NEWS

A Tale of Two Appellate Decisions
July 2021

The Court of Appeals for the Federal Circuit issues relatively few substantive decisions within its trade jurisdiction, and a month or more can pass without a single precedential decision in that field. So it was unusual that three precedential trade decisions were issued on consecutive days during the past week – TransPacific Steel LLC v. United States (No. 20-2157) on Tuesday, TR International Trading Co. v. United States (No. 20-1830) on Wednesday, and Stupp Corp. v. United States (No. 20-1857) on Thursday. This note addresses the first two; analysis of the third opinion, while interesting, will have to wait.

 

Considering the first two opinions, TransPacific immediately looks important, while TR International appears narrow and technical. But when considered through the prism of litigation planning for U.S. importers, the latter opinion is at least as important as the former.

 

The importance of TransPacific is evident because it confronts questions of the balance of power among the branches of government. In particular, the Court of Appeals was asked to interpret an expansive statutory delegation of authority to the Executive Branch in light of the U.S. Constitution’s vesting the Legislature with exclusive authority to regulate foreign trade and impose taxes and tariffs. U.S. Const., Art. I, § 8. As we have all learned over the past few years, Section 232 of the Trade Expansion Act of 1962, 19 U.S.C. § 1862, delegated authority to the President to take a range of trade-related actions in order to alleviate a threat to the national security posed by imports. Both the term “national security” and the range of actions that the President may take are broadly defined. But the statute spells out in detail the procedures to be followed and deadlines that “shall” be met, before such actions may be taken. In its simplest terms, the question in TransPacific is whether those deadlines are mandatory.

 

In reaching a negative answer to that question, the majority opinion attempted to avoid potential constitutional issues by carefully parsing the statutory language and legislative intent. The opinion rested, in part, on the meaning of the word “action” as found in the statute – as distinguished from the word “act” – and on the intent of Congress in amending the Act in 1988, where the legislative history made clear the Congressional frustration with Presidential inaction in previous cases. Judge Reyna, in dissent, addressed the constitutional issues directly, by arguing that, in light of the Constitution’s vesting of trade regulatory authority in the Legislative Branch, Congressional delegations of that authority to the Executive Branch should be interpreted narrowly. Relying on this underlying principle, the dissent dismissed the majority’s interpretation of the law as “statutory leapfrog, hopping here and there but ignoring what it has skipped.” Slip Op. at 56.

 

The importance of TransPacific is indisputable in terms of broad issues of the relations among the three branches of government in the regulation of trade. However, the practical significance of the Court’s decision in TR International should not be overlooked. Here, the Court of Appeals broke no new ground, but reaffirmed its consistent position that jurisdiction for judicial review of the trade agencies’ decisions cannot be invoked through the “residual” provision of 28 USC § 1581(i) when direct substantive review options exist.

 

TR International involved a determination by U.S. Customs and Border Protection that the processing of a food additive (citric acid) in India was not sufficient to establish Indian country of origin. Because the country of origin of the primary input was unknown, CBP presumed that it was of Chinese origin – and hence subject to the U.S. anti-dumping and countervailing duty orders (and tariffs) on Citric Acid from China. The importer challenged CBP’s determination both by protest and launching a lawsuit pursuant to the Court of International Trade’s residual jurisdiction under Section 1581(i), claiming, inter alia, that CBP’s actions were ultra vires and procedurally defective. The Court of International Trade dismissed the lawsuit, and the Court of Appeals affirmed.

 

The Court noted that other avenues for judicial review were available and that 1581(i) “‘may not be invoked when jurisdiction under another subsection of [section] 1581 is or could have been available, unless the remedy provided under that other subsection would be manifestly inadequate’.” Slip Op. at 6 (quoting Sunpreme Inc. v. United States, 892 F.3d 1186, 1191 (Fed. Cir. 2018)). Here, the Court noted that the denial of a protest may be subject to judicial review under subsection (a) of Section 1581. Likewise, to the extent that the importer was challenging a finding that the Indian merchandise fell within the “scope” of the Citric Acid orders, the Court of Appeals noted that the Department of Commerce has the authority to interpret the scope of anti-dumping and countervailing duty orders, and that scope rulings are also expressly subject to judicial review under subsection (c) of Section 1581.

