UNITED STATES INTERNATIONAL TRADE COMMISSION
`Washington, DC
`
`Before the Honorable Charles E. Bullock
`Chief Administrative Law Judge
`
`In the Matter of
`CERTAIN CASUAL FOOTWEAR AND
`PACKAGING THEREOF
`
`Investigation No. 337-TA-1270
`
`CROCS, INC.’S AND DR. LEONARD’S HEALTHCARE CORP.’S JOINT MOTION TO
`TERMINATE THE INVESTIGATION AS TO DR. LEONARD’S HEALTHCARE CORP.
`BASED UPON A CONSENT ORDER
`
`Pursuant to Commission Rule 210.21(c), Complainant Crocs, Inc. (“Crocs” or
`
`“Complainant”) and Respondent Dr. Leonard’s Healthcare Corp. d/b/a Carol Wright (“Dr.
`
`Leonard’s”) respectfully move for termination of this Investigation as to Dr. Leonard’s based
`
`upon entry of a consent order. An executed Consent Order Stipulation and a proposed Consent
`
`Order are attached hereto as Exhibits B and C, respectively. Crocs and Dr. Leonard’s Settlement
`
`Agreement is attached hereto as Exhibit A. Pursuant to Rule 201.6 (a)(1) and Rule 210.21,
`
`submission of a redacted, public, version of the Settlement Agreement has also been submitted
`
`by the Parties. The information for which confidential status is claimed comprise sales and
`
`inventory information of Dr. Leonard’s, the disclosure of which may provide an unwarranted
`
`advantage to competitors interested in, e.g., Dr. Leonard’s buying practices, sales, and inventory
`
`practices, as well as confidential business information of Complainant related to the specific
`
`terms of settlement with Dr. Leonard’s. This information qualifies as confidential business
`
`information under Commission Rule 201.6(a)(1), and the disclosure of the information is likely
`
`to have the effect of impairing the Commission’s ability to obtain such information, as is
`
`necessary to perform its statutory functions, and/or causing substantial harm to the competitive
`
`position of Dr. Leonard’s and Complainant.
`
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`

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`The moving parties certify that there are no other agreements, written or oral, express or
`
`implied, between Complainant and Dr. Leonard’s concerning the subject matter of this
`
`Investigation. The Consent Order Stipulation contains the admissions, waivers, statements, and
`
`other requirements pursuant to Commission Rule 210.21(c)(3). The proposed Consent Order
`
`contains the terms specified by Commission Rule 210.21(c)(4). The moving parties submit that
`
`entry of the proposed Consent Order will streamline the issues in this Investigation and will not
`
`cause any prejudice to the remaining Respondents. Further, termination of this Investigation as
`
`to Respondent Dr. Leonard’s is in the public interest and promotes administrative economy.
`
`Accordingly, Complainant and Dr. Leonard’s respectfully request that the Administrative
`
`Law Judge issue an initial determination terminating this Investigation as to Respondent Dr.
`
`Leonard’s on the basis of the executed Consent Order Stipulation, and entry of the proposed
`
`Consent Order.
`
`GROUND RULE 3.2 CERTIFICATION
`
`Pursuant to Ground Rule 3.2, the moving parties made reasonable, good-faith efforts to
`
`contact and resolve this matter with counsel for the nonmoving respondents who have appeared
`
`in this Investigation two business days prior to filing this motion. The nonmoving respondents
`
`did not indicate any opposition to this Motion. The Staff indicated that it will take a position on
`
`the papers.
`
`Dated: August 20, 2021
`
`Respectfully submitted,
`
`/s/ Michael A. Berta
`Michael A. Berta
`Isaac Ramsey
`ARNOLD & PORTER KAYE SCHOLER LLP
`Three Embarcadero Center, 10th Floor
`San Francisco, CA 94111-4024
`Telephone: (415) 471-3100
`
`US 170262795v2
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`

