Slip Op. 17-1
UNITED STATES COURT OF INTERNATIONAL TRADE
SUNPREME INC.,
Plaintiff,
v.
UNITED STATES, Before: Claire R. Kelly, Judge
Defendant, Court No. 15-00315
and
SOLARWORLD AMERICAS INC.,
Defendant-Intervenor.
OPINION AND ORDER
[Granting Defendant’s motion for a stay of the Judgment entered October 11, 2016.]
Dated: January 5, 2017
Diana Dimitriuc-Quaia and Nancy Aileen Noonan, Arent Fox LLP of Washington, DC, argued for plaintiff. With them on the brief was John Marshall Gurley.
Justin Reinhart Miller, Senior Trial Counsel, International Trade Field Office, Civil Division, U.S. Department of Justice of New York, NY, and Tara Kathleen Hogan, Senior Trial Counsel, Commercial Litigation Branch – Civil Division, U.S. Department of Justice, of Washington, DC, argued for defendant. With them on the brief were Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Jeanne E. Davidson, Director, and Reginald T. Blades, Jr., Assistant Director. Of counsel on the brief was Paula Smith, Senior Attorney, Office of the Assistant Chief Counsel, International Trade Litigation, United States Customs and Border Protection of New York, NY.
Laura El-Sabaawi, Wiley Rein, LLP, of Washington, DC, argued for defendant-intervenor. With her on the brief were Timothy C. Brightbill, Adam Milan Teslik, Cynthia Cristina Galvez, Derick G. Holt, Laura El-Sabaawi, Maureen Elizabeth Thorson, Stephanie Manaker Bell, Tessa Victoria Capeloto, and Usha Neelakantan. Court No. 15-00315 Page 2
Kelly, Judge: This matter is before the court on Defendant’s motion pursuant to
USCIT Rule 62(e) for a stay of the judgment entered October 11, 2016, pending
disposition of Defendant’s appeal. 1 See Mot. Stay J. Pending Appeal, Dec. 9, 2016, ECF
No. 142 (“Stay Mot.”); see also Sunpreme Inc. v. United States, 40 CIT __, Slip Op. 16-
97 (Oct. 11, 2016) (“Sunpreme II”); Judgment, Oct. 11, 2016, ECF No. 135 (“Judgment”).
Defendant argues that the court must stay its judgment in order to avoid potentially
rendering its appeal moot, which would have the effect of denying Defendant an
opportunity to obtain judicial review of the court’s decision and judgment. Stay Mot. 1.
Defendant-Intervenor consents to the stay. Id. Plaintiff opposes Defendant’s motion
contending that Defendant fails to demonstrate any of the elements required to warrant a
stay. See Pl.’s Resp. Opp’n United States’s Mot. Stay J. Pending Appeal 5–17, Dec. 27,
2016, ECF No. 146 (“Pl.’s Resp.”).
For the reasons that follow, the court stays its judgment. The court delayed those
portions of its judgment directing liquidation of Plaintiff’s entries and refunding of cash
deposits collected on Plaintiff’s entries to avoid rendering a potential appeal by Defendant
moot. 2 See Judgment 2. In its motion for judgment on the agency record, Plaintiff did
1 Defendant filed a copy of its notice of appeal together with proof of filing concurrently with the filing of its motion for a stay. See Def.’s Notice of Appeal, Dec. 9, 2016, ECF No. 141; Def.’s Notice of Docketing, Dec. 9 2016, ECF No. 143. On the same day, Defendant-Intervenor also filed a copy of its notice of appeal together with proof of filing. See Def.-Intervenor’s Notice of Appeal, Dec. 9, 2016, ECF No. 144; Def.-Intervenor’s Notice of Docketing, Dec. 9, 2016, ECF No. 145. 2 The court held a teleconference with the parties on January 3, 2017 in which the court explained that the effect of the language of its judgment indicating that liquidation and refund of cash deposits on entries entered or withdrawn from warehouse on or before December 30, 2015 “in accordance with the final court decision in this action” was not to require compliance with those portions of the judgment until all appeals had been exhausted. See Teleconference 00:58–01:11,
(footnote continued) Court No. 15-00315 Page 3
not request an affirmative injunction directing immediate liquidation or refund of cash
deposits nor did it make a showing that such an injunction would be warranted under the
circumstances. See Pl.’s Rule 56.1 Mot. J. Agency R., May 11, 2016, ECF No. 102 (“Pl.’s
Mot. J. Agency R.”); Pl.’s Mem. Supp. Mot. J. Agency R., May 11, 2016, ECF No. 102-1.
