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)

Page Range		22548-22549
FR Document		2015-09444

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 Issue 77 (Wednesday, April 22, 2015)

[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]


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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.

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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

22548 Federal Register / Vol. 80, No. 77 / Wednesday, April 22, 2015 / Notices

DEPARTMENT OF THE INTERIOR above individual. The FIRS is available Internet server at http://www.usitc.gov.
24 hours a day, seven days a week. The public record for this investigation
Bureau of Land Management Replies are provided during normal may be viewed on the Commission’s
[15X L1109AF LLUT980300 business hours. electronic docket (EDIS) at http://
L11500000.PH0000 24–1A] Authority: 43 CFR 1784.4–1. edis.usitc.gov. Hearing-impaired
persons are advised that information on
Utah Resource Advisory Council/ Lance C. Porter, this matter can be obtained by
Recreation Resource Advisory Council Acting Associate State Director. contacting the Commission TDD
Meeting [FR Doc. 2015–09312 Filed 4–21–15; 8:45 am] terminal on (202) 205–1810.
BILLING CODE 4310–DQ–P SUPPLEMENTARY INFORMATION: The
AGENCY: Bureau of Land Management,
Interior. Commission instituted this investigation
on June 21, 2013, based on a complaint
ACTION: Notice. INTERNATIONAL TRADE filed by the Dow Chemical Company of
SUMMARY: In accordance with the COMMISSION Midland, Michigan, and by Rohm and
Federal Land Policy and Management Haas Company and Rohm and Haas
[Investigation No. 337–TA–883]
Act, the Federal Advisory Committee Chemicals LLC, both of Philadelphia,
Act, and the Federal Lands Recreation Certain Opaque Polymers; Pennsylvania (collectively, ‘‘Dow’’). 78
Enhancement Act, the Bureau of Land Commission Decision Affirming Grant FR 37571 (June 21, 2013). The
Management’s (BLM) Utah Resource of Default and Sanctions; Finding a complaint alleged violations of section
Advisory Council (RAC)/Recreation Violation of Section 337; Issuing 337 of the Tariff Act of 1930, as
Resource Advisory Council (RecRAC) Remedial Orders and Terminating the amended (19 U.S.C. 1337), by reason of
will meet as indicated below. Investigation the importation into the United States,
the sale for importation, and the sale
DATES: The BLM-Utah RAC/RecRAC
AGENCY: U.S. International Trade within the United States after
will meet June 23, 2015, from 8:30 a.m.– Commission. importation of certain opaque polymers
5 p.m., and June 24, 2015, from 8:30
ACTION: Notice. that infringe certain claims of four
a.m.–Noon.
United States patents. The notice of
ADDRESSES: The RAC/RecRAC will meet SUMMARY: Notice is hereby given that investigation named five respondents,
at the BLM-Utah State Office, the U.S. International Trade three of whom remain in this
Monument Conference Room (5th Commission affirmed, with investigation: Organik Kimya San. ve
Floor), 440 West 200 South, Salt Lake modification, an initial determination Tic. A.Ş of Istanbul, Turkey; Organik
City, Utah. (‘‘ID’’) (Order No. 27) by the presiding Kimya Netherlands B.V. of Rotterdam-
FOR FURTHER INFORMATION CONTACT: If Administrative Law Judge (‘‘ALJ’’) Botlek, Netherlands; and Organik Kimya
you cannot attend the meeting but wish granting a motion for default and US, Inc., of Burlington, Massachusetts
to listen via teleconference, orally sanctions. The Commission has found a (collectively, ‘‘Organik Kimya’’). 78 FR
present material during the violation of section 337 in this at 37571; Notice (Dec. 1, 2014)
teleconference, or submit written investigation and has issued a limited (termination as to two of the five
material for the RAC/RecRAC, please exclusion order prohibiting importation originally-named respondents). The
notify Sherry Foot, Special Programs of certain opaque polymers complaint and notice of investigation
Coordinator, Bureau of Land manufactured using the Complainants’ were amended to add allegations of
Management, Utah State Office, 440 misappropriated trade secrets. The misappropriation of trade secrets. 78 FR
West 200 South, Suite 500, Salt Lake Commission has also issued a cease and 71643 (Nov. 29, 2013). The allegations
City, Utah 84101; phone (801) 539– desist order directed to one respondent. of patent infringement have been
4195; or, sfoot@blm.gov no later than The Commission has affirmed the withdrawn from the investigation. See
Wednesday, June 17, 2015. assessment and calculation of sanctions Notice (Dec. 13, 2013) (withdrawal of
SUPPLEMENTARY INFORMATION: Planned including joint and several liability as to two asserted patents); Notice (Dec. 1,
agenda topics include the introduction U.S. counsel, but has reversed the ID to 2014) (withdrawal of the remaining two
of new members; an overview of BLM- the extent that it imposed joint and asserted patents). The only remaining
Utah issues; and planning effort several liability on Turkish counsel. The issues are Dow’s claims based on trade
updates. The RecRAC will listen to a Commission has thereby terminated the secret misappropriation and sanctions
presentation on the BLM’s Draft investigation with a finding of violation for discovery abuse.
Connecting with Utah Communities of section 337. On May 19, 2014, Dow filed a motion
[Recreation] Strategy; a review of the FOR FURTHER INFORMATION CONTACT: for default and other sanctions against
Federal Lands Recreation Enhancement Sidney A. Rosenzweig, Office of the Organik Kimya for discovery abuse. On
Act; and presentations regarding General Counsel, U.S. International May 21, 2014, Organik Kimya filed a
proposed fees from the BLM and the Trade Commission, 500 E Street SW., motion to terminate based upon a
U.S. Forest Service. Washington, DC 20436, telephone (202) consent order stipulation. On July 8–9,
A half-hour public comment period 708–2532. Copies of non-confidential 2014, the ALJ conducted a hearing on
will take place on June 23, from 3:00– documents filed in connection with this the pending motions. On October 20,
3:30 p.m. The meeting is open to the investigation are or will be available for 2014, the ALJ issued an ID (Order No.
asabaliauskas on DSK5VPTVN1PROD with NOTICES

