By Eric Schweibenz and Lisa Mandrusiak
On December 16, 2014, the International Trade Commission ("the Commission") issued a notice determining to review the final initial determination ("ID") on sanctions in Certain Opaque Polymers (Inv. No. 337-TA-883).

By way of background, the investigation is based on a complaint filed by Rohm and Haas Company, Rohm and Haas Chemicals, and The Dow Chemical Company (collectively, "Dow") alleging violation of Section 337 in the importation into the U.S. and sale of certain opaque polymers that infringe one or more claims of U.S. Patent Nos. 6,020,435; 6,252,004; 7,435,783; and 7,803,878.  See our May 22, 2013 and June 20, 2013 posts for more details on the complaint and notice of investigation, respectively.

ALJ Pender issued Order No. 27 as an ID finding that Respondents Organik Kimya San. Ve Tic. A.S., Organik Kimya Netherlands B.V., Organik Kimya U.S., Inc. ("Organik Kimya") spoliated evidence in this investigation in violation of Commission Rule 210.33(b).  Based on Organik Kimya's bad faith, ALJ Pender sanctioned Organik Kimya by finding them in default with regard to Dow's allegations of trade secret misappropriation.  Additionally, ALJ Pender imposed monetary sanctions against Organik Kimya and its counsel, jointly and severally.  See our December 2, 2014 post for more details.

According to the Notice, the Commission has granted motions by the law firm of Finnegan, Henderson, Farabow, Garrett, & Dunner, LLP ("Finnegan") and attorney Ömür Yarsuvat ("Yarsuvat") to intervene in this investigation for the limited purpose of disputing joint and several liability for the monetary sanctions imposed in the ID.  The Commission further determined to review the ID.

Accordingly, the parties were requested to provide responses to only two questions posed by the Commission.  The first question relates to what types of notice and opportunity to present evidence and argument must be provided before imposing sanctions, and the second relates to duties that counsel may have under ITC rules, ethics rules, case law, or any other relevant sources.

The Commission is also interested in receiving written submissions that address the form of remedy, if any, that should be ordered.  In particular, the Commission requested written submissions addressing the effect that an exclusion order and/or cease and desist orders would have on (1) the public health and welfare, (2) competitive conditions in the U.S. economy, (3) U.S. production of articles that are like or directly competitive with those that are subject to investigation, and (4) U.S. consumers.

Written submissions are due by December 30, 2014, with reply submissions due by January 7, 2015.