Although Defendant has not shown a substantial likelihood of success on the merits, the
overwhelming irreparable harm Defendant would face if the entries entered prior to
December 30, 2015 were to liquidate, together with the public interest and the balance of
the hardships, all favor granting a stay to preserve the availability of judicial review.
BACKGROUND
Plaintiff filed a motion for judgment on the agency record pursuant to USCIT Rule
56.1 challenging United States Customs and Border Protection’s (“Customs” or “CBP”)
determination to require that Plaintiff file its entries as subject to antidumping and
countervailing duty (“AD/CVD”) orders on crystalline silicon photovoltaic cells, whether or
not assembled into modules from the People’s Republic of China (collectively “Orders”).
See Pl.’s Mot. J. Agency R.; see also Crystalline Silicon Photovoltaic Cells, Whether or
Not Assembled Into Modules, from the People’s Republic of China, 77 Fed. Reg. 73,018
(Dep’t Commerce Dec. 7, 2012) (amended final determination of sales at less than fair
value, and antidumping duty order) (“AD Order”) and Crystalline Silicon Photovoltaic
Jan. 3, 2017, ECF No. 147; see also Judgment 2. Both Defendant and Plaintiff indicated that they did not understand that the court’s judgment delayed the requirement of liquidation and refunding of cash deposits with respect to Plaintiff’s entries until after all appeals. See Teleconference 01:50–02:20; 03:57–04:15, Jan. 3, 2017, ECF No. 147. Despite the court’s language delaying the liquidation and refund of cash deposits on Plaintiff’s entries entered prior to December 30, 2015 until “a final decision in this action,” the stay is necessary to prevent deemed liquidation because the court declared Commerce’s suspension of liquidation contrary to law. Court No. 15-00315 Page 4
Cells, Whether or Not Assembled Into Modules, from the People’s Republic of China, 77
Fed. Reg. 73,017 (Dep’t Commerce Dec. 7, 2012) (countervailing duty order) (“CVD
Order”). On October 11, 2016, the court granted Plaintiff’s motion for judgment on the
agency record and entered judgment for Plaintiff. See Sunpreme II, 40 CIT at __, Slip
Op. 16-97 at 32; Judgment.
Specifically, the court set aside CBP’s interpretation of the Orders to the effect that
Plaintiff’s imports are subject to the Orders as contrary to law under Section 706 of the
Administrative Procedure Act, as amended, 5 U.S.C. § 706 (2012). See Sunpreme II, 40
CIT at __, Slip Op. 16-97 at 16. In addition, the court held that CBP lacked authority to
suspend liquidation and order the collection of cash deposits on entries prior to the
initiation of a scope inquiry by the U.S. Department of Commerce (“Commerce”). 3 Id., 40
CIT at __, Slip Op. 16-97 at 28. The court further held that CBP’s continued suspension
of liquidation on entries entered before the initiation of the scope inquiry by Commerce “is
void ab initio, and there is no suspension of liquidation to continue under Commerce’s
regulation” with respect to pre-initiation entries. Id., 40 CIT at __, Slip Op. 16-97 at 32.
Thus, the court ordered that: (1) suspension of liquidation and collection of cash
deposits for estimated AD/CVD duties on Plaintiff’s entries “entered or withdrawn from
3 On July 29, 2016, Commerce issued a final scope determination to the effect that Plaintiff’s entries of solar modules that are the subject of this action are within the scope of the Orders. See Letter from Plaintiff Notifying the Court of Scope Decision Att., Aug. 5, 2016, ECF No. 109; see also AD Order, 77 Fed. Reg. at 73,018, CVD Order, 77 Fed. Reg. at 73,017. The court held that Commerce’s regulation only permits Commerce to impose antidumping cash deposits where the scope of an antidumping or countervailing duty order the unambiguous terms of the Order do not include the merchandise in question until Commerce has acted to resolve the ambiguity. Sunpreme II, 40 CIT at __, Slip Op. 16-97 at 17, 17 n.21 (citing 19 C.F.R. §§ 351.225(l)(1), (3) (2015); AMS Assocs., Inc. v. United States, 737 F.3d 1338, 1344 (Fed. Cir. 2013)). Court No. 15-00315 Page 5
warehouse on or before December 30, 2015 are contrary to law”; (2) CBP shall liquidate
Plaintiff’s entries “entered or withdrawn from warehouse before December 30, 2015 in
accordance with the final court decision in this action”; and (3) CBP shall refund, together
with any interest required by law, cash deposits made by Plaintiff for AD/CVD duties on
its entries “entered or withdrawn from warehouse on or before December 30, 2015 in
accordance with a final court decision in this action.” Judgment 1–2.