public; however, transportation, inspection during official business 27) (‘‘the sanctions ID’’) finding Organik
lodging, and meals are the responsibility hours (8:45 a.m. to 5:15 p.m.) in the Kimya in default, under Commission
of the participating individuals. Office of the Secretary, U.S. Rule 210.42(c), and ordering monetary
Persons who use a International Trade Commission, 500 E sanctions jointly and severally against
telecommunications device for the deaf Street SW., Washington, DC 20436, Organik Kimya and its counsel. Organik
(TDD) may call the Federal Information telephone (202) 205–2000. General Kimya is represented by Finnegan,
Relay Service (FIRS) at 1–800–877–8339 information concerning the Commission Henderson, Farabow, Garrett & Dunner,
to leave a message or question for the may also be obtained by accessing its LLP (‘‘Finnegan’’), a law firm in

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Federal Register / Vol. 80, No. 77 / Wednesday, April 22, 2015 / Notices 22549

Washington, DC, and by Ömür Yarsuvat, assessment and calculation of attorneys’ and (2) issued a cease and desist order
an attorney in Istanbul, Turkey. The ALJ fees and costs against Organik Kimya. directed to the domestic respondent.
denied Organik Kimya’s motion to The Commission has determined to FOR FURTHER INFORMATION CONTACT:
terminate the investigation based upon affirm, with modification, the ALJ’s Amanda Pitcher Fisherow, Office of the
a consent order stipulation. determination that Finnegan be held General Counsel, U.S. International
On October 28, 2014, Organik Kimya jointly and severally liable with Organik Trade Commission, 500 E Street SW.,
filed a petition for review of the Kimya for those sanctions. The Washington, DC 20436, telephone (202)
sanctions ID. The same day, Finnegan Commission has determined to reverse 205–2737. Copies of non-confidential
and Yarsuvat filed separate motions the sanctions ID to the extent that it documents filed in connection with this
before the Commission to intervene in imposed joint and several liability on investigation are or will be available for
the investigation for the purpose of Mr. Yarsuvat. The Commission’s inspection during official business
contesting joint liability for the reasoning in support of these hours (8:45 a.m. to 5:15 p.m.) in the
monetary sanction. Finnegan and determinations is provided in an Office of the Secretary, U.S.
Yarsuvat also filed provisional petitions accompanying Commission opinion. International Trade Commission, 500 E
for review of the sanctions ID. On The investigation is terminated. Street SW., Washington, DC 20436,
November 10, 2014, Finnegan filed a Commissioner Schmidtlein dissents, telephone (202) 205–2000. General
motion for leave to file a reply in for the reasons to be set forth in her information concerning the Commission
support of its motion to intervene, separate opinion, as to the may also be obtained by accessing its
which Dow opposed. Commission’s determination on Internet server (http://www.usitc.gov).
On December 16, 2014, the sanctions for Organik Kimya’s counsel. The public record for this investigation
Commission granted the motions to She otherwise joins the Commission’s may be viewed on the Commission’s
intervene and determined to review the determination as to Organik Kimya’s electronic docket (EDIS) at http://
sanctions ID. The Commission notice default, the Commission remedial edis.usitc.gov. Hearing-impaired
granting review solicited further briefing orders to be issued, and the liability of persons are advised that information on
on two questions concerning sanctions Organik Kimya for fees and costs. this matter can be obtained by
and on remedy, the public interest, and The Commission’s limited exclusion contacting the Commission’s TDD
bonding. order and opinion were delivered to the
On December 30, 2014, the parties— terminal on (202) 205–1810.
President and the United States Trade SUPPLEMENTARY INFORMATION: The
Dow, Organik Kimya, Finnegan, and
Representative on the day of their Commission instituted this investigation
Yarsuvat—filed opening briefs in
issuance. on July 17, 2013, based on a complaint
