[Federal Register Volume 79, Number 245 (Monday, December 22, 2014)]
[Notices]
[Pages 76368-76370]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-29808]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-883]


Investigations: Terminations, Modifications and Rulings: Certain 
Opaque Polymers

AGENCY: U.S. International Trade Commission.

ACTION: Notice.

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SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission has granted motions by Finnegan, Henderson, Farabow, Garrett 
& Dunner, LLP (``Finnegan'') and [Ouml]m[uuml]r Yarsuvat (``Yarsuvat'') 
to intervene in this investigation for a limited purpose.

[[Page 76369]]

The Commission has further determined to review an initial 
determination (``ID'') (Order No. 27) issued by the presiding 
administrative law judge (``ALJ'') finding respondents Organik Kimya 
San. ve Tic. A.[Scedil] of Istanbul, Turkey; Organik Kimya Netherlands 
B.V. of Rotterdam-Botlek, Netherlands; and Organik Kimya US, Inc., of 
Burlington, Massachusetts (collectively, ``Organik Kimya'') to be in 
default as a sanction for discovery abuse and ordering monetary 
sanctions. Accordingly, the Commission requests written submissions, 
under the schedule set forth below, on certain issues under review and 
on the issues of remedy, public interest, and bonding.

FOR FURTHER INFORMATION CONTACT: Clark S. Cheney, Office of the General 
Counsel, U.S. International Trade Commission, 500 E Street SW., 
Washington, DC 20436, telephone (202) 205-2661. Copies of non-
confidential documents filed in connection with this investigation are 
or will be available for inspection during official business hours 
(8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. 
International Trade Commission, 500 E Street SW., Washington, DC 20436, 
telephone (202) 205-2000. General information concerning the Commission 
may also be obtained by accessing its Internet server at http://www.usitc.gov. The public record for this investigation may be viewed 
on the Commission's electronic docket (EDIS) at http://edis.usitc.gov. 
Hearing-impaired persons are advised that information on this matter 
can be obtained by contacting the Commission TDD terminal on (202) 205-
1810.

SUPPLEMENTARY INFORMATION: The Commission instituted this investigation 
on June 21, 2013, based on a complaint filed by the Dow Chemical 
Company of Midland, Michigan, and by Rohm and Haas Company and Rohm and 
Haas Chemicals LLC, both of Philadelphia, Pennsylvania (collectively, 
``Dow''). 78 FR 37571 (June 21, 2013). The complaint alleged violations 
of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), 
by reason of the importation into the United States, the sale for 
importation, and the sale within the United States after importation of 
certain opaque polymers that infringe certain claims of four United 
States patents: U.S. Patent Nos. 6,020,435; 6,252,004; 7,435,783; and 
7,803,878. The notice of investigation named five respondents: the 
three Organik Kimya respondents noted above; Turk International LLC of 
Aptos, California (``Turk''); and Aalborz Chemical LLC d/b/a All Chem 
of Grand Rapids, Michigan (``Aalborz''). The complaint and notice of 
investigation were amended to add allegations of misappropriation of 
trade secrets. 78 FR 71643 (Nov. 29, 2013). The Office of Unfair Import 
Investigations is not a party to this investigation.
    On December 13, 2013, the Commission determined not to review an 
initial determination (Order No. 11) terminating the investigation with 
respect to U.S. Patent Nos. 7,435,783; and 7,803,878.
    On May 19, 2014, Dow filed a motion for default and other sanctions 
against Organik Kimya for discovery abuse. On May 21, 2014, Organik 
Kimya filed a motion to terminate based upon a consent order 
stipulation. On July 8-9, 2014, the ALJ conducted a hearing on the 
pending motions. On October 20, 2014, the ALJ issued an ID (Order No. 
27) finding Organik Kimya in default, under Commission Rule 210.42(c), 
and ordering monetary sanctions jointly and severally against Organik 
Kimya and its counsel. Organik Kimya is represented by Finnegan, a law 
firm in Washington, DC, and by Yarsuvat, an attorney in Istanbul, 
Turkey. The ALJ denied Organik Kimya's motion to terminate the 
investigation based upon a consent order stipulation.
    On October 28, 2014, Organik Kimya filed a petition for review of 
the sanctions ID. The same day, Finnegan and Yarsuvat filed separate 
motions before the Commission to intervene in the investigation for the 
purpose of contesting joint liability for the monetary sanction. 
Finnegan and Yarsuvat also filed provisional petitions for review of 
the sanctions ID. On November 10, 2014, Finnegan filed a motion for 
leave to file a reply in support of its motion to intervene, which Dow 
opposed. The Commission extended the time for determining whether to 
review the sanctions ID until December 16, 2014.
    On October 30, 2014, Dow filed an unopposed motion to withdraw the 
amended complaint as to the two remaining asserted patents, U.S. Patent 
Nos. 6,020,435 and 6,252,004, and to withdraw all allegations against 
Turk and Aalborz. On November 3, 2014, the ALJ granted the motion in an 
ID (Order No. 29), and on December 1, 2014, the Commission determined 
not to review the ID. Accordingly, the only remaining respondents in 
the investigation are the Organik Kimya respondents. The only remaining 
issues are Dow's claims based on trade secret misappropriation and the 
sanctions ID.
    The Commission has determined to grant the motion by Finnegan for 
leave to file a reply in support of its motion to intervene and has 
considered the reply. The Commission has further determined to grant 
the petitions by Finnegan and Yarsuvat to intervene in this 
investigation for the limited purpose of disputing joint and several 
liability for the monetary sanctions imposed in the sanctions ID. The 
Commission has considered the petitions for review filed by Finnegan 
and Yarsuvat, in addition to the petition for review filed by Organik 
Kimya and the oppositions thereto filed by Dow.
    In light of the intervention by Finnegan and Yarsuvat, the 
Commission has determined to review the sanctions ID. In connection 
with its review, the Commission requests responses only to the 
following questions. The parties are to brief their positions with 
reference to the applicable law and citations to the existing 
evidentiary record. No new evidence will be considered.
    1. Please brief the law governing what types of notice and 
opportunity to present evidence and argument must be provided to 
counsel before imposing sanctions on the counsel based on the types of 
conduct cited on page 112 of the ID. Please also brief how that 
governing law applies to Organik Kimya's counsel in this investigation, 
based on the existing record in this investigation. In answering this 
question, please specifically address whether and when Organik Kimya's 
counsel was or should have been on notice that counsel might be subject 
to sanctions and whether they were given adequate opportunity to 
present evidence and argument on any issue of which they had notice.
    2. Please discuss duties that counsel may have under ITC rules, 
ethics rules, case law, and any other relevant sources with respect to 
the conduct cited on page 112 of the ID, including duties relating to 
the implementation of a litigation hold, a duty to investigate before 
making a representation to the tribunal, a duty to avoid willful 
blindness, or a duty to preserve or take possession of evidence. In 
answering this question, please also address any duties that may arise 
when counsel has received notice of allegations that the counsel's 
client has intentionally spoliated evidence. Please also explain with 
citation to the existing record whether Organik Kimya's counsel 
satisfied any such duties in this investigation.
    Other issues on review are adequately presented in the parties' 
existing filings. The parties are not to brief the sanction finding 
Organik Kimya in default nor Organik Kimya's liability for monetary 
sanctions.