`

`Facsimile: (415) 471-3400
`Thomas T. Carmack
`ARNOLD & PORTER KAYE SCHOLER LLP
`3000 El Camino Real
`Five Palo Alto Square, Suite 500
`Palo Alto, CA 94306-3807
`Telephone: (650) 319-4500
`Facsimile: (650) 319-4700
`Jacob Michael Bass
`ARNOLD & PORTER KAYE SCHOLER LLP
`250 West 55th Street
`New York, NY 10019-9710
`Telephone: (212) 836-8000
`Facsimile: (212) 836-8689
`Mark Samartino
`ARNOLD & PORTER KAYE SCHOLER LLP
`70 West Madison Street
`Suite 4200
`Chicago, IL 60602-4231
`Telephone: (312) 583-2300
`Facsimile: (312) 583-2360
`Counsel for Complainant Crocs, Inc.
`
`/s/ Adrienne C. Rogove
`Adrienne C. Rogove
`Blank Rome LLP
`300 Carnegie Center, Suite 220
`Princeton, NJ 08540
`Counsel for Dr. Leonard’s Healthcare Corp. d/b/a
`Carol Wright
`
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`

`CERTAIN CASUAL FOOTWEAR AND
`PACKAGING THEREOF
`
` Inv. No. 337-TA-1270
`
`CERTIFICATE OF SERVICE
`
`I, Douglas Smith, hereby certify that on August 20, 2021, a copy of CROCS, INC.’S
`AND DR. LEONARD’S HEALTHCARE CORP.’S JOINT MOTION TO TERMINATE
`THE INVESTIGATION AS TO DR. LEONARD’S HEALTHCARE CORP. BASED
`UPON A CONSENT ORDER was served upon the following parties as indicated:
`
`☐ Via U.S. Mail
`☐ Via Hand Delivery
`☐ Via Overnight Courier
`☐ Via Electronic Mail
`☒ Via Electronic Filing
`Administrative Law Judge
`
`
`
`The Honorable Lisa Barton
`Secretary to the Commission
`U.S. International Trade Commission
`500 E Street, SW, Room 112
`Washington, DC 20436
`
`The Honorable Charles E. Bullock
`U.S. International Trade Commission
`500 E Street, SW
`Washington, DC 20436
`Email: bullock337@usitc.gov
`
`Irina Kushner
`ALJ Attorney Advisor
`U.S. International Trade Commission
`500 E Street, SW
`Washington, DC 20436
`Email: irina.kushner@usitc.gov
`
` ☐
`
` Via U.S. Mail
`☐ Via Hand Delivery
`☐ Via Overnight Courier
`☒ Via Electronic Mail
`
`Jennifer Dienes
`Office of Unfair Import Investigation
`U.S. International Trade Commission
`500 E. Street, S.W., Room 317
`Washington, D.C. 20436
`Email: jennifer.dienes@usitc.gov
`
`Office of Unfair Import Investigation
`☐ Via U.S. Mail
`☐ Via Hand Delivery
`☐ Via Overnight Courier
`☒ Via Electronic Mail
`
`Kathryn L Clune
`CROWELL & MORING, LLP
`1001 Pennsylvania Avenue, NW
`Washington, D.C. 20004-2595
`
`Respondents
`Counsel for Respondent Bijora, Inc., d/b/a Akira
`☐ Via U.S. Mail
`☐ Via Hand Delivery
`☐ Via Overnight Mail
`☒ Via Electronic Mail
`
`Jacob Z. Zambrzycki
`CROWELL & MORING, LLP
`590 Maison Avenue, 20th Floor
`New York, NY 1022-4000
`Email: AKIRA-ITC@crowell.com
`
`1
`
`

