The USITC’s investigation in Certain Carbon and Alloy Steel Products, Inv. No. 337-TA-1002 was instituted to investigate alleged violations of Section 337 by the Chinese steel industry based on claims of trade secret misappropriation, false designation of origin, and (atypically for a 337 proceeding) antitrust violations. While the first two claims are proceeding to trial, the presiding administrative law judge (as we previously reported) recently granted respondents’ motion to dismiss the antitrust claims for failing to establish antitrust standing (i.e., plead a cognizable antitrust injury). According to the ALJ, Section 337 investigations are more akin to “disputes between private parties,” and,
[i]n that adversarial setting, the standing requirement that applies in federal antitrust suits ensures that private actions are grounded in harm flowing from anticompetitive practices and do not simply strike at a competitor for the act of competing.
Yesterday, however, the Commission announced that it has determined to review the ALJ’s decision. Opening submissions by the parties and interested government agencies are due on January 17, 2017 and responsive submissions are due on February 1, 2017. And, in a highly unusual move, the Commission has announced in advance that it is considering holding an oral argument on March 14, 2017.
The ITC’s determination on review promises to be its first significant antitrust-based ruling under Section 337 in many years and is certain to call even further attention to this already closely-watched investigation.