STANDARD OF REVIEW
USCIT Rule 62(e) permits the court, in its discretion, to stay the operation or
enforcement of a judgment pending an appeal taken by the United States. See USCIT
R. 62(e). In exercising such discretion, the choice represents “a means of ensuring that
appellate courts can responsibly fulfill their role in the judicial process.” Nken v. Holder,
556 U.S. 418, 427 (2009). However, “a reviewing court may not resolve a conflict
between considered review and effective relief simply by reflexively holding a final order
in abeyance pending review.” Id.
The party requesting the stay under USCIT Rule 62(e) bears the burden of
showing that the circumstances justify an exercise of the court’s discretion based on four
factors:
(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.
NSK Corp. v. United States, 431 Fed. Appx. 910, 911 (Fed. Cir. 2011) (citing Hilton v.
Braunskill, 481 U.S. 770, 776 (1987)). Moreover, each factor need not be given equal Court No. 15-00315 Page 6
weight, and the first two factors are generally considered the most significant. See Id.; cf.
Nken v. Holder, 556 U.S. at 434.
DISCUSSION
I. Irreparable Harm
Defendant argues that it faces immediate irreparable harm if the court declines to
grant a stay because Defendant “will likely be unable to maintain a live controversy over
which the appeals court could exercise jurisdiction.” Stay Mot. 5. Specifically, Defendant
argues that the CBP would be required to liquidate entries without a stay, and that the
government’s challenge to the court’s decision would be moot if the entries were
liquidated or deemed liquidated. Id. at 4 (citing SKF USA, Inc. v. United States, 512 F.3d
1326, 1328 (Fed. Cir. 2008); Zenith Radio Corp. v. United States, 710 F.2d 806, 810 (Fed.
Cir. 1983)). Plaintiff responds that liquidation of Plaintiff’s entries prior to Commerce’s
initiation of a scope inquiry would not irreparably harm Defendant because the
government may prospectively collect duties on entries entered after the initiation of a
scope inquiry by Commerce. Pl.’s Resp. 9. Defendant will suffer irreparable harm without
a stay.
Section 504(d) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1504(d) (2012),4
requires that once suspension of liquidation is removed, CBP shall liquidate the entry
“within 6 months after receiving notice of the removal from the Department of Commerce,
other agency, or a court with jurisdiction over the entry.” 19 U.S.C. § 1504(d). Further, if
CBP does not liquidate such entries within 6 months after receiving notice of removal of
4 Further citations to the Tariff Act of 1930, as amended, are to the relevant provisions of Title 19 of the U.S. Code, 2012 edition. Court No. 15-00315 Page 7
suspension of liquidation, such entries “shall be treated as having been liquidated at the
rate of duty, value, quantity, and amount of duty asserted by the importer of record.” Id.
Once liquidation occurs, a court is powerless to order the assessment of duties at
a different rate. SKF USA, 512 F.3d at 1328 (citing Zenith, 710 F.2d at 810). The effect
of this rule is to render “a court action moot once liquidation occurs,” even deemed
liquidation pursuant to 19 U.S.C. § 1504(d). Id. at 1329 (citing Zenith, 710 F.2d at 810).
Moreover, mootness “does not depend on the [actual] disbursement of funds but rather
on the fact of liquidation itself.” Id.
By ordering that CBP’s suspension of liquidation for estimated AD/CVD duties on
Plaintiff’s entries is contrary to law and that such unlawful suspension of liquidation cannot
be continued under 19 C.F.R. §§ 351.401(l)(1) and (l)(3) (2015), 5 the court removed
suspension of liquidation on Plaintiff’s entries entered prior to December 30, 2015. See
Sunpreme II, 40 CIT at __, Slip Op. 16-97 at 28. As a result, CBP must liquidate Plaintiff’s
pre-initiation entries or those entries will be deemed liquidated. See 19 U.S.C. § 1504(d).
