By Eric Schweibenz
On September 13, 2012, the International Trade Commission (the “Commission”) issued a notice in Certain Electric Fireplaces, Components Thereof, Manuals for Same, and Products Containing Same, Certain Processes for Manufacturing or Relating to Same, and Certain Products Containing Same (Inv. No. 337-TA-791/826). 

In the notice, the Commission determined to review ALJ David P. Shaw’s Order No. 19 issued on July 13, 2012 denying Respondent Yue Qiu Sheng aka Jason Yue’s (“Yue”) motion for summary determination that Complainants Twin-Star International, Inc. and TS Investment Holding Corp.’s (collectively, “Complainants”) breach of stockholder agreement claim is outside the scope of the investigation.  Specifically, ALJ Shaw found that it was unclear whether the alleged breach of contract could not be shown to constitute or be part of an act of unfair competition, noting that:  (1) the notice of investigation covers acts of copyright violation, trade secret misappropriation, and “unfair competition” prohibited by Section 337; (2) the Commission consolidated Investigation No. 337-TA-791 with Investigation No. 337-TA-826, and in doing so issued a notice of investigation that included Yue as a respondent and specifically directed that the investigation cover “misappropriation of trade secrets, breach of contract, or tortuous interference with contract” prohibited by Section 337; and (3) it has not been shown that breach of contract, including the breach alleged by Complainants, cannot constitute an unfair act cognizable under Section 337.  See our July 25, 2012 post for more details.

According to the notice, the Commission determined to review the ID in part to the extent it finds a violation of Section 337 based on the breach of contract allegations.  The Commission further determined not to review the remainder of the ID.

The parties are requested to brief their positions on the following two questions listed in the notice:
1.  What support exists for the notion that unfair acts or unfair methods of competition under section 337(a)(1)(A), 19 U.S.C. § 1337(a)(1)(A), are limited to “public wrongs” as opposed to “private wrongs.”  Please discuss statutory language, any relevant legislative history, and legal precedent, particularly Tianrui Group Co. v. U.S. Int’l Trade Comm’n, 661 F.3d 1322 (2011).
2.  Please explain whether a breach of contract claim can give rise to a violation of 19 U.S.C. § 1337(a)(1)(A), and discuss any relevant statutory language, legislative history, and legal precedent. 

The notice also requests briefing on the issues of remedy, public interest, and bonding.

Written submissions are due by October 12, 2012, with reply submissions due by November 9, 2012.