`

` Inv. No. 337-TA-1270
`
`CERTAIN CASUAL FOOTWEAR AND
`PACKAGING THEREOF
`Counsel for Respondent Cape Robbin Inc.
`☐ Via U.S. Mail
`☐ Via Hand Delivery
`☐ Via Overnight Mail
`☒ Via Electronic Mail
`
`Tim M. Agajanian
`Arnold E. Slar
`ROPERS MAJESKI PC
`445 South Figueroa Street, 30th Floor
`Los Angeles, CA 90071
`Tel: (213) 312-2000
`Email: tim.agajanian@ropers.com
`arnold.sklar@ropers.com
`Counsel for Respondent Dr. Leonard’s Healthcare Corp. d/b/a Carol Wright
`Adrienne C. Rogove
`☐ Via U.S. Mail
`BLANKROME
`☐ Via Hand Delivery
`300 Carnegie Center, Ste. 220
`☐ Via Overnight Mail
`Princeton, NJ 08540
`☒ Via Electronic Mail
`
`Dipu Doshi
`BLANKROME
`International Square
`1825 Eye Street NW
`Washington, D.C. 20006-5403
`Email: Rogove@BlankRome.com
`DDoshi@BlankRome.com
`Counsel for Respondent Full Beauty Brands Inc., d/b/a Kingsize
`Gary Rinkerman
`☐ Via U.S. Mail
`FISHERBROYLES, LLP
`☐ Via Hand Delivery
`1200 G Street N.W., Suite 800
`☐ Via Overnight Mail
`Washington, D.C. 20005
`☒ Via Electronic Mail
`Tel: (202) 321-9179
`Email: Gary.Rinkerman@FisherBroyles.com
`Counsel for Respondent Hobby Lobby Stores, Inc.
`
`Brian Johnson
`Li Guo
`STEPTOE & JOHNSON, LLP
`1330 Connecticut Avenue, NW
`Washington, D.C. 20036
`Carol Brophy
`STEPTOE & JOHNSON, LLP
`1 Market Plaza, Spear Tower
`Suite 3900
`San Francisco, CA 94105
`Email: SJHobbyLobby@steptoe.com
`
`☐ Via U.S. Mail
`☐ Via Hand Delivery
`☐ Via Overnight Mail
`☒ Via Electronic Mail
`
`
`
`2
`
`

`

` Inv. No. 337-TA-1270
`
`CERTAIN CASUAL FOOTWEAR AND
`PACKAGING THEREOF
`Counsel for Respondent Loeffler Randall Inc.
`☐ Via U.S. Mail
`☐ Via Hand Delivery
`☐ Via Overnight Mail
`☒ Via Electronic Mail
`
`Jordan L. Coyle
`ORRICK HERRINGTON & SUTCLIFFE, LLP
`1152 15th Street, NW
`Washington, D.C. 20005
`Sheryl Garko
`Mark Puzella
`Katherine Kerrick
`ORRICK HERRINGTON & SUTCLIFFE, LLP
`222 Berkeley Street, Suite 2000
`Boston, MA 02116
`
`Lindsay Rindskopf
`ORRICK HERRINGTON & SUTCLIFFE, LLP
`51 West 52nd Street
`New York, NY 10019
`Email: 1270-Orrick-Service@orrick.com
`Counsel for Respondent Maxhouse Rise Ltd.
`☐ Via U.S. Mail
`☐ Via Hand Delivery
`☐ Via Overnight Mail
`☒ Via Electronic Mail
`
`Stephen J. Horace
`Michael Best & Friedrich LLP
`1776 Lincoln Street, Suite 1100
`Denver, CO 80203
`Tel: (720) 745-4870
`Fax: (877) 398-5240
`Email: MaxhouseRise337-1270@michaelbest.com
`Counsel for Respondent Quanzhou ZhengDe Network Corp., d/b/a/ Amoji
`Jonathan David Ball, Ph.D.
`Giancarlo Scaccia
`GREENBERG TRAURIG, LLP
`MetLife Building
`200 Park Avenue
`New York, New York 10166
`Email: ballj@gtlaw.com
`Email: scacciag@gtlaw.com
`Counsel for Respondent Yoki Fashion International LLC
`☐ Via U.S. Mail
`☐ Via Hand Delivery
`☐ Via Overnight Mail
`☒ Via Electronic Mail
`
`☐ Via U.S. Mail
`☐ Via Hand Delivery
`☐ Via Overnight Mail
`☒ Via Electronic Mail
`
`Mark A. Thomas
`Zachary C. Howenstine
`Sydney K. Johnson
`ARMSTRONG TEASDALE LLP
`7700 Forsyth Blvd., Suite 1800
`St. Louis, MO 63105
`Email: mathomas@atllp.com
`Email: zhowenstine@atllp.com
`Email: skjohnson@atllp.com
`
`3
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`

