On June 24, 2013, the International Trade Commission (“ITC” or the “Commission”) issued a press release stating that the Commission has launched a pilot program “to test whether early rulings on certain dispositive issues in some section 337 investigations could limit unnecessary litigation.”

According to the release, when determining whether or not to institute an investigation, the Commission will identify investigations likely to present a dispositive issue and will direct the presiding Administrative Law Judge (“ALJ”) to expedite discovery, factfinding (including an evidentiary hearing), and determination of the potentially dispositive issue.  The Commission’s goal is for these expedited issues to be determined within 100 days of the institution of the investigation.  The ITC will proceed to the additional merits of the case only if the complainant survives determination of the early dispositive issue.

Examples of potentially dispositive issues include the existence of a domestic industry, importation, or standing.

In an article providing additional details about the pilot program, the Commission explained that specific timeframes for expedited activities will be established, and noted that the 100 day deadline may be subject to a limited extension for good cause.  Once an early Initial Determination (“ID”) is issued, the parties would have five calendar days to file petitions for review, with replies due three business days after any petition has been served.  The effect of an early ID terminating an investigation (such as a finding of no domestic industry) would be to stay the investigation pending Commission action.  Based on any petitions and replies received, the Commission will determine whether to review the early ID within 30 days after issue, and will “normally” complete review within 30 days.  If the early ID is not reviewed, it will become the Commission’s final determination. 

The Commission “recognizes that resolving issues in pilot program investigations will be challenging for the ALJs and the parties.”  However, the Commission also notes that the complainant controls the timing of filing the complaint, and in most instances any necessary information should have been acquired prior to filing the complaint.  In other words, the complainant “should be prepared to prove its case, including such elements as domestic industry, importation, and standing, without extensive discovery on these issues.”

The pilot program is being used in the institution of Certain Products Having Laminated Packaging, Laminated Packaging, and Components Thereof (Inv. No. 337-TA-874), where the Commission directed the ALJ in the notice of institution to “collect facts and issue an early ruling on the domestic industry issue within 100 days of the investigation’s institution.”  See our March 25 and March 29, 2013 post for additional details about this investigation.