If such liquidation were to occur prior to the disposition of Defendant’s appeal, which is
likely given that the court’s order was entered on October 11, 2016 and Defendant timely
filed its notice of appeal on December 9, 2016, Defendant would have no recourse to
challenge the court’s decision that CBP’s determination to suspend liquidation and collect
cash deposits on Plaintiff’s entries was unlawful. This constitutes precisely the sort of
irreparable harm that a stay in this procedural posture is meant to address. Any challenge
to the court’s decision that CBP’s determinations to collect cash deposits and suspend
5 Further citations to the Code of Federal Regulations are to the 2015 edition. Court No. 15-00315 Page 8
liquidation on pre-initiation entries would be rendered moot if the court’s order is not
stayed.
Plaintiff does not contest that a failure to stay the court’s order with respect to pre-
initiation entries would moot Defendant’s challenge to the court’s decision that CBP
lacked authority to collect cash deposits and suspend liquidation on those pre-initation
entries. See Pl.’s Resp. 9. Rather, Plaintiff suggests that liquidation will not moot
Defendant’s challenge entirely because the government could still pursue prospective
relief in the form of duties on entries entered after Commerce’s initiation of a scope
inquiry. Pl.’s Resp. 9 (citing 19 C.F.R. § 351.225). Specifically, Plaintiff argues that
liquidation of entries is only irreparable injury where a remedy would not be preserved
prospectively on appeal. 6 Pl.’s Resp. 5–6 (citing Nucor Corp. v. United States, 29 CIT
1452, 1462, 412 F. Supp. 2d 1341, 1350 (2005)). However, Plaintiff cites no authority for
the notion that Defendant’s challenge with respect to CBP’s legal basis for collecting cash
deposits and suspending liquidation on pre-initiation entries would not be mooted
because the government could continue to challenge the collection of duties on post-
initiation entries. The fact that Defendant could still collect duties on entries challenged
by Plaintiff post-initiation does not change the fact that Defendant could not challenge the
court’s decision CBP’s determination to collect cash deposits and suspend liquidation on
6 Here, Plaintiff’s challenge is brought pursuant to 28 U.S.C. § 1581(i) (2012). See Confidential Compl. ¶ 3, Dec. 8, 2015, ECF No. 12. The irreparable harm is rendering moot the legal issue of whether CBP lacked authority to collect cash deposits and suspend liquidation, not just potential lost duties due to liquidation of pre-initiation entries. See Stay Mot. 5. Review of the legal issue of whether CBP can impose cash deposits and suspend liquidation on the pre-initiation entries could not be pursued through a challenge to Commerce’s scope determination brought pursuant to 28 U.S.C. § 1581(c) (2012). See Sunpreme Inc. v. United States, 40 CIT __, __, 145 F. Supp. 3d 1271, 1286 (2016). Court No. 15-00315 Page 9
pre-initiation entries is unlawful. Therefore, the government has demonstrated that it
would be irreparably harmed without a stay of the court’s order to preserve this legal issue
on appeal.
