[Federal Register Volume 63, Number 72 (Wednesday, April 15, 1998)]
[Notices]
[Pages 18442-18443]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-9949]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-383 Sanctions Proceeding]


Certain Hardware Logic Emulation Systems and Components Thereof; 
Order No. 100: Setting Procedural Schedule

    This sanctions proceeding was instituted, and an Order issued on 
March 6, 1998. The notice of institution was published in the Federal 
Register on March 12, 1998 (63 FR 12113-4). Order No. 99, which issued 
on March 10, ordered each of the parties, no later than March 17, to 
state its positions on certain points. A telephone conference initiated 
by the administrative law judge was held on March 17. The reasons for 
the conference were telephone calls to the attorney-adviser on March 13 
from complainant's counsel and on March 16, from counsel for certain 
respondents and from the staff, requesting that the due date of March 
17 be deferred until April 3 (Tr. at 18). During the telephone 
conference counsel for complainant proposed reply briefs be filed on 
April 10. Counsel for certain respondents and the staff had no 
objection to that proposal (Tr. at 37, 38). The administrative law 
judge thereafter set March 27 for submissions, pursuant to Order No. 99 
and April 3 for the filing of reply submissions, by all parties named 
in the Order of March 6 (Tr. at 46, 47). Also the staff was required to 
report to the administrative law judge on March 27 with respect to any 
negotiations on settlement (Tr. at 47).
    On March 27 responses to Order No. 99 were received from 
complainant and the staff. Also a response was received from 
respondents Mentor Graphics Corporation and Meta Systems and certain of 
their present and former counsel (Brobeck, Phleger & Harrison LLP, 
Robert DeBerardine, and William Anthony) (Mentor). On April 3, replies 
were received from complainant and Mentor.
    Complainant, in its response, represented that complainant, the 
staff, respondents Mentor Graphics Corporation and Meta Systems, and 
the law firm of Brobeck, Phleger & Harrison, LLP (Brobeck law firm) and 
its individual member parties have not been able to reach agreement on 
the precise dollar amount of sanctions to be awarded for any or all 
portions of Order No. 96 in issue and that while the staff has 
suggested a procedure to follow to arrive at an agreed amount for 
sanctions among all parties to this proceeding, and the parties are 
pursuing such procedure to see if agreement is possible, whether 
agreement will be reached as a result of this procedure will probably 
not be known until the latter part of April 1998. It was represented 
that with respect to the issue of making an adequate record for the 
determination of the sanction amount, complainant does not request nor 
believe any formal discovery is necessary, not is any evidentiary 
hearing believed necessary or requested because complainant intends to 
submit detailed affidavits in support of requested sanctions award. 
Complainant proposed that by April 17, 1998, it and

[[Page 18443]]

