On Your Mark, Get Ready, Pause — Ready for a 100-Day ITC Proceeding?

March 6, 2018

Often, by the time a company decides to turn to the U.S. International Trade Commission (ITC) for relief from infringing competitors under Section 337, there is a rush to prepare and submit a complaint that complies with the extensive requirements of ITC rules. In those circumstances, however, a company should consider the ITC’s Early Disposition Pilot Program. 

This pilot program, implemented in 2013, tests whether early rulings on certain dispositive issues within 100 days after an investigation begins could resolve an entire dispute. Generally, these expedited proceedings focus on issues that are within a complainant company’s unique ability to prove, such as the economic prong of the domestic industry requirement and standing. Thus, a company that is considering filing an ITC action should fully vet these issues and be prepared to support them promptly with both documentary evidence and witness testimony. 

For example, on Jan. 21, 2018, the ITC issued a Notice of Institution, ordering a presiding administrative law judge (ALJ) to hold an early evidentiary hearing and issue a decision within 100 days as to whether a complainant satisfied the economic prong of the domestic industry requirement. On Jan. 31, the ALJ issued an order, scheduling a hearing for March 22, and allowing a mere nine days the complainant to prepare and submit a highly detailed statement identifying all witnesses and setting forth detailed domestic industry contentions, including a chart describing the type, location and timeframe of and individuals knowledgeable about each expenditure for each domestic industry article. 

Given the demanding schedule, gathering the relevant evidence after filing the complaint would be almost impossible, particularly if the complainant is relying on the activities of its licensee(s) to satisfy the domestic industry requirement. 

Unless a complainant is certain it can avoid a 100-day proceeding by its pleading and evidentiary submissions with the complaint, it must be prepared to meet the stringent deadlines of 100-day proceedings. Collecting relevant information from all sources, including assembling documentary evidence and identifying witnesses (and preparing such a chart as referenced above), before filing the complaint will allow a complainant to be better prepared to navigate the rigorous and unforgiving requirements of a 100-day proceeding.