Just days after affirming an administrative law judge’s decision to dismiss price fixing claims brought under Section 337 against numerous foreign steel companies for failing to plead “antitrust injury” (see our prior post), the U.S. International Trade Commission (ITC) has issued a notice announcing institution of another investigation involving antitrust claims (Certain Programmable Logic Controllers (PLCs), Components Thereof, and Products Containing Same, Inv. No. 337-TA-1105). The ITC’s notice lists the following claims contained in the complaint as forming the basis for the alleged violation of Section 337 :
(1) a conspiracy to fix resale prices in violation of Section 1 of the Sherman Act; (2) a conspiracy to boycott resellers in violation of Section 1 of the Sherman Act; and (3) monopolization in violation of Section 2 of the Sherman Act.
Given the rarity of antitrust-based Section 337 investigations (which nearly always are based on allegations of patent infringement), having one antitrust-based investigation instituted right on the heels of the dismissal of another such investigation is even more infrequent. However, the institution decision perhaps signals that the ITC is not intending by its dismissal of one case to discourage the filing of Section 337 complaints based on antitrust-based claims. It will be interesting to see how these claims are addressed by the presiding administrative law judge and in what context the recent Commission precedent on the parameters of antitrust-based Section 337 investigations comes into play.