On May 29, 2009, ALJ Robert K. Rogers, Jr. issued the public version of Order No. 21 (dated April 16, 2009) in Certain Semiconductor Integrated Circuits and Products Containing Same (Inv. No. 337-TA-665).  In the Order, ALJ Rogers denied (1) complainant Qimonda AG’s (“Qimonda”) motion for summary determination that it meets the economic prong of the domestic industry requirement and (2) respondents LSI Corp., Seagate Technology (US) Holdings Inc., Seagate Technology LLC, Seagate Memory Products (US) Corp., Seagate Technologies International (Singapore), and Seagate (US) LLC’s (collectively “Respondents”) motion for summary determination that Qimonda cannot meet the economic prong of the domestic industry requirement.

The parties disputed the law on the proper timing for determining whether a complainant satisfies the domestic industry requirement.  Qimonda argued that the domestic industry analysis should focus on the time the complaint was filed, while Respondents argued that events taking place after the filing of the complaint could also be considered in the analysis.  This issue is important in this investigation because Qimonda’s domestic activities had decreased after the complaint was filed, due to the company’s bankruptcy.

In addition to the legal dispute, the parties also disputed the facts concerning the nature and extent of Qimonda’s post-bankruptcy domestic activities.  Qimonda stated that it continued to employ some manufacturing personnel for the purpose of “ramping down, stabilizing, and securing its fabs and equipment to put them in a ‘warm idle’ status.”  Further, Qimonda asserted that it continued to engage in sales and customer support operations post-bankruptcy.  Respondents, however, claimed that Qimonda had permanently terminated all manufacturing and research and development activities in the United States, was backing out of its contracts, and was liquidating all of its assets.

ALJ Rogers determined that “while Qimonda’s domestic activities prior to its bankruptcy will be one factor considered in determining whether or not it satisfies the economic prong, Commission precedent establishes that Qimonda’s post-bankruptcy activities will also be a factor in the analysis.”  However, since the parties strongly disputed the nature and extent of Qimonda’s post-bankruptcy activities, there was a genuine issue of material fact that precluded granting either motion for summary determination.  Accordingly, ALJ Rogers denied both motions.