II. Likelihood of Success on the Merits
Defendant argues that this case presents serious and substantial questions
concerning the Court’s jurisdictional statute and CBP’s authority to effectively administer
the trade laws at the time of entry. Stay Mot. 7. Defendant further argues that substantial
legal questions are sufficient to determine that the likelihood of success on the merits
criterion is met. Id. (citing E.I. DuPont de Nemours & Co. v. Phillips Petroleum Co., 835
F.2d 277, 278 (Fed. Cir. 1987)). Plaintiff responds that the court must find likelihood of
success on the merits in order to grant a preliminary injunction. Pl.’s Resp. 11. Plaintiff
argues that Defendant has not met this burden because the court has already decided
that the Court has jurisdiction over Plaintiff’s claim under 28 U.S.C. § 1581(i) (2012). 7
Pl.’s Resp. 11–12. Likewise, Plaintiff contends that Defendant has not met its burden of
demonstrating likelihood of success on the merits because the court has already decided
that CBP lacked the authority to require Plaintiff’s entries to be entered as subject to
7 Defendant filed a motion to dismiss arguing that the Court lacked jurisdiction over Plaintiff’s cause of action under 28 U.S.C. § 1581(i) (2012) because Plaintiff has a remedy under 28 U.S.C. § 1581(a) to challenge CBP’s factual application of the scope of the Orders, from which collection of cash deposits and suspension of liquidation follow, after CBP completes its administrative processing by protesting the liquidation and challenging the denial of such protest. Def.’s Mem. Supp. Mot. Dismiss 9, Dec. 18, 2015, ECF No. 40 (“Def.’s Mot. Dismiss”). Defendant further argued that Plaintiff has a remedy under 28 U.S.C. § 1581(c) (2012), but only after Commerce initiates a scope inquiry. Id. at 10. Defendant argued that Plaintiff’s challenge was unripe before Commerce had issued a reviewable scope determination. Id. at 10–11. The court held that the Court has jurisdiction over Plaintiff’s cause of action because Plaintiff has demonstrated that review of CBP’s determination is unavailable under any enumerated basis for court jurisdiction. Sunpreme Inc. v. United States, 40 CIT __, __, 145 F. Supp. 3d 1271, 1283 (2016). Court No. 15-00315 Page 10
AD/CVD duty deposits. Id. at 12–13 (citing Sunpreme II, 40 CIT at __, Slip Op. 16-97 at
32).
In E.I. DuPont, the Court of Appeals for the Federal Circuit suggests that, despite
an absence of likelihood of success on the merits, a substantial legal question will justify
granting a stay if the movant demonstrates irreparable harm, that the public interest favors
granting the stay, and a lack of harm to the non-movant. See E.I. DuPont, 835 F.2d at
278–79. However, the Supreme Court held that it is an abuse of discretion to grant a
preliminary injunction because of difficult legal issues without even considering the
likelihood of success on the merits. Cf. Munaf v. Geren, 553 U.S. 674, 690–91 (2008).
Viewed together, the court must evaluate likelihood of success on the merits, but this
criterion alone may not be determinative of whether or not to grant a stay. See E.I.
DuPont, 835 F.2d at 278–79, Munaf v. Geren, 553 U.S. at 690–91.
After full briefing by both parties on all of the arguments Defendant raises in its
appeal, the court held that the court has jurisdiction over Plaintiff’s claim under 28 U.S.C.
§ 1581(i) (2012) because Plaintiff demonstrated that judicial review under either 28 U.S.C.
§ 1581(a) or 28 U.S.C. § 1581(c) is unavailable and Plaintiff has identified final agency
action subject to challenge that is reviewable under the Administrative Procedure Act.
See Sunpreme Inc. v. United States, 40 CIT __, __, 145 F. Supp. 3d 1271, 1283–94
(2016) (“Sunpreme I”). In a separate decision, the court held that: (1) CBP’s interpretation
of the Orders to the effect that Plaintiff’s imports are subject to the Orders is contrary to
law, Sunpreme II, 40 CIT at __, Slip Op. 16-97 at 16; and (2) CBP’s suspension of
liquidation before the initiation of the scope inquiry by Commerce “is void ab initio, and Court No. 15-00315 Page 11
there is no suspension of liquidation to continue under Commerce’s regulation” with
respect to pre-initiation entries. Id., 40 CIT at __, Slip Op. 16-97 at 32. Therefore, the
court cannot find that Defendant has demonstrated a likelihood of success on the merits.
Thus, this one factor does not favor granting a stay. However, likelihood of success is
only one factor for the court to consider, and the fact that the legal issue is one of first
impression allows for at least the possibility that a reviewing court may disagree.
III. Balance of the Hardships
Defendant argues that a stay of the court’s order will not substantially injure Plaintiff
because financial injury is insufficient hardship to warrant a stay and, in any event, Plaintiff
would be made whole if it were to prevail because any refund would be paid with post-
judgment interest. Stay Mot. 5. Defendant argues that the hardship on the government
of refunding the cash deposits now pending appeal is significant because Plaintiff’s
financial condition makes it unlikely that it would pay any duties owed if Defendant were
to prevail. Id. at 5 n.1. Plaintiff counters that it faces significant financial hardship brought
about by CBP’s actions requiring it to deposit significant sums of AD/CVD duties based
upon CBP’s ultra vires interpretation of the scope language in the Orders. Pl.’s Resp. 14.