the staff each provide a submission, with appropriate affidavits, 
setting forth their respective costs, including attorneys fees (hours, 
tasks, rates), incurred (1) to establish conclusively the inaccuracy of 
Reblewski Exhibit A after Respondents' Supplemental Response to 
Interrogatories 77 and 79, dated October 22, 1996, (2) for 
complainant's attempts to read the database tape produced pursuant to 
Order No. 7, and (3) for filing and pursuing Motion No. 383-117 and 
such other relief permitted under that portion of Order No. 96 granting 
Motion No. 383-117. Complainant further proposed that respondents and 
the Brobeck law firm and its individual member parties be directed to 
respond by May 15, 1998, to complainant's and the staff's submissions, 
raising any and all objections to the dollar amounts asserted, 
including objections to the relationship of the costs asserted by 
complainant and the staff to the Commission's monetary sanctions award. 
It also proposed that complainant and the staff then be permitted to 
file a rebuttal submissions by May 26, 1998, and that respondents and 
the Brobeck law firm and its individual member parties be permitted to 
file a sur-rebuttal submission by June 5. It further proposed a one-day 
oral argument for June 18, 1998, if deemed necessary by the 
administrative law judge, after his review of the submissions.
    Mentor, in its response, represented that because complainant has 
yet to provide Mentor with the dollar amount of sanctions sought or the 
basis for the amount sought, Mentor is not currently able to answer the 
question posed by the administrative law judge in Order No. 99 
regarding whether any or all of the sanctions awarded can be agreed 
upon without the need for further proceeding and that Mentor is 
awaiting the information from complainant so that the parties can 
conduct meaningful discussions on this issue. Mentor also proposed that 
complainant be required to submit briefing setting out the amount of 
sanctions demanded and justification for that demand, including full 
disclosure of supporting documentation such as attorney time records 
and backup documentation; that then Mentor assess whether further 
discovery is needed to probe whether the amount demanded was ``actually 
caused by'' and ``specifically related to expenses incurred by'' the 
alleged conduct; that if Mentor determined that additional discovery is 
necessary, it will then serve document requests and deposition notices 
on Quickturn, and after this discovery, Mentor and the staff will 
submit their briefs in response to complainant's original briefing; and 
that if disputed issues of fact remain, an evidentiary hearing should 
be held.
    The staff, in its response, waived any claims for monetary 
sanctions. The staff argued that the Commission's March 6, 1998 Order 
requires the administrative law judge to identify specifically by name 
those counsel who are liable for payment of monetary sanctions, but 
that it does not obligate the administrative law judge to determine any 
allocation of monetary sanction liability among counsel and their 
clients. Accordingly, it argued that respondents' counsel should be 
able to ``stipulate'' the identification of counsel to be held liable 
for payment of any monetary sanctions, and recommended that 
respondents' counsel be ordered to state no later than April 17, 1998 
whether they will submit such a stipulation. The staff argued that 
while all parties are entitled to due process in this proceeding, it is 
presently unaware of any automatic entitlement to formal discovery or a 
live evidentiary hearing on the issues and argued that discovery, a 
hearing, and an opportunity to submit proposed briefs and proposed 
findings of fact would be appropriate only if the substantive issues 
are not resolved by stipulation. The staff represented that it will 
only seek such procedures if the administrative law judge grants the 
private litigants those opportunities. The staff further argued that 
the private parties should be able to provide a submission to the 
administrative law judge on April 17, 1998 indicating whether the 
dollar value of the sanctions has been resolved by agreement.
    Based on the submissions of the parties:
    1. Mentor is ordered no later than April 15, 1998 to identify 
counsel it believes should be held liable for any payment of monetary 
sanctions;
    2. Complainant is ordered to file no later than April 17, 1998 
sufficiently detailed affidavits, including any documentation and 
explanation in any supporting memorandum with authority, to enable this 
administrative law judge to consider all the factors necessary in 
setting the precise dollar amount of sanctions to be awarded pursuant 
to those portions of Order No. 96 adopted by the Commission and shall 
specifically identify those counsel it believes are liable for payment 
of the sanctions to be awarded;
    3. Each of complainant and respondents, identified by the 
Commission in its March 6 Order, should provide to the administrative 
law judge no later than May 5, 1998 a statement whether the dollar 
value of any sanctions imposed by the Commission had been resolved by 
agreement;
    4. Each of respondents, identified by the Commission in its March 6 
Order, and the staff is ordered no later than Tuesday May 12, 1998 to 
respond to complainant's filing, referred to in 1 supra, raising any 
and all objections to the dollar amounts, including objection to the 
relationship of the costs asserted by complainant to the Commission's 
monetary sanctions award. Also they should file then supporting 
memoranda and authorities;
    5. Complainant is ordered no later than May 22, 1998 to file a 
rebuttal submission; and
    6. Each of respondents, identified by the Commission in its March 
6, Order, and the staff is ordered to file a sur-rebuttal by Friday May 
29.
    At this time no further proceedings, in this sanctions proceeding, 
will be ordered. The parties will be notified, at a later date, on 
whether the administrative law judge will provide the parties with an 
opportunity for any additional proceedings.
    On April 7, 1998, each of complainant, Mentor and the staff was 
notified about the issuance of this order. Also this order is being 
published in the Federal Register for notification of any other 
respondents.

    Issued: April 7, 1998.
Paul J. Luckern,
Administrative Law Judge.
[FR Doc. 98-9949 Filed 4-14-98; 8:45 am]
BILLING CODE 7020-02-P