfair Import Investigations, and representatives of interested government agencies may participate and/or argue at the oral argument.
At the oral argument, counsel for each party and representatives of interested government agencies will be given an opportunity to comment in opening remarks for no more than 10 minutes, and the Commissioners may ask questions of those appearing. Details as to the format of the hearing will be provided at a later date. This is a public proceeding; confidential business information (“CBI”) shall not be discussed. A party, however, can draw the Commission’s attention to CBI, if necessary, by pointing to where in the record the information can be found.
The oral argument will be limited in scope to the issues identified in the ID (Order No. 38); the Commission's December 19, 2016 Notice; the present Notice; and any related petition, written submissions, and responses thereto.
After the conclusion of the oral argument, no additional written submissions or arguments will be permitted.
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