Slip Op. 13-136
UNITED STATES COURT OF INTERNATIONAL TRADE
LG ELECTRONICS, INC. AND LG ELECTRONICS USA, INC.,
Plaintiffs,
v. Before: Claire R. Kelly, Judge Consol. Court No. 13-00100 UNITED STATES INTERNATIONAL TRADE COMMISSION,
Defendant.
OPINION AND ORDER
[Order denying plaintiffs’ motion to stay this action.]
Dated: November 06, 2013
Daniel L. Porter, James P. Durling, Christopher Dunn, Ross Bidlingmaier, and Claudia Hartleben, Curtis, Mallet-Prevost, Colt & Mosle LLP, of Washington, D.C., for plaintiffs LG Electronics, Inc. and LG Electronics USA, Inc.
Warren E. Connelly, Jaehong David Park, Jarrod Mark Goldfeder, and Nazakhtar Nikakhtar, Akin, Gump, Strauss, Hauer & Feld, LLP, of Washington, D.C., for consolidated-plaintiff Samsung Electronics Co., Ltd. et al.
Donald Bertrand Cameron, Brady Warfield Mills, Julie Clark Mendoza, Mary Shannon Hodgins, and Rudi Will Planert, Morris, Manning & Martin, LLP, of Washington, D.C., for consolidated plaintiff Electrolux Home Products Corp., N.V. et al.
Karl S. von Schriltz, Attorney-Advisor, U.S. International Trade Commission, of Washington, D.C., for defendant. With him on the brief were Dominic L. Bianchi, General Counsel, Neal J. Reynolds, Assistant General Counsel.
Jack A. Levy, Myles S. Getlan, James R. Cannon Jr., John D. Greenwald, and Thomas M. Beline, Cassidy Levy Kent (USA) LLP, of Washington, D.C., for defendant- intervenor Whirlpool Corporation. Consol. Court No. 13-00100 Page 2
Kelly, Judge: Plaintiffs’ motion to stay this action is denied. Plaintiffs brought this
action pursuant to section 516A of the Tariff Act of 1930, 19 U.S.C. § 1516a (2006)1 and
28 U.S.C. § 1581(c) (2006)2 for judicial review of a final determination of material injury
in the antidumping and countervailing duty investigations of Large Residential Washers
From Korea and Mexico, 78 Fed. Reg. 10,636 (ITC Feb. 14, 2013) (final determination).3
Pls.’ Am. Compl. ¶ 1-2, Aug. 30, 2013, ECF No. 31. Plaintiffs now move for a stay of
proceedings pending final resolution of Samsung Electronics Co. v. United States,
Consol. Court No. 13-00098 (CIT Mar. 13, 2013), and Samsung Electronics Co. v. United
States, Court No. 13-00099 (CIT Mar. 13, 2013) (“Commerce Department Cases”)--
actions commenced to contest the U.S. Department of Commerce’s (Commerce)
antidumping duty and countervailing duty determinations. Pls.’ Mot. for Stay 8, Aug. 30,
2013, ECF No. 32.
In Plaintiffs’ Motion for Stay of Further Proceedings (“Plaintiffs’ Motion for Stay”),
plaintiffs argue that the court should stay this action because the outcome of the
Commerce Department Cases may affect the outcome of this case. In particular, plaintiffs
claim that:
Plaintiffs’ and Samsung’s appeals of the antidumping duty and countervailing duty determinations, if successful, could result in dramatically lower dumping margins and even zero or de minimis dumping margins, and a de minimis countervailing duty margin for Samsung. If the Court ordered
1 Further citations to the Tariff Act of 1930 are to the relevant portions of Title 19 of the U.S. Code, 2006 edition. 2 Further citation to Title 28 of the U.S. code is to the 2006 edition. 3 The views of the International Trade Commission finding material injury to the domestic industry are published in Certain Large Residential Washers From Korea and Mexico, USITC Pub. No. 4378, Inv. Nos. 701-TA-488 and 731-TA-1199-1200 (Feb. 2013) (final). Consol. Court No. 13-00100 Page 3
Commerce to recalculate the margins for either or both parties, and if that recalculation produced de minimis antidumping and countervailing duty margins for either party, then that party’s exports would not properly have been included in the quantity of dumped and subsidized imports from Korea that the ITC considered in making its material injury determination for imports from Korea. Moreover, even if the recalculation did not result in the exclusion of either party but produced dramatically lower margins, the reliability of the record in the ITC’s determination in this case would be subject to significant doubt. Substantially lower margins, and potentially the exclusion of one of the parties, could well cause the ITC to come to a different conclusion from the one it reached in February of 2013 and which is now on appeal before this Court.
