CIT Stops ITC From Releasing Amsted Rail Co.'s BPI in Tiff Over Counsel Move
The Court of International Trade on Oct. 18 stopped the International Trade Commission from disclosing the business proprietary information (BPI) of a group of plaintiffs led by Amsted Rail Co. Judge Gary Katzmann granted the plaintiffs' move for a temporary restraining order in an action concerning whether the ITC violated the Administrative Procedure Act and the plaintiffs' 5th Amendment due process rights by giving its former lawyer access to its BPI in his new role as counsel to parties with adverse interests to ARC (Amsted Rail Co. v. United States International Trade Commission, CIT #22-00307).
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The case concerns a past ITC injury investigation on freight rail couplers and parts thereof from China and a present injury investigation on the same goods from China and Mexico. ARC is a U.S. producer and importer of the subject merchandise, and is affiliated with a maquiladora factory, ASF-K de Mexico -- the only Mexican manufacturer of the freight rail coupler systems and another plaintiff in the case.
ARC originally employed Wiley Rein, where Daniel Pickard worked as a partner, to represent it. At the time, Pickard filed an antidumping and countervailing duty petition on behalf of ARC and McConway and Torley (M&T) to start the prior injury investigation. ARC subsequently withdrew from the petition, leaving Pickard to carry on with M&T and a labor union that replaced it. An administrative protective order (APO) in this investigation was then issued.
In the prior injury investigation, the ITC unanimously voted that the U.S. industry was not materially harmed by imports of the subject merchandise from China. During the investigation, though, Pickard had moved from Wiley Rein to Buchanan Ingersoll. The ITC issued its injury determination in June, when the APO only covered Pickard and two non-attorneys at Wiley Rein, one of which moved with Pickard to Buchanan. After the determination, in July 2022, Buchanan then filed an amendment to the APO adding seven attorneys and two non-attorney personnel from Buchanan. In September, the firm then said it destroyed materials covered by the APO.
Days later, Buchanan filed a petition to start another injury investigation on the freight rail couplers, this time adding Mexico, concurrently filing an APO application covering the same Buchanan lawyers and staff made party to the previous APO. M&T and the union stand as the two petitioners. These Buchanan lawyers, including Pickard, who represented ARC, included Mexican imports knowing that the only Mexican imports came from ARC's affiliate. Describing this as a "betrayal," ARC originally took to the ITC to argue that Pickard and Buchanan should be disqualified from the proceeding and booted from the APO (see 2210120062). The company filed suit at CIT to argue that the ITC's decision to give BPI access to Buchanan violated the APA and its 5th Amendment rights (see 2210170084).
Under the temporary restraining order, the ITC is prevented from disclosing the plaintiffs' BPI to Buchanan for 14 days. Katzmann ordered the ITC to file a response by Oct. 21.