 

In light of this well-established precedent, it is important, when preparing a litigation strategy, to identify the correct jurisdictional bases and to remain aware of the applicable deadlines for judicial review. Although the timing issue did not arise in TR International, jurisdictional deadlines cannot be extended, and residual jurisdiction cannot be invoked to elide the expiration of deadlines under the proper jurisdictional bases. In light of the increasingly expansive application of circumvention and scope determinations by Commerce and CBP’s increasingly rigorous application of duties on entries, this lesson is as important as the separation of powers issue handled by the Court in TransPacific.

Some Afterthoughts on the Supreme Court’s NCAA Opinion
June 2021

On June 21, the U.S. Supreme Court issued its opinion in NCAA v. Alston, which continues the exploration of the applicability of federal antitrust to sports – and particularly, the business of collegiate sports.  In this lawsuit, the Supreme Court was asked to consider whether a narrow range of NCAA restrictions on student-athlete compensation violated the Sherman Act’s prohibition of “conspirac[ies] in restraint of trade.”  15 U.S.C. § 1.  Several compensation restrictions were challenged by the student-athletes, but the trial court rejected most of them and found only that limits on certain education-related benefits (such as prohibitions on graduate and vocational school scholarships) ran afoul of the Sherman Act.  Accordingly, it imposed an injunction prohibiting those practices, and the Ninth Circuit affirmed.


The Supreme Court took the case, and unanimously affirmed.  Put succinctly, the Court noted that “this suit involves admitted horizontal price fixing in a market where the defendants exercise monopoly control” (Slip Op. at 14) – later explaining that what was involved here was a buyer-side monopoly (a monopsony), because the NCAA was restraining the purchase of the services of student-athletes.  Of course, the existence of a “monopoly” is not a necessary element for a Section 1 claim, but the NCAA’s concession on that point obviated the exploration of difficult Section 1 questions of market definition and market power – which, as the Court noted, often doom challenges to practices not subject to per se condemnation.

 
The Court explained that the challenged restrictions were properly analyzed under the Rule of Reason, and concluded that the justifications put forth by the NCAA either were non-cognizable under the antitrust laws (Slip Op. at 22-24) or could have been achieved through “substantially less restrictive means”.  Slip Op. at 28-29.  The Court dismissed NCAA’s reliance on NCAA v. Bd. of Regents, 468 U.S. 85 (1984) (“NCAA 1984”), explaining that this case could not be resolved through a “quick look” application of the Rule of Reason, either to condemn or salvage the challenged conduct.  Slip Op. at 17-19 (citing NCAA 1984, 468 U.S. at 110; American Needle, Inc. v. National Football League, 560 U.S. 183, 203 (2010)).

 
In the days since the opinion was issued, there have been predictions that it spells the inevitable end of other NCAA practices that escaped condemnation solely because of the posture of this case.  To a large extent, such prognostications are based on the statements in Justice Kavanaugh’s concurring opinion, in which he “underscore[d] that the NCAA’s remaining compensation rules also raise serious questions under the antitrust laws” (Concurring Op. at 2), and stated that “[t]he NCAA’s business model would be flatly illegal in almost any other industry in America.” Concurring Op. at 3.  This may very well foretell a coming reckoning.


But majority opinion was more cautious, and identified the limits of this decision.  Its caution was articulated in several ways:  First, the Court noted the limited substantive scope of the dispute as presented, in which a number of key, and sometimes difficult, issues required for an antitrust analysis were conceded. These issues include not only market definition and market power (noted above), but also that the NCAA’s restrictions suppressed compensation to the student-athletes, which, in turn, suppressed their participation in the labor market. Slip Op. at 14.


Second, the Court reiterated the caution expressed in previous cases that intrusive judicial intervention in business arrangements is to be avoided.  In doing so, it pointed to the frequently-quoted statement in Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 414 (2004), that the “mistaken condemnations of legitimate business arrangements” through overly expansive application of antitrust rules “are especially costly because they chill the very procompetitive conduct the antitrust laws are designed to protect.”  Slip Op. at 27.  And it endorsed the usual precaution that “[j]udges must be mindful of their limitations – as generalists, as lawyers, and as outsiders trying to understand intricate business relationships.”  Slip Op. at 35.