Pls.’ Mot. for Stay 2-3.
This motion is opposed by defendant, United States International Trade
Commission (ITC), which claims “Plaintiffs have not made the requisite ‘strong showing
that a stay is necessary and that the disadvantageous effect on others would be clearly
outweighed.’” Opp’n of Def. ITC to Stay 1, Sept. 18, 2013, ECF No. 35 (quoting
Georgetown Steel Co. v. United States, 27 CIT 550, 553, 259 F. Supp. 2d 1344, 1347
(2003) (internal citations omitted)).
In defendant ITC’s Opposition to Plaintiffs’ Motion for Stay (“Defendant’s
Opposition to Stay”), defendant argues that (i) plaintiffs’ motion is highly speculative,
Opp’n of Def. ITC to Stay 4-5, because plaintiffs only argue that Commerce may ultimately
recalculate margins and may conclude that such margins are de minimis or greatly
reduced; and (ii) the ITC would be disadvantaged in its ability to defend its case if the
court issued the stay. Id. at 8-9.
Although plaintiffs reject the notion that any harm or hardship will accrue to
defendant, defendant and defendant-intervenor state that indeed harm will accrue. See Consol. Court No. 13-00100 Page 4
id. at 3. Certainly, any delay to litigation imposes some harm. See Neenah Foundry Co.
v. United States, 24 CIT 202, 205 (2000). Defendant and defendant-intervenor more
specifically contend that because final determinations in the Commerce Department
Cases likely will not be reached for several years, defendant will be disadvantaged in the
defense of its case. Personnel will change. Memories will fade. See Opp’n of Def. ITC
to Stay 8-9. See also Whirlpool’s Opp’n to Stay 7, Sept. 18, 2013, ECF No. 36. Both
defendant and defendant-intervenor argue plaintiffs have the ability to seek a changed
circumstances review should Commerce ultimately change the margins relied upon. See
Opp’n of Def. ITC to Stay 6, 8; Whirlpool’s Opp’n to Stay 1, 3-7.
After defendant and defendant-intervenor filed their oppositions to stay, plaintiffs
filed a Motion for Leave to Reply to Opposition to Motion to Stay (“Plaintiffs’ Motion for
Leave to Reply”) with Plaintiffs’ Reply to Defendant’s and Defendant-Intervenor’s
Opposition to Plaintiffs’ Motion for Stay (“Plaintiffs’ Reply”) attached on September 24,
2013. See Pls.’ Mot. Leave to Reply, Sept. 24, 2013, ECF No. 37; Pls.’ Reply, Sept. 24,
2013, ECF No. 37-2. Both defendant and defendant-intervenor filed oppositions. See
Opp’n of Def. ITC to Pls.’ Mot. Leave to Reply, Oct. 31, 2013, ECF No. 42; Whirlpool’s
Opp’n to LG’s Mot. Leave to Reply, Oct. 31, 2013, ECF No. 43. Plaintiffs’ Motion for
Leave to Reply is denied as it did not raise any issue that could not have been or was not
already addressed in its Motion for Stay. See Crummey v. Social Sec. Admin., 794
F.Supp.2d 46, 62-64 (D.D.C. 2011) (denying plaintiff’s motion to file a surreply for several
Free access — add to your briefcase to read the full text and ask questions with AI
Slip Op. 13-136
UNITED STATES COURT OF INTERNATIONAL TRADE
LG ELECTRONICS, INC. AND LG ELECTRONICS USA, INC.,
Plaintiffs,
v. Before: Claire R. Kelly, Judge Consol. Court No. 13-00100 UNITED STATES INTERNATIONAL TRADE COMMISSION,
Defendant.
OPINION AND ORDER
[Order denying plaintiffs’ motion to stay this action.]
Dated: November 06, 2013
Daniel L. Porter, James P. Durling, Christopher Dunn, Ross Bidlingmaier, and Claudia Hartleben, Curtis, Mallet-Prevost, Colt & Mosle LLP, of Washington, D.C., for plaintiffs LG Electronics, Inc. and LG Electronics USA, Inc.
