On April 20, 2017, the Commission held an oral argument in connection with its review of an administrative law judge’s decision to grant Chinese steel producers’ motion to dismiss antitrust claims by United States Steel Corporation (USSC), in the Section 337 case Certain Carbon and Alloy Steel Products, Inv. No. 337-TA-1002.
This oral argument before the Commission is unusual in two respects. First, antitrust claims are not often brought in Section 337 cases, and, second, the Commission rarely entertains oral argument in such cases. In this investigation, the complainant alleged antitrust claims, in addition to trade secret and false designation of origin claims. In November 2016, ALJ Dee Lord granted respondents’ motion to dismiss the antitrust claims for failure to establish antitrust standing (i.e. plead a legally sufficient antitrust injury).
The Commission thereafter determined to review the ALJ’s antitrust ruling. The Commission invited public comment on the issues under review, including what a complainant must prove to satisfy the injury requirement of Section 337 based on a claim alleging a conspiracy to fix prices and control output and export volumes, as well as how “antitrust injury” standing, as required for private litigants in federal district courts asserting antitrust claims, compares to or differs from the injury requirement under Section 337. “Please explain whether ‘antitrust injury’ 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,” the ITC Notice states.