Third, the Court noted that, when a “quick look” is not suitable to resolve the antitrust issues involved, the very concept of the Rule of Reason generally entails a full exploration of market definition and market power.  Quoting California Dental, it explained that “[t]he whole point of the rule of reason is to furnish ‘an enquiry meet for the case, looking to the circumstances, details, and logic of a restraint’ to ensure that it unduly harms compe­tition before a court declares it unlawful.”  Slip Op. at 25 (quoting California Dental Ass’n v. FTC, 526 U. S. 756, 781 (1999)).  Recognizing this heavy antitrust litigation burden, the Court repeatedly commended the district court for its thorough analysis and for amassing a detailed factual record.

 
And finally, the Court reaffirmed the basic principle, articulated in NCAA 1984, that some “horizontal restraints on competition are essential if the product” – i.e., collegiate football – “is to be available at all”.   Slip Op. at 19 (quoting NCAA 1984, 468 U.S. at 101-02).  Thus, the task required of a court confronting challenges to joint venture restrictions is twofold – (1) to determine the appropriate analytic framework – i.e., the “enquiry meet for the case” – and then (2) to develop a record that, pursuant to that framework, enables a determination of the antitrust significance of the challenged conduct.  No small task.


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Neil Ellis was a member of the U.S. Department of Justice’s team that participated as amicus in the appellate litigation in the 1982 NCAA lawsuit, which led to the Supreme Court’s NCAA 1984 decision.  Please contact us at neil@neilellislaw.com for more information on antitrust issues involving joint ventures among competitors.

At the Intersection of Trade and Antitrust
June 2021
 

In an unusual case that spotlights the tensions between U.S. trade and antitrust laws, JSW Steel (USA), Inc. recently launched a lawsuit against several major U.S. steel manufacturers in federal district court in Houston, TX.  JSW Steel (USA), Inc. et al v. Nucor Corp. et al., No. 21-CV-1842 (S.D. Tex.) (complaint filed June 8, 2021).  JSW’s complaint alleges that the defendants, which include U.S. Steel, Nucor, AK Steel, and Cleveland-Cliffs, engaged in a conspiracy in violation of the U.S. antitrust laws, through conduct that included their involvement in proceedings before the U.S. Department of Commerce.


JSW explains that it relied on imports of semi-finished steel slab to produce its finished products in the United States, but that pattern was disrupted when the U.S. Department of Commerce imposed tariffs in 2018 on imported steel products under Section 232 of the Trade Expansion Act of 1962, 19 U.S.C. § 1862 (the so-called “national security” tariff statute).  JSW alleges that the defendants certified to Commerce that they had abundant supplies of semi-finished steel slabs and a strong economic incentive to sell those products to JSW, and relying on those representations, JSW undertook significant expansion plans for its steel mills in Texas and Ohio.

 
The defendants, however, are not only producers of semi-finished feedstock but also JSW’s competitors in the markets for the downstream finished steel goods, such as plate, pipe, and steel coils.  JSW alleges that when it approached the defendants for the promised supplies of semi-finished slab, they declined, and that the supply disruption has drastically impacted JSW’s production capability and expansion plans in the United States.  JSW alleges that this refusal to deal on the part of the defendants is a coordinated boycott in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1, and it seeks treble damages.


It is well established that coordinated participation in government decision-making, such as administrative proceedings and lobbying, is exempt from U.S. antitrust liability under the First Amendment right to petition the government, even in the furtherance of an anti-competitive strategy.  However, actions taken outside of Commerce’s Section 232 proceedings would not be immune from antitrust challenge.  It will be interesting to see if JSW is able to prove the existence of an illegal conspiracy that engaged in non-immune actions, and to demonstrate a causal connection between those actions and the economic injury it has suffered.


This lawsuit is similar to an action commenced by the steel producer NLMK in January against U.S. Steel in Pennsylvania state court, NLMK Pennsylvania, LLC et al. v. United States Steel Corp., No. GD-21-000719 (Ct. Common Pleas, Allegheny Cty, PA) (complaint filed Jan. 22, 2021).  NLMK alleged that U.S. Steel, in opposing NLMK’s requests for exemptions from Section 232 tariffs, intentionally misrepresented its ability and willingness to supply NLMK with steel slab, and engaged in “anticompetitive abuse of the tariff exclusion process.”  (Complaint at 9) NLMK alleged that US Steel’s conduct comprised the state law tort of unfair competition by interfering with NLMK’s business relations and impairing its ability to compete.


