ITC 337 Proceedings

Unfair competition claims at the U.S. International Trade Commission are powerful and specialized in form. They are also on the rise in number. Goodwin is poised to help.

Section 337 of the Tariff Act of 1930 gives the ITC the authority to address alleged unfair competition practices tied to products imported into the U.S. Companies (both foreign and domestic) may utilize Section 337 to request that the ITC prohibit the importation of any articles of manufacture that are tied to “unfair competition” (e.g., through IP infringement, trade secret misappropriation, antitrust violations, false advertising, and other common law torts) so long as they have sufficient U.S. investments in the relevant industry. Today, nearly all products, or at least some of their components, spend a portion of their life cycle abroad and are, therefore, subject to the ITC’s jurisdiction. If the ITC finds that an article should be banned from importation, its exclusion order goes into effect almost immediately and is almost never put on stay during appeal.

This comprehensive remedy can provide a massive competitive edge to a winning complainant. Conversely, it can be fatal for a losing respondent. Every step of the way during this expeditious process, the litigants must be cognizant of what the requested remedy means for their respective businesses. With so much at stake, the ITC is home to some of the highest profile business litigations in the world.

Making the ITC even more challenging to litigants are its fast-paced, specialized procedures. Trials are conducted before Administrative Law Judges, not juries. Each ALJ has his or her own set of Ground Rules that control most aspects of the investigation. Some investigations include written direct testimony. If a witness submits written direct testimony, that witness will start the trial being cross-examined. Additionally, all investigations include critical trial briefing periods. Arguments missed in these briefings will be deemed waived. 

Additionally, the ITC considers the public interest as a whole in determining whether an exclusion order is warranted. A part of the investigation will focus on the scope of direct investment a complainant is making in the U.S. economy.

The ITC’s complexity is further magnified by its accelerated timelines. Discovery deadlines are typically ten calendar days and trials are usually held 8-10 months after the complaint is filed.

Whether the high stakes nature, the unique procedures, the aggressive deadlines, or some combination thereof, securing experienced counsel for 337 cases is crucial. Goodwin’s team is as experienced as they come. We have litigated well over 100 Section 337 cases at the ITC and have a number of first-chair litigators who collectively have tried cases before every Administrative Law Judge. 

Adding further depth to our practice, we have vast experience and closely follow the procedures of U.S. Customs and Border Protection, which enforces the ITC’s remedies. This gives us a unique ability to provide business advice on how a requested remedy will affect a business even before the remedy may issue. It also allows us to provide thorough representation if and when a remedial order does issue.

Goodwin provides comprehensive legal excellence in every representation. In addition to accomplished first chair litigators, we also assure that each team is staffed with specialists in the controlling unfair competition law and experts in the relevant business sector and technology. 

Goodwin’s team complements its legal excellence with communication and transparency. Goodwin is accustomed to the ITC’s pace and assures that all litigation decisions are made with client input. Additionally, Goodwin prides itself on being a valuable business partner with its clients. Goodwin provides consistent strategic advice throughout the life of its matters to assure clients are fully aware of the business ramifications in determining how best to proceed. Although we derive great pride from trial victories, we strive for business outcomes over trial outcomes.