response to the Commission notice.
The authority for the Commission’s filed by Manitowoc Cranes, LLC of
(Organik Kimya filed two briefs.) On
determination is contained in section Manitowoc, Wisconsin (‘‘Manitowoc’’).
January 7, 2015, the parties filed replies.
337 of the Tariff Act of 1930, as 78 FR 42800–01 (July 17, 2013). The
(Dow filed two replies.)
Having examined the record of this amended (19 U.S.C. 1337), and in Part complaint alleges violations of
investigation, including the ALJ’s 210 of the Commission’s Rules of subsection (a)(1)(B) of section 337 of the
sanctions ID, as well as the petitions to Practice and Procedure (19 CFR part Tariff Act of 1930, as amended, 19
the Commission and their replies, and 210). U.S.C. 1337 (‘‘section 337’’) in the
the briefs to the Commission and their By order of the Commission. importation into the United States, the
replies, the Commission has determined Issued: April 17, 2015. sale for importation, and the sale within
to affirm the ID’s finding of Organik Lisa R. Barton, the United States after importation of
Kimya in default. See 19 U.S.C. 1337(h); Secretary to the Commission. certain crawler cranes and components
19 CFR 210.16-.17, 210.33. The [FR Doc. 2015–09444 Filed 4–21–15; 8:45 am]
thereof, by reason of infringement of
Commission has determined that the U.S. Patent Nos. 7,546,928 (‘‘the ’928
BILLING CODE 7020–02–P
appropriate remedy is the issuance of a patent’’) and 7,967,158 (‘‘the ’158
limited exclusion order prohibiting, for patent’’), and that an industry in the
twenty-five years, the entry of opaque INTERNATIONAL TRADE United States exists or is in the process
polymers manufactured using any of the COMMISSION of being established as required by
misappropriated trade secrets identified subsection (a)(2) of section 337. The
in Dow’s Disclosure of Misappropriated complaint further alleges violations of
[Investigation No. 337–TA–887] subsection (a)(1)(A) of section 337 by
Trade Secrets (Jan. 29, 2014) (listing
trade secrets A–ZZ). The Commission Certain Crawler Cranes and reason of trade secret misappropriation,
has also determined to issue a cease and Components Thereof; Commission’s the threat or effect of which is to destroy
desist order prohibiting Organik Kimya Final Determination; Issuance of a or substantially injure an industry in the
U.S., Inc. from, inter alia, importing or Limited Exclusion Order and Cease United States or to prevent the
selling opaque polymers manufactured and Desist Order; Termination of the establishment of such an industry. The
using any of the aforementioned Investigation Commission’s notice of investigation
misappropriated trade secrets. The named Sany Heavy Industry Co., Ltd. of
Commission has also determined that AGENCY: U.S. International Trade Changsha, China, and Sany America,
the public interest factors enumerated in Commission. Inc. of Peachtree City, Georgia
section 337(d) and (f), 19 U.S.C. 1337(d) (collectively, ‘‘Sany’’) as respondents.
asabaliauskas on DSK5VPTVN1PROD with NOTICES

ACTION: Notice.
& (f), do not preclude the issuance of the The Office of Unfair Import
limited exclusion order or the cease and SUMMARY: Notice is hereby given that Investigations (‘‘OUII’’) was also named
desist order. The Commission has the U.S. International Trade as a party.
determined that no bonding is required Commission has found a violation of On July 11, 2014, the ALJ issued his
during the period of Presidential review, section 337 in this investigation and has final initial determination (‘‘ID’’) finding
19 U.S.C. 1337(j). (1) issued a limited exclusion order a violation of section 337 with respect
The Commission has further prohibiting importation of certain to claims 1, 2, 5, 8, and 23–26 of the
determined to affirm the ALJ’s crawler cranes and components thereof ’928 patent and misappropriation of

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Document Created: 2015-12-16 08:28:21
Document Modified: 2015-12-16 08:28:21

Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Notices
Action		Notice.
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.
FR Citation		80 FR 22548