By Eric Schweibenz
On August 29, 2012, Leviton Manufacturing Co., Inc. of Melville, New York (“Leviton”) filed an enforcement complaint in Certain Ground Fault Circuit Interrupters and Products Containing Same (Inv. No. 337-TA-739).  The enforcement complaint alleges that Menard, Inc. of Eau Claire, Wisconsin (“Menard”), Shanghai ELE Manufacturing Corp. of China (“Shanghai ELE”), Shanghai Jia AO Electrical Co., Ltd. of China (“Shanghai Jia AO”), Westside Wholesale Electric & Lighting, Inc., Westside Electric Wholesale, Inc., and Westside Wholesale, Inc.—all of Los Angeles, California and/or Bell, California—(collectively, “Westside”), American Ace Supply Inc. of San Francisco, California (“American Ace”), and American Electric Depot Inc. of Fresh Meadows, New York (“AED”) have violated cease and desist orders (“CDOs”) and/or a general exclusion order (“GEO”) that had been entered in the underlying investigation.

By way of background, the International Trade Commission (the “Commission”) instituted the underlying investigation on October 5, 2010 based on Leviton’s complaint of September 3, 2010.  See our October 7, 2010 post for more details.  The underlying complaint named multiple entities—including Menard, Shanghai ELE, Shanghai Jia AO, AED, Westside, and American Ace—as proposed Respondents.  On December 22, 2010, ALJ Charles E. Bullock issued an Initial Determination (“ID”) finding Menard, Westside, and American Ace in default.  The Commission determined not to review the ID.  On December 20, 2011, ALJ Bullock issued an ID finding no violation of Section 337 by, inter alia, Shanghai ELE, Shanghai Jia AO, and AED.  The Commission determined to review the ID and, on April 27, 2012, the Commission issued a notice finding a violation of Section 337 with respect to U.S. Patent No. 7,737,809 (the ‘809 patent).  The Commission entered CDOs against certain defaulting Respondents including Menard, Westside, and American Ace, as well as a GEO.  See our May 3, 2012 post for more details.

In the enforcement complaint, Leviton alleges that Menard, Westside, and American Ace have violated the CDOs entered against them.  In particular, Leviton accuses Menard of continuing to sell products that infringe the ‘809 patent and of selling products that infringe the ‘809 patent during the Presidential Review Period without posting a bond.  Leviton further accuses Menard of submitting an inaccurate report to the Commission falsely stating that it had ceased selling ground fault circuit interrupters (“GFCIs”) that infringe the ‘809 patent.  Leviton also accuses Westside and American Ace of continuing to sell infringing GFCIs (and of selling infringing GFCIs during the Presidential Review Period without posting a bond).

Leviton also alleges in the enforcement complaint that Shanghai ELE, Shanghai Jia AO, and AED have violated the GEO.  In particular, Leviton alleges that these entities have continued to import products that infringe the ‘809 patent after entry of the GEO and have not posted a bond in accordance with the GEO.

In view of these alleged violations of the CDOs and GEO, Leviton requests that the Commission institute a formal enforcement proceeding pursuant to 19 C.F.R. § 210.75.  With respect to potential remedy, Leviton requests that the Commission modify the CDOs in any manner that would assist in the prevention of the unfair practices that were originally the basis for issuing the orders or assist in the detection of violations of the orders.  Leviton further requests that the Commission impose civil penalties for violation of the CDOs, and if necessary, bring a civil action in an appropriate U.S. district court pursuant to 19 C.F.R. § 210.75(c) and 19 U.S.C. § 1337(f) requesting the imposition of such civil penalties or the issuance of such injunctions as the Commission deems necessary to enforce its orders and protect the public interest.  Leviton also requests that the Commission refer Menard to the U.S. Department of Justice based on its false and/or inaccurate Compliance Report as a possible criminal violation of 18 U.S.C. § 1001.  Lastly, Leviton requests that the Commission impose such other remedies and sanctions as are appropriate and within the Commission’s authority.