`CERTAIN CASUAL FOOTWEAR AND
`PACKAGING THEREOF
`
` Inv. No. 337-TA-1270
`
`/s/ Sherri Mills
` Sherri Mills
`
`4
`
`

`

`UNITED STATES INTERNATIONAL TRADE COMMISSION
`Washington, DC
`
`Before the Honorable Charles E. Bullock
`Chief Administrative Law Judge
`
`In the Matter of
`CERTAIN CASUAL FOOTWEAR AND
`PACKAGING THEREOF
`
`Investigation No. 337-TA-1270
`
`MEMORANDUM IN SUPPORT OF THE JOINT MOTION TO TERMINATE THE
`INVESTIGATION AS TO DR. LEONARD’S HEALTHCARE CORP.
`BASED UPON A CONSENT ORDER
`
`Complainant Crocs, Inc. (“Crocs” or “Complainant”) and Respondent Dr. Leonard’s
`
`Healthcare Corp. d/b/a Carol Wright (“Dr. Leonard’s”) submit this Memorandum in Support of
`
`their Joint Motion to Terminate this Investigation as to Respondent Dr. Leonard’s based upon an
`
`entry of a Consent Order.
`
`The Commission instituted this Investigation and named Dr. Leonard’s as a Respondent
`
`on July 6, 2021 based on a Complaint filed by Complainant on June 8, 2021, as corrected and
`
`supplemented on June 10, 2021, June 17, 2021, June 22, 2021, June 25, 2021, and June 28, 2021
`
`(the “Complaint”). 86 Fed. Reg. 36303 (July 9, 2021). The Complaint alleged a violation of
`
`Section 337 of the Tariff Act of 1930, as amended, by, among others, Dr. Leonard’s, by reason
`
`of the unlawful importation into the United States, the sale for importation into the United States,
`
`and/or the sale within the United States after importation of certain casual footwear products
`
`identified in paragraphs 146-163 of the Complaint that infringe United States Trademark
`
`Registration No. 5,149,328 (the “’328 Registration”) and United States Trademark Registration
`
`No. 5,273,875 (the “’875 Registration” and together with the ’328 Registration, the “3D
`
`Marks”), and which violate Section 32(1) of the Lanham Act (15 U.S.C. § 1114(1)), Section
`
`43(a) of the Lanham Act (15 U.S.C. § 1125(a)), and Section 43(c) of the Lanham Act (15 U.S.C.
`
`US 170262795v2
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`§ 1125(c)) (the “Accused Products”). On August 19, 2021, Dr. Leonard’s executed a Consent
`
`Order Stipulation that met the requirements of 19 C.F.R. § 210.21(c). Dr. Leonard’s agrees that
`
`upon entry of the proposed Consent Order by the Commission, Dr. Leonard’s will not import,
`
`sell for importation into the United States, and/or sell within the United States after importation
`
`any Accused Products except under consent or license from Complainant. Public interest and the
`
`promotion of administrative economy support granting the present motion. Commission policy
`
`and the public interest favor settlement because it “avoid[s] needless litigation” and “conserve[s]
`
`public resources.” See, e.g., Certain Radio Frequency Micro-Needle Dermatological Treatment
`
`Devices and Components Thereof, Inv. No. 337-TA-1112, Order No. 45 at 2 (Sept. 11, 2019),
`
`not reviewed by Comm’n Notice (October 3, 2019); Certain Air Mattress Bed Systems and
`
`Components Thereof, Inv. No. 337-TA-999, Order No. 9 at 4 (Nov. 18, 2016) (noting that there
`
`is “significant public interest benefits” in resolving the Investigation through the proposed
`
`consent order).
`
`It is in the public interest to enter the proposed Consent Order and to terminate this
`
`Investigation with respect to Respondent Dr. Leonard’s. Entering the proposed Consent Order
`
`will save administrative resources by removing the need for the Commission to determine
`
`whether Respondent Dr. Leonard’s activities violate Section 337 as they relate to the Accused
`
`Products. Moreover, entering the proposed Consent Order will not impose an undue burden on
`
`the public health and welfare, competitive conditions in the U.S. economy, production of like or
`
`directly competitive articles in the United States, or U.S. consumers. The resolution of this
`
`Investigation as to Respondent Dr. Leonard’s preserves resources for the Commission, the
`
`private parties, and serves the public interest. Complainant and Respondent Dr. Leonard’s,
`
`therefore, request that the above-captioned Investigation be terminated with respect to
`
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`Respondent Dr. Leonard’s based upon the entry of the proposed Consent Order, pursuant to
`
`Commission Rule 210.21(c).
`
`Dated: August 20, 2021
`
`Respectfully submitted,
`
`/s/ Michael A. Berta
`Michael A. Berta
`Isaac Ramsey
`ARNOLD & PORTER KAYE SCHOLER LLP
`Three Embarcadero Center, 10th Floor
`San Francisco, CA 94111-4024
`Telephone: (415) 471-3100
`Facsimile: (415) 471-3400
`Thomas T. Carmack
`ARNOLD & PORTER KAYE SCHOLER LLP
`3000 El Camino Real
`Five Palo Alto Square, Suite 500
`Palo Alto, CA 94306-3807
`Telephone: (650) 319-4500
`Facsimile: (650) 319-4700
`Jacob Michael Bass
`ARNOLD & PORTER KAYE SCHOLER LLP
`250 West 55th Street
`New York, NY 10019-9710
`Telephone: (212) 836-8000
`Facsimile: (212) 836-8689
`Mark Samartino
`ARNOLD & PORTER KAYE SCHOLER LLP
`70 West Madison Street
`Suite 4200
`Chicago, IL 60602-4231
`Telephone: (312) 583-2300
`Facsimile: (312) 583-2360
`Counsel for Complainant Crocs, Inc.
`
`/s/ Adrienne C. Rogove
`Adrienne C. Rogove
`Blank Rome LLP
`300 Carnegie Center, Suite 220
`Princeton, NJ 08540
`Counsel for Dr. Leonard’s Healthcare Corp. d/b/a
`Carol Wright
`
`US 170262795v2
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`