Defendant argues that it is unreasonable to presume that failure to refund cash deposits
on pre-initiation entries would not represent a substantial adversity. Id. at 15.
The court recognizes that, if a stay were granted, Plaintiff would be deprived of the
money it posted as cash deposits on entries prior to December 30, 2015 until a final court
decision, including all appeals. However, Plaintiff never alleged that posting cash
deposits on entries prior to December 30, 2015, which had mostly been paid before Court No. 15-00315 Page 12
Plaintiff moved for a temporary restraining order and preliminary injunction, represented
a serious threat to its financial existence. 8 See Pl.’s Appl. TRO and Mot. Prelim. Inj. and
Mem. P. & A. Supp. Thereof Confidential Version 23–24, Dec. 9, 2015, ECF No. 13.
Rather, Plaintiff contended that it was “[t]he inability to continue to sell and deliver solar
modules to customers in the United States means of loss of goodwill, damage to
reputation, and loss of business opportunities” that would constitute irreparable harm. Id.
at 23. A stay will deprive Plaintiff of the cash deposits it paid on pre-initiation entries, but
there is virtually no risk to Plaintiff that it would not be made whole should it prevail. On
the other hand, given Plaintiff’s representations as to its financial position, the hardship
posed by the risk that Plaintiff would be unable to pay any duties owed if Defendant were
to prevail makes clear that the hardship on Defendant of granting the stay outweighs that
on Plaintiff.
IV. Public Interest
Defendant argues that the public interest is served by the government’s retention
of cash deposits on pre-initiation entries pending resolution of an appeal because the
public interest favors protecting the revenue of the United States and in assuring
compliance with the trade laws. Stay Mot. 6. Defendant argues that the revenue should
be protected in a way that will permit consideration of the issues in this appeal. Id.
Defendant also argues that the public interest is served by assuring the availability of
appellate review. Id. at 6–7. Plaintiff counters that enforcement of the judgment does not
8 Moreover, an allegation of financial loss alone, however substantial, which is compensable with monetary damages, is not irreparable harm if such corrective relief will be available at a later date. Sampson v. Murray, 415 U.S. 61, 90 (1974). Court No. 15-00315 Page 13
affect the availability of appellate review. Pl.’s Resp. 16. Additionally, Plaintiff argues
that the public interest cannot be served by allowing Defendant to retain its cash deposits
where CBP acted contrary to law. See id.
As already discussed, Plaintiff’s argument that staying the court’s judgment is
unnecessary to avoid rendering Defendant’s challenge moot is without merit. The
preservation of a right to appellate review unquestionably is in the public interest. The
public interest is not served by rendering a trial court a court of last resort where the
judicial system permits further judicial review. See, e.g., 28 U.S.C. § 1295(a)(5) (2012)
(conferring appellate jurisdiction to the Court of Appeals for the Federal Circuit over
Defendant’s claim). Particularly where an importer can be made whole with interest in
the event it prevails on appeal, the overwhelming systemic public interest favoring
appellate review outweighs the public interest in protecting importers from being
subjected to duties collected beyond an agency’s authority.
V. Conclusion
Despite the fact that Defendant has failed to demonstrate a strong likelihood of
success on the merits, the overwhelming irreparable harm posed by the probability that
Defendant’s appeal would be rendered moot by a failure to stay the court’s order, the
balance of the hardships tipping in favor of Defendant, and the strong public interest in
ensuring appellate review of this important legal issue of first impression favor staying the
court’s order. See DuPont, 835 F.2d at 278–79, Munaf v. Geren, 553 U.S. at 690–91. In
these circumstances, the other factors favoring granting a stay outweigh Defendant failure
to demonstrate a substantial likelihood that it would succeed on the merits. Court No. 15-00315 Page 14
CONCLUSION
Therefore, upon consideration of Defendant’s motion for a stay, all papers and
proceedings in this action, and upon due deliberation, it is hereby
ORDERED that Defendant’s motion is granted; and it is further
ORDERED that the Judgment, Oct. 11, 2016, ECF No. 135, is stayed until the
entry of a final and conclusive judgment in this action, including all appeals.
/s/ Claire R. Kelly Claire R. Kelly. Judge
Dated: January 5, 2017 New York, New York