Warren E. Connelly, Jaehong David Park, Jarrod Mark Goldfeder, and Nazakhtar Nikakhtar, Akin, Gump, Strauss, Hauer & Feld, LLP, of Washington, D.C., for consolidated-plaintiff Samsung Electronics Co., Ltd. et al.
Donald Bertrand Cameron, Brady Warfield Mills, Julie Clark Mendoza, Mary Shannon Hodgins, and Rudi Will Planert, Morris, Manning & Martin, LLP, of Washington, D.C., for consolidated plaintiff Electrolux Home Products Corp., N.V. et al.
Karl S. von Schriltz, Attorney-Advisor, U.S. International Trade Commission, of Washington, D.C., for defendant. With him on the brief were Dominic L. Bianchi, General Counsel, Neal J. Reynolds, Assistant General Counsel.
Jack A. Levy, Myles S. Getlan, James R. Cannon Jr., John D. Greenwald, and Thomas M. Beline, Cassidy Levy Kent (USA) LLP, of Washington, D.C., for defendant- intervenor Whirlpool Corporation. Consol. Court No. 13-00100 Page 2
Kelly, Judge: Plaintiffs’ motion to stay this action is denied. Plaintiffs brought this
action pursuant to section 516A of the Tariff Act of 1930, 19 U.S.C. § 1516a (2006)1 and
28 U.S.C. § 1581(c) (2006)2 for judicial review of a final determination of material injury
in the antidumping and countervailing duty investigations of Large Residential Washers
From Korea and Mexico, 78 Fed. Reg. 10,636 (ITC Feb. 14, 2013) (final determination).3
Pls.’ Am. Compl. ¶ 1-2, Aug. 30, 2013, ECF No. 31. Plaintiffs now move for a stay of
proceedings pending final resolution of Samsung Electronics Co. v. United States,
Consol. Court No. 13-00098 (CIT Mar. 13, 2013), and Samsung Electronics Co. v. United
States, Court No. 13-00099 (CIT Mar. 13, 2013) (“Commerce Department Cases”)--
actions commenced to contest the U.S. Department of Commerce’s (Commerce)
antidumping duty and countervailing duty determinations. Pls.’ Mot. for Stay 8, Aug. 30,
2013, ECF No. 32.
In Plaintiffs’ Motion for Stay of Further Proceedings (“Plaintiffs’ Motion for Stay”),
plaintiffs argue that the court should stay this action because the outcome of the
Commerce Department Cases may affect the outcome of this case. In particular, plaintiffs
claim that:
Plaintiffs’ and Samsung’s appeals of the antidumping duty and countervailing duty determinations, if successful, could result in dramatically lower dumping margins and even zero or de minimis dumping margins, and a de minimis countervailing duty margin for Samsung. If the Court ordered
1 Further citations to the Tariff Act of 1930 are to the relevant portions of Title 19 of the U.S. Code, 2006 edition. 2 Further citation to Title 28 of the U.S. code is to the 2006 edition. 3 The views of the International Trade Commission finding material injury to the domestic industry are published in Certain Large Residential Washers From Korea and Mexico, USITC Pub. No. 4378, Inv. Nos. 701-TA-488 and 731-TA-1199-1200 (Feb. 2013) (final). Consol. Court No. 13-00100 Page 3
Commerce to recalculate the margins for either or both parties, and if that recalculation produced de minimis antidumping and countervailing duty margins for either party, then that party’s exports would not properly have been included in the quantity of dumped and subsidized imports from Korea that the ITC considered in making its material injury determination for imports from Korea. Moreover, even if the recalculation did not result in the exclusion of either party but produced dramatically lower margins, the reliability of the record in the ITC’s determination in this case would be subject to significant doubt. Substantially lower margins, and potentially the exclusion of one of the parties, could well cause the ITC to come to a different conclusion from the one it reached in February of 2013 and which is now on appeal before this Court.
Pls.’ Mot. for Stay 2-3.
This motion is opposed by defendant, United States International Trade
Commission (ITC), which claims “Plaintiffs have not made the requisite ‘strong showing
that a stay is necessary and that the disadvantageous effect on others would be clearly
outweighed.’” Opp’n of Def. ITC to Stay 1, Sept. 18, 2013, ECF No. 35 (quoting
Georgetown Steel Co. v. United States, 27 CIT 550, 553, 259 F. Supp. 2d 1344, 1347
(2003) (internal citations omitted)).