`

`EXHIBIT A
`EXHIBIT A
`
`

`

`
`
`SETTLEMENT AGREEMENT
`
`This Settlement Agreement (“Agreement”) is made by and between Crocs, Inc. (“Crocs”)
`
`on the one hand and Dr. Leonard’s Healthcare Corp. d/b/a Carol Wright (“Dr. Leonard’s” and
`together with Crocs, the “Parties”) effective August 11, 2021 (the “Effective Date”).
`
`WHEREAS Crocs contends that certain footwear sold by Dr. Leonard’s violates Crocs’
`
`rights in U.S. Trademark Registration Nos. 5,149,328, and 5,273,875 (the “Crocs IP”);
`
`WHEREAS Crocs has filed a Complaint for unfair competition in the United States
`
`International Trade Commission (the “Commission”) entitled In the Matter of Certain Casual
`Footwear Products and Packaging Thereof,
`Investigation No. 337-TA-1270
`(the
`“Investigation”);
`
`WHEREAS, to avoid further litigation, Crocs and Dr. Leonard’s have agreed to resolve the
`
`Investigation as to Dr. Leonard’s, make the covenants described herein, and make certain releases
`of claims as described herein.
`
`
`
`NOW, THEREFORE, in consideration of the mutual promises made herein, the Parties
`hereby agree as follows:
`
`
`
`
`1.
`
`Covenants by Dr. Leonard’s. Dr. Leonard’s hereby covenants as follows:
`
`Dr. Leonard’s stipulates that the Accused Products as described in
`(a)
`paragraphs 146-163 of the Complaint infringe or otherwise violate the Crocs IP (the
`“Infringing Products”).
`
`
`
`No later than the Cease and Desist Date, Dr. Leonard’s shall identify to
`(c)
`Crocs all third parties in any way involved in the manufacture, importation, distribution,
`and sale of the Infringing Products.
`
`Dr. Leonard’s agrees to the filing of the Joint Motion to Terminate Dr.
`(d)
`Leonard’s from the Investigation, Consent Order Stipulation, and Consent Order, which
`are attached hereto as Exhibit A (“Motion to Terminate”), which Crocs shall file no later
`than 10 business days after the Effective Date.
`
`
`
`US 170167024v5
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`Dr. Leonard’s agrees to the filing of the