Plaintiffs in Conflict-of-Interest Case Invoke 3 Precedential Opinions Following Confidential Hearing
Plaintiffs in a conflict-of-interest suit at the Court of International Trade invoked three court decisions -- two from the U.S. Court of Appeals for the Federal Circuit and one from the U.S. Court of Appeals for the 9th Circuit -- in a Nov. 9 notice of supplemental authority. The plaintiffs, led by Amsted Rail Co., said the cases were discussed during the hearing on the issue held at the trade court (Amsted Rail v. ITC , 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 freight rail couplers, and originally employed Wiley Rein, where Daniel Pickard was a partner at the time, to represent it. Pickard filed an antidumping and countervailing duty petition on behalf of ARC and McConway & Torley (M&T) to start the prior injury investigation. ARC then withdrew from the petition, leaving Pickard to continue the case with M&T and a labor union that replaced ARC. The ITC issued an administrative protective order (APO).
In that investigation, the ITC unanimously voted that the U.S. industry was not materially harmed. During the inquiry, Pickard moved from Wiley to Buchanan Ingersoll. The injury determination was issued in June, when the APO covered only Pickard and two non-attorneys at Wiley. After the determination, in July, Buchanan filed an amendment to the APO adding seven attorneys and two non-attorney personnel from Buchanan.
Days later, Buchanan filed a petition to start another injury investigation on the freight rail couplers, this time including Mexican imports as well as Chinese ones. Pickard, who had represented ARC, included Mexican imports in the petition, knowing that the only Mexican imports came from ARC's affiliate ASF-K, a maquiladora factory. Describing this as a "betrayal," ARC originally took to the ITC to argue that Pickard and Buchanan should be disqualified from the proceeding and dismissed from the APO (see 2210120062). The company filed suit at the Court of International Trade to argue that the ITC's decision to give business proprietary information access to Buchanan violated the Administrative Procedure Act and its 5th Amendment rights (see 2210170084).
The court held a confidential hearing on Nov. 9 in the case. Following the proceeding, the plaintiffs submitted three court cases to CIT: Unified Sewerage Agency v. Jelco, Uniloc 2017 v. Apple and Stone v. FDIC. In Jelco, the defendant moved to disqualify the plaintiff's law firm since the attorneys were suing their own client for violating the Code of Professional Responsibility of the State of Oregon by representing interests adverse to a former or present client. The 9th Circuit upheld the trial court's finding, ruling that the plaintiff's counsel could adequately represent Jelco and another company in various actions.
As part of the Uniloc 2017 case, Apple moved to dismiss materials Uniloc designated as highly confidential under a protective order entered by the district court and to dismiss Uniloc's motion to seal the materials. The Federal Circuit held that since Uniloc failed to comply with the rules setting out the standards for filing documents under seal, the district court did not abuse its discretion in rejecting the motions to seal the confidential information.
In the Stone case, the Federal Deposit Insurance Corporation started removal proceedings against Milton Stone, a bank examiner, based on his false submissions of requests for leave. The FDIC assigned the case to a deciding official who received ex parte communications from FDIC officials, then ultimately recommended Stone's dismissal. The FDIC terminated Stone's employment, leading to his appeal to the Merit Systems Protection Board, which held that the receipt of the communications constituted harmful error. The Federal Circuit vacated the board's decision, sending it back to the board to find whether the ex parte communications undermined Stone's procedural due process rights and whether the communications introduced new and material information.