80 FR 22548 - Certain Opaque Polymers; Commission Decision Affirming Grant of Default and Sanctions; Finding a Violation of Section 337; Issuing Remedial Orders and Terminating the Investigation

INTERNATIONAL TRADE COMMISSION

Federal Register Volume 80, Issue 77 (April 22, 2015)

Notice is hereby given that the U.S. International Trade Commission affirmed, with modification, an initial determination (``ID'') (Order No. 27) by the presiding Administrative Law Judge (``ALJ'') granting a motion for default and sanctions. The Commission has found a violation of section 337 in this investigation and has issued a limited exclusion order prohibiting importation of certain opaque polymers manufactured using the Complainants' misappropriated trade secrets. The Commission has also issued a cease and desist order directed to one respondent. The Commission has affirmed the assessment and calculation of sanctions including joint and several liability as to U.S. counsel, but has reversed the ID to the extent that it imposed joint and several liability on Turkish counsel. The Commission has thereby terminated the investigation with a finding of violation of section 337.

[Federal Register Volume 80, Number 77 (Wednesday, April 22, 2015)]
[Notices]
[Pages 22548-22549]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-09444]


=======================================================================
-----------------------------------------------------------------------

INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-883]


Certain Opaque Polymers; Commission Decision Affirming Grant of 
Default and Sanctions; Finding a Violation of Section 337; Issuing 
Remedial Orders and Terminating the Investigation

AGENCY: U.S. International Trade Commission.

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission affirmed, with modification, an initial determination 
(``ID'') (Order No. 27) by the presiding Administrative Law Judge 
(``ALJ'') granting a motion for default and sanctions. The Commission 
has found a violation of section 337 in this investigation and has 
issued a limited exclusion order prohibiting importation of certain 
opaque polymers manufactured using the Complainants' misappropriated 
trade secrets. The Commission has also issued a cease and desist order 
directed to one respondent. The Commission has affirmed the assessment 
and calculation of sanctions including joint and several liability as 
to U.S. counsel, but has reversed the ID to the extent that it imposed 
joint and several liability on Turkish counsel. The Commission has 
thereby terminated the investigation with a finding of violation of 
section 337.

FOR FURTHER INFORMATION CONTACT: Sidney A. Rosenzweig, Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street SW., 
Washington, DC 20436, telephone (202) 708-2532. 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. The notice of investigation named five respondents, 
three of whom remain in this investigation: 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''). 78 FR at 
37571; Notice (Dec. 1, 2014) (termination as to two of the five 
originally-named respondents). The complaint and notice of 
investigation were amended to add allegations of misappropriation of 
trade secrets. 78 FR 71643 (Nov. 29, 2013). The allegations of patent 
infringement have been withdrawn from the investigation. See Notice 
(Dec. 13, 2013) (withdrawal of two asserted patents); Notice (Dec. 1, 
2014) (withdrawal of the remaining two asserted patents). The only 
remaining issues are Dow's claims based on trade secret 
misappropriation and sanctions for discovery abuse.
    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) (``the sanctions ID'') 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, Henderson, Farabow, Garrett & Dunner, LLP 
(``Finnegan''), a law firm in

[[Page 22549]]

Washington, DC, and by [Ouml]m[uuml]r 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.
    On December 16, 2014, the Commission granted the motions to 
intervene and determined to review the sanctions ID. The Commission 
notice granting review solicited further briefing on two questions 
concerning sanctions and on remedy, the public interest, and bonding.
    On December 30, 2014, the parties--Dow, Organik Kimya, Finnegan, 
and Yarsuvat--filed opening briefs in response to the Commission 
notice. (Organik Kimya filed two briefs.) On January 7, 2015, the 
parties filed replies. (Dow filed two replies.)
    Having examined the record of this investigation, including the 
ALJ's sanctions ID, as well as the petitions to the Commission and 
their replies, and the briefs to the Commission and their replies, the 
Commission has determined to affirm the ID's finding of Organik Kimya 
in default. See 19 U.S.C. 1337(h); 19 CFR 210.16-.17, 210.33. The 
Commission has determined that the appropriate remedy is the issuance 
of a limited exclusion order prohibiting, for twenty-five years, the 
entry of opaque polymers manufactured using any of the misappropriated 
trade secrets identified in Dow's Disclosure of Misappropriated Trade 
Secrets (Jan. 29, 2014) (listing trade secrets A-ZZ). The Commission 
has also determined to issue a cease and desist order prohibiting 
Organik Kimya U.S., Inc. from, inter alia, importing or selling opaque 
polymers manufactured using any of the aforementioned misappropriated 
trade secrets. The Commission has also determined that the public 
interest factors enumerated in section 337(d) and (f), 19 U.S.C. 
1337(d) & (f), do not preclude the issuance of the limited exclusion 
order or the cease and desist order. The Commission has determined that 
no bonding is required during the period of Presidential review, 19 
U.S.C. 1337(j).
    The Commission has further determined to affirm the ALJ's 
assessment and calculation of attorneys' fees and costs against Organik 
Kimya. The Commission has determined to affirm, with modification, the 
ALJ's determination that Finnegan be held jointly and severally liable 
with Organik Kimya for those sanctions. The Commission has determined 
to reverse the sanctions ID to the extent that it imposed joint and 
several liability on Mr. Yarsuvat. The Commission's reasoning in 
support of these determinations is provided in an accompanying 
Commission opinion. The investigation is terminated.
    Commissioner Schmidtlein dissents, for the reasons to be set forth 
in her separate opinion, as to the Commission's determination on 
sanctions for Organik Kimya's counsel. She otherwise joins the 
Commission's determination as to Organik Kimya's default, the 
Commission remedial orders to be issued, and the liability of Organik 
Kimya for fees and costs.
    The Commission's limited exclusion order and opinion were delivered 
to the President and the United States Trade Representative on the day 
of their issuance.
    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).

    By order of the Commission.

    Issued: April 17, 2015.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2015-09444 Filed 4-21-15; 8:45 am]
 BILLING CODE 7020-02-P