Like many other Federal Agencies and U.S. District Courts, the U.S. International Trade Commission (“ITC”) is open for business during the COVID-19 crisis, but on a limited basis. Modifications to the ITC’s business began on March 17, 2020. On May 14, 2020, the ITC’s COVID-19 Action Plan was extended through July 10, 2020. Although limited discovery is proceeding in many investigations, Washington DC’s “Stay-at-Home” Order and world-wide travel restrictions are likely to delay resolution of pending investigations. This article addresses how the ITC is handling in-person hearings under Section 337 of the Tariff Act of 1930 (“Section 337”) during the COVID-19 crisis. Part II will address modifications to the ITC’s electronic filing system, service of documents and discovery.
In-Person Hearings and Meetings, Generally
Effective March 17, 2020, the ITC Building was closed and all ITC employees began teleworking. At the same time, the ITC postponed all in-person Section 337 hearings for 60 days. On May 14, 2020, the postponement of in-person hearings was extended until July 10, 2020. The ITC’s Administrative Law Judges (“ALJ”) are working to schedule new dates for in-person hearings. The ITC has instructed ALJs that they may otherwise conduct their investigations in accordance with established procedures. Although the Office of Unfair Import Investigations (OUII) remains available to review draft Section 337 complaints during the COVID-19 crisis, potential Complainants should contact OUII to discuss remote procedures and timing for review, instead of scheduling an in-person meeting.
As of March 17, there were 27 pending investigations that were in the late stages of the proceedings – meaning the evidentiary hearing was complete, a successful motion for summary determination had been filed, or the complaint had been withdrawn. These investigations were largely unaffected by the COVID-19 crisis, other than some minor delays, generally unrelated to COVID-19.
As of March 17, only a few pending investigations had evidentiary hearings scheduled for March, April, May or June 2020. In some of these investigations, ALJs have moved the hearing to a later specific date. See, e.g., 337-TA-1166 (ALJ Lord), 337-TA-1170 (ALJ Elliott, in the first instance) and 337-TA-1173 (ALJ McNamara). In other investigations, ALJs have postponed hearings indefinitely. See, e.g., 337-TA-1162 (ALJ Elliott), 337-TA-1167 (Chief ALJ Bullock), 337-TA-1170 (ALJ Elliott, after an initial specific deferral date), 337-TA-1172 (ALJ Shaw), 337-TA-1178 (ALJ Shaw), 337-TA-1179 (Chief ALJ Bullock) and 337-TA-1185 (ALJ Shaw).
For investigations with hearing dates in July, August or September 2020, ALJs have been proactive in extending discovery to account for COVID-19’s impact on discovery and re-setting specific dates for evidentiary hearings in the fall, with the hope that the ITC will be open by then. See, e.g., 337-TA-1175 (ALJ Elliott), 337-TA-1181 (ALJ Lord), 337-TA-1182 (ALJ Cheney), 337-TA-1186 (ALJ Lord) and 337-TA-1190 (ALJ Lord). But ALJ McNamara still has two evidentiary hearings scheduled for the end of July and August – 337-TA-1180 and 337-TA-1187.
Once the ITC opens, the procedures for conducting in-person hearings may change from the general practices in the past. For example, in several investigations, the parties have already raised issues regarding receipt of evidence without a sponsoring witness (see, e.g., 337-TA-1167) and the use of deposition transcripts and witness statements instead of live testimony (see, e.g., 337-TA-1166).
The Future of Section 337 Investigations
The COVID-19 crisis has not had an immediate impact on the number of Section 337 complaints filed at the ITC—six complaints were filed in the two months following announcement of the COVID-19 Action plan, which is consistent with historical averages and with the number of complaints filed in the first three months of 2020. But the long term impact of COVID-19 is difficult to predict. An economic slowdown might cause potential Complainants to delay filing a complaint to save and/or postpone legal costs. An economic slowdown also might decrease the volume of products imported into the United States, thereby reducing the number of infringing imports. On the other hand, as competition with imported products becomes more intense, the need for a company to effectively enforce its Intellectual Property rights will increase. Regardless of the long term impact of COVID-19 on the economy, however, the ITC is demonstrating that it can be flexible and adapt in times of crisis.