In defendant ITC’s Opposition to Plaintiffs’ Motion for Stay (“Defendant’s
Opposition to Stay”), defendant argues that (i) plaintiffs’ motion is highly speculative,
Opp’n of Def. ITC to Stay 4-5, because plaintiffs only argue that Commerce may ultimately
recalculate margins and may conclude that such margins are de minimis or greatly
reduced; and (ii) the ITC would be disadvantaged in its ability to defend its case if the
court issued the stay. Id. at 8-9.
Although plaintiffs reject the notion that any harm or hardship will accrue to
defendant, defendant and defendant-intervenor state that indeed harm will accrue. See Consol. Court No. 13-00100 Page 4
id. at 3. Certainly, any delay to litigation imposes some harm. See Neenah Foundry Co.
v. United States, 24 CIT 202, 205 (2000). Defendant and defendant-intervenor more
specifically contend that because final determinations in the Commerce Department
Cases likely will not be reached for several years, defendant will be disadvantaged in the
defense of its case. Personnel will change. Memories will fade. See Opp’n of Def. ITC
to Stay 8-9. See also Whirlpool’s Opp’n to Stay 7, Sept. 18, 2013, ECF No. 36. Both
defendant and defendant-intervenor argue plaintiffs have the ability to seek a changed
circumstances review should Commerce ultimately change the margins relied upon. See
Opp’n of Def. ITC to Stay 6, 8; Whirlpool’s Opp’n to Stay 1, 3-7.
After defendant and defendant-intervenor filed their oppositions to stay, plaintiffs
filed a Motion for Leave to Reply to Opposition to Motion to Stay (“Plaintiffs’ Motion for
Leave to Reply”) with Plaintiffs’ Reply to Defendant’s and Defendant-Intervenor’s
Opposition to Plaintiffs’ Motion for Stay (“Plaintiffs’ Reply”) attached on September 24,
2013. See Pls.’ Mot. Leave to Reply, Sept. 24, 2013, ECF No. 37; Pls.’ Reply, Sept. 24,
2013, ECF No. 37-2. Both defendant and defendant-intervenor filed oppositions. See
Opp’n of Def. ITC to Pls.’ Mot. Leave to Reply, Oct. 31, 2013, ECF No. 42; Whirlpool’s
Opp’n to LG’s Mot. Leave to Reply, Oct. 31, 2013, ECF No. 43. Plaintiffs’ Motion for
Leave to Reply is denied as it did not raise any issue that could not have been or was not
already addressed in its Motion for Stay. See Crummey v. Social Sec. Admin., 794
F.Supp.2d 46, 62-64 (D.D.C. 2011) (denying plaintiff’s motion to file a surreply for several
reasons, including that the reply did not expand the scope of issues presented, the local
rules contemplate three memoranda on a given motion and a general disfavor for Consol. Court No. 13-00100 Page 5
surreplies); see also Saha Thai Steel Pipe Co. v. United States, 11 CIT 257, 259 n.5
(1987) (denying defendant’s leave to file a reply because defendant already had sufficient
opportunity to respond to legal issues). Moreover, even if the court considered the
arguments made in Plaintiffs’ Reply the outcome would still be the same.
As has been oft-cited “the power to stay proceedings is incidental to the power
inherent in every court to control the disposition of the causes on its docket with economy
of time and effort for itself, for counsel, and for litigants.” Landis v. North American Co.,
299 U.S. 248, 254 (1936). Whether to stay proceedings is “within the sound discretion of
the trial court.” Cherokee Nation of Okla. v. United States, 124 F.3d 1413, 1416 (Fed.
Cir. 1997). In deciding whether to issue a stay, the court must weigh competing interests.
Landis, 299 U.S. at 254-255. Where the stay might damage another, the movant/moving
party “must make out a clear case of hardship or inequity in being required to go forward.”
Id. at 255.