Please contact us at neil@neilellislaw.com for more information on the Section 232 “national security” tariff exemption process and on the antitrust issues raised by coordinated action under Section 232.

WTO Panel Issues Report on U.S. Section 301 Tariffs on $250 Billion of Imports from China   
September 2020

In United States – Tariff Measures on Certain Goods from China, WT/DS543/R (15 Sept 2020), a WTO panel grappled with issues raised by China’s challenge to the United States’ highly-contentious decision to impose tariffs on approximately $250 billion of imports from China, under Section 301 of the Trade Act of 1974.  A link to the panel’s report is here.

The panel first addressed an important preliminary issue, by rejecting the United States’ argument that there was no need for the panel to resolve the issues raised by China because the United States and China had entered into bilateral negotiations to address the underlying trade issues and hence had reached a “mutually satisfactory solution” under Article 12.7 of the DSU. 

On the merits of the dispute, the panel noted that the United States did not attempt to directly refute China’s arguments that the Section 301 tariffs violated the MFN provision of Article I:1 of the GATT and the prohibition against excessive duties under Article II:1(a) and (b).  Rather, the United States claimed that the tariffs were necessary to protect “public morals” and thus were excepted under GATT Article XX(a).  The panel agreed with the United States (and several third parties) that economic concerns can have a “public morals” dimension, which would permit an exception under Article XX.  But the panel concluded that the United States had failed to explain the necessity of the specific measures at issue.  That is, the United States had failed to articulate a “genuine relationship” between the challenged measures (tariffs imposed on a broad range of imports from China) and the public morals objective.

The report includes unusual closing comments in which the panel recognized the larger context of this dispute and the existence of “a range of unprecedented global trade tensions”.  Meanwhile, response to this report has been remarkably muted – perhaps signifying either that the outcome was not a surprise or, more ominously, that the credibility of the WTO as a dispute settlement body has been eroded.  And given that there is currently no method by which a panel report in a dispute involving the United States may be appealed, this panel decision will remain on uncertain ground for the foreseeable future.

Lawsuits Launched to Challenge Section 301 Tariffs on Imports from China
September 2020

In 2018 the Administration launched a series of tariffs targeting a broad range of imports from China, under the authority of Section 301 of the Trade Act of 1974. These tariffs initially targeted $50 billion of goods, but the scope was quickly and dramatically expanded to cover an additional $300 billion.  Over the past few days, several lawsuits have been launched in the U.S. Court of International Trade, challenging the imposition of the expanded tariffs. The lawsuits challenge both the justifications for the expanded tariffs and the process by which the Administration adopted them. If you would like more information, please contact us at neil@neilellislaw.com.

Court of Appeals Issues Important Decision on the Calculation of Anti-Dumping Duties 
September 2020

On September 3, the Court of Appeals for the Federal Circuit issued a decision in Changzhou Trina Solar Energy v. US, regarding the calculation of anti-dumping (AD) duties in cases involving parallel anti-subsidy (or countervailing duty, CVD) determinations. (The decision may be found here.) The Court concluded that where the Department of Commerce found that an export subsidy had been conferred on an exporter by its government, Commerce must adjust the calculation of the parallel AD duty to avoid double counting the economic impact of the subsidy.  Even where the export subsidy finding was based on “adverse facts available” (AFA) because of non-cooperation by the foreign government, the mandatory language of the AD statute (using the word “shall”) requires the adjustment. Commerce cannot refuse to make the statutory adjustment as punishment, in order to induce the foreign government to cooperate in future cases. The Court’s decision is significant in light of the number of cases in which there are parallel AD and export subsidy determinations involving the application of AFA.  For more information, contact us at neil@neilellislaw.com.

Department of Commerce Proposes Major Changes to Antidumping Regulations
August 2020

The U.S. Department of Commerce, International Trade Administration, recently published proposed amendments to several provisions of its regulations governing the procedures in antidumping (AD) and countervailing (anti-subsidy) (CVD) cases. The Department’s notice is found here. These proposed amendments would substantially revise its procedures and administration of new shipper reviews, scope inquiries, and anti-circumvention inquiries. If enacted, these would be the most significant amendments to the Department’s AD/CVD regulations since they were first promulgated in 1997. The Department has opened a period of public comments on the proposed amendments, which will end on September 14, 2020. For more information or assistance, please contact us at neil@neilellislaw.com.