• ITC Grants Request For Reconsideration And Affirms Reversal Of Initial Determination Granting Unopposed Motion To Amend Notice Of Investigation In Certain Communication Equipment (337-TA-817)
  • April 10, 2012 | Authors: Alexander B. Englehart; Eric W. Schweibenz
  • Law Firm: Oblon, Spivak, McClelland, Maier & Neustadt, L.L.P. - Alexandria Office
  • On March 28, 2012, the International Trade Commission (the “Commission”) issued a notice determining to grant Complainant ChriMar Systems, Inc. d/b/a CMS Technologies’ (“ChriMar”) request for reconsideration and affirm the Commission’s determination to reverse an Initial Determination (“ID”) granting the Commission Investigative Staff’s (“OUII”) unopposed motion to amend the Notice of Investigation in Certain Communication Equipment, Components Thereof, and Products Containing the Same, Including Power Over Ethernet Telephones, Switches, Wireless Access Points, Routers and Other Devices Used in LANs, and Cameras (Inv. No. 337-TA-817).

    By way of background, the Commission instituted this investigation on December 7, 2011 based on ChriMar’s complaint of November 1, 2011.  See our December 10, 2011 post for more details.  On January 3, 2012, ALJ Theodore R. Essex issued an ID granting OUII’s unopposed motion to amend the Notice of Investigation.  Specifically, OUII sought to add, in the “Scope of the Investigation” section, the underlined portion of the following language:  “whether an industry in the United States exists or is in the process of being established as required by subsection (a)(2) of section 337.”  According to the March 28 notice, ALJ Essex explained that there is good cause to amend the Notice of Investigation because “the error was inadvertent and the investigation is still in its early stages.”  The ALJ also determined that the “amendment will not prejudice the public interest or any of the rights of the parties in the investigation.”

    On January 27, 2012, the Commission determined to review and reverse ALJ Essex’s ID and deny the motion to amend the Notice of Investigation.  On February 1, 2012, ChriMar filed a petition for reconsideration requesting that the Commission reconsider its decision.  On February 8, 2012, OUII submitted a response to ChriMar’s request, asserting that it would be appropriate for the Commission to consider the request.

    After considering ChriMar’s request for reconsideration and OUII’s response, the Commission determined to grant ChriMar’s request because ChriMar had not previously had an opportunity to present arguments on the issues presented.  On reconsideration, the Commission determined to affirm its earlier decision.  According to the notice, “the ALJ’s conclusion regarding inadvertence was not supported by the facts, and therefore it is clearly erroneous.”  Moreover, the Commission found that ChriMar’s complaint only includes a description of the relevant domestic industry that “allegedly exists,” and therefore the complaint does not meet the requirements of Commission Rule 210.12(a)(6)(i).  Accordingly, the Commission maintained its reversal of the ID without prejudice to the parties’ right to move to amend the complaint and Notice of Investigation in a timely manner.