[[Page 76370]]

    In connection with the final disposition of this investigation, the 
Commission may: (1) Issue an order that could result in the exclusion 
of articles manufactured or imported by the respondents; and/or (2) 
issue a cease and desist order that could result in the respondents 
being required to cease and desist from engaging in unfair acts in the 
importation and sale of such articles. Accordingly, the Commission is 
interested in receiving written submissions that address the form of 
remedy, if any, that should be ordered. If a party seeks exclusion of 
an article from entry into the United States for purposes other than 
entry for consumption, the party should so indicate and provide 
information establishing that activities involving other types of entry 
either are adversely affecting it or likely to do so. For background, 
see Certain Devices for Connecting Computers via Telephone Lines, Inv. 
No. 337-TA-360, USITC Pub. No. 2843, Comm'n Op. at 7-10 (December 
1994).
    If the Commission contemplates some form of remedy, it must 
consider the effects of that remedy upon the public interest. The 
factors that the Commission will consider include the effect that the 
exclusion order and/or cease and desists orders would have on (1) the 
public health and welfare, (2) competitive conditions in the U.S. 
economy, (3) U.S. production of articles that are like or directly 
competitive with those that are subject to investigation, and (4) U.S. 
consumers. The Commission is therefore interested in receiving written 
submissions that address the aforementioned public interest factors in 
the context of this investigation.
    If the Commission orders some form of remedy, the U.S. Trade 
Representative, as delegated by the President, has 60 days to approve 
or disapprove the Commission's action. See Presidential Memorandum of 
July 21, 2005, 70 FR 43251 (July 26, 2005). During this period, the 
subject articles would be entitled to enter the United States under 
bond, in an amount determined by the Commission and prescribed by the 
Secretary of the Treasury. The Commission is therefore interested in 
receiving submissions concerning the amount of the bond that should be 
imposed if a remedy is ordered.
    Written Submissions: Parties to the investigation, interested 
government agencies, and any other interested parties are encouraged to 
file written submissions on the issues of remedy, the public interest, 
and bonding. Complainants are requested to submit proposed remedial 
orders for the Commission's consideration. Complainants are further 
requested to state the date upon which the patents expire and the HTSUS 
numbers under which the accused products are imported and to provide 
identification information for all known importers of the subject 
articles.
    Written submissions and proposed remedial orders must be filed no 
later than the close of business on December 30, 2014. Reply 
submissions must be filed no later than the close of business on 
January 7, 2015. No further submissions on these issues will be 
permitted unless otherwise ordered by the Commission.
    Persons filing written submissions must file the original document 
electronically on or before the deadline stated above and submit eight 
true paper copies to the Office of the Secretary pursuant to section 
210.4(f) of the Commission's Rules of Practice and Procedure (19 CFR 
210.4(f)). Submissions should refer to the investigation number (``Inv. 
No. 337-TA-883'') in a prominent place on the cover page and/or the 
first page. (See Handbook for Electronic Filing Procedures, http://www.usitc.gov/secretary/fed_reg_notices/rules/handbook_on_electronic_filing.pdf). Persons with questions regarding 
filing should contact the Secretary (202-205-2000).
    Any person desiring to submit a document to the Commission in 
confidence must request confidential treatment. All such requests 
should be directed to the Secretary to the Commission and must include 
a full statement of the reasons why the Commission should grant such 
treatment. See 19 CFR 201.6. Documents for which confidential treatment 
by the Commission is properly sought will be treated accordingly. A 
redacted nonconfidential version of the document must also be filed 
simultaneously with any confidential filing. All nonconfidential 
written submissions will be available for public inspection at the 
Office of the Secretary and on EDIS.
    The authority for the Commission's determination is contained in 
section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and 
in Part 210 of the Commission's Rules of Practice and Procedure (19 CFR 
part 210).

    Dated: December 16, 2014.

    By order of the Commission.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2014-29808 Filed 12-19-14; 8:45 am]
BILLING CODE 7020-02-P