Plaintiffs’ request for a stay is based upon the potential impact of the court’s
judgment in the related Commerce Department Cases. Plaintiffs claim that if they are
forced to move forward in the instant case and the court orders remand determinations in
the Commerce Department Cases that they will lose the benefit of those remand
determinations. Specifically,
If this Court were to reach its determination on the merits of this appeal and Commerce’s remand determination resulted in the elimination of a party or dramatic reduction of margins, this Court’s determination would be based on an ITC record that was substantially flawed, in that the ITC did not have accurate information as to the extent of dumped or subsidized imports or accurate dumping margins. This Court’s decision could be questioned as Consol. Court No. 13-00100 Page 6
not being based on a complete and accurate record of the ITC’s determination.
Pls.’ Mot. for Stay 6.
The problems for plaintiffs are the speculative nature of their argument and the
duration of the proposed stay. See Georgetown Steel Co., 27 CIT at 553-5; Cherokee
Nation, 124 F.3d at 1416, 1418. Plaintiffs’ own motion explains that either plaintiffs and/or
Samsung would need to be successful in their appeal so that the court would remand and
instruct Commerce to recalculate the margins. Pls.’ Mot. for Stay 2. Further, the
recalculations would need to result in de minimis margins such that one or both of the
parties’ exports would not properly have been included in the quantity of dumped and
subsidized imports the ITC considered in making its material injury determination. Id. at
2-3. Alternatively, the recalculations would have to result in such dramatically lower
margins that would cause the ITC to come to a different conclusion. Id. Plaintiffs have
only alleged the possibility that the court may remand to Commerce, and the possibility
that upon remand Commerce would recalculate either de minimis or dramatically lower
margins, and the possibility that such determinations would be affirmed by the court.
Commerce may not remand, the margins may not be reduced and even if they are
reduced they may not be reduced enough to affect the ITC’s analysis. See GPX Intern.
Tire Corp. v. United States, 893 F. Supp. 2d 1296, 1310 n.15 (CIT 2013) (noting “that the
dumping margin is only one of several factors that the ITC considers in evaluating injury,
and the ITC has not developed a standard methodology for weighing the impact of the
Commerce-calculated dumping margin, making this argument largely speculative.”). It Consol. Court No. 13-00100 Page 7
may be that at some point plaintiffs’ argument will be less speculative, but plaintiffs are
not asking for a stay that would be of limited duration. See, e.g., Diamond Sawblades
Mfrs’ Coalition v. United States, Slip Op. 10-40, 2010 WL 1499568, at * 3 (CIT Apr. 15,
2010) (denying motion to lift the stay because, in part, the stay was “likely to be of limited
duration.”). The litigation concerning Commerce’s antidumping and countervailing duty
orders has only just begun and, if remands are involved, could go on for quite some time.
The court notes that the scheduling order in Consol. Court No. 13-98 provides that briefing
will not be over until at least early March. Order at 1-2, Samsung Electronics Co. v. United
States, No. 13-00098 (CIT Jun. 13, 2013), ECF No. 41. Similarly, briefing in Court No.
13-99 would not be over until mid-January. Order at 1, Samsung Electronics Co., Ltd.,
and Samsung Electronics America, Inc. v. United States, No. 13-00099 (CIT Oct. 1,
2013), ECF No. 29. It would be inappropriate to grant a stay of such a duration based
upon the contingencies set forth by the plaintiffs. See Neenah Foundry Co., 24 CIT at
205.
Plaintiffs fail to show a clear non-speculative nexus between the possible outcome
in the related Commerce Department Cases and the instant case. As such, a stay is not
appropriate at this point.
CONCLUSION AND ORDER
Therefore, upon consideration of Plaintiffs’ Motion for Stay, and responses thereto,
and all papers and proceedings herein, and upon due deliberation, it is hereby: Consol. Court No. 13-00100 Page 8
ORDERED that Plaintiffs’ Motion for Leave to Reply is denied, and it is further
ORDERED that Plaintiffs’ Motion for Stay is denied.
/s/ Claire R. Kelly Claire R. Kelly, Judge
Dated: November 06, 2013 New York, New York ERRATA
LG Electronics, Inc. v. United States Int’l Trade Comm’n, Consol. Ct. No. 13-00100, Slip Op. 13-136, dated Nov. 6, 2013:
Page 2, line 8: change “(CIT Mar. 13, 2013)” to “(CIT filed Mar. 14, 2013)”
Page 2, line 9: change “(CIT Mar. 13, 2013)” to “(CIT filed Mar. 14, 2013)”
December 27, 2013.