ITC Spotlight ' April 2023 Edition

• Jurisdiction: United States,Federal
• Law Firm: Hughes Hubbard & Reed LLP
• Subject Matter: Antitrust/Competition Law, Intellectual Property, International Law, Antitrust, EU Competition , Patent, Trade Secrets, Trademark, International Trade & Investment
• Author: Mr Andrew R. Kopsidas
• Published date: 10 May 2023

The International Trade Commission: An Underutilized Forum

April 27, 2023 - The U.S. International Trade Commission ("ITC") is an independent, nonpartisan, quasi-judicial federal agency created by statute whose essential purpose is to stop imports of goods into the U.S. that are manufactured through unfair methods of competition. It is best known as a high-stakes, fast-paced court where companies go to fight patent infringement cases; but its authority and usefulness to investigate "unfair methods of competition" are far broader.

Advantages of the ITC

Litigants choose the ITC for a variety of reasons. It offers a speedy and predictable schedule'on average, cases go to trial within nine months and the Commission issues its final decision within 16 months. The Commission's jurisdiction is in rem (over the product), not in personam (over the person), which makes it an ideal forum for suing foreign-based competitors who cannot be dragged into federal or state court for lack of personal jurisdiction. Cases are decided by knowledgeable, experienced administrative law judges; and the full range of discovery can be obtained from any foreign-based party without needing to invoke burdensome international discovery mechanisms.

Perhaps most appealing, the ITC offers powerful remedies that are issued almost automatically to victorious complainants.¹ By statute, the ITC may issue exclusion orders and cease & desist orders. Exclusion orders'which come in two varieties, limited and general'instruct U.S. Customs and Border Protection to "exclude[] [covered articles] from entry into the United States for consumption, entry for consumption from a foreign-trade zone, or withdrawal from a warehouse for consumption;" effectively, a ban on the respondent's products entering the country. A limited exclusion order will be directed to articles manufactured by or on behalf of named respondents, while a general exclusion order covers all products that violate section 337, regardless of owner or manufacturer. Lastly, cease & desist orders preclude the respondent and its agents from participating in virtually every type of conduct pertaining to the banned product in the United States.²

Furthermore, the ITC has "broad discretion in selecting the form, scope, and extent of the remedy."³ It has invoked this broader authority many times to tailor remedies to the particular facts of an investigation.

"Unfair Methods of Competition and Unfair Acts"

The ITC's enabling statute, the Tariff Act...