Under a pilot program initiated in 2013, the U.S. International Trade Commission (ITC) may designate an investigation for early disposition if it believes that there is a potentially case-dispositive issue warranting the program’s speedy (100-day) treatment. Since the program’s inception, the ITC has employed it sparingly, with only a handful of investigations garnering entry into the program.
In the first two months of 2018, however, the ITC designated two more cases for early disposition (see our posts here and here). This seemed to signal some new momentum for the pilot program. Nevertheless, in a March 26, 2018 order, the Commission has declined to designate Certain Programmable Logic Controllers (PLCs), Components Thereof, and Products Containing Same, Inv. No. 337-TA-1105 for entry into the pilot program. This investigation, as noted in a prior post, is unusual in that it is based on antitrust claims rather than patent infringement claims, which also makes it likely the first antitrust-based case to seek entry into the pilot program.
According to the Commission’s Order, the Respondent requested early disposition designation on three, alternative grounds: (i) whether the Commission has subject-matter jurisdiction; (ii) whether Complainant can satisfy the domestic industry requirement; and/or (iii) whether the Complainant has antitrust standing. Specifically, the Respondent argued that:
the alleged unfair acts relate to a domestic trade dispute without sufficient nexus to imported products, and that [Complainant] lacks antitrust standing. It further contends that [Complainant] has not pled a cognizable domestic industry.
In determining not to use the pilot program, the Commission concluded that “the request, and the response thereto, demonstrate that the issues raised may be too complex to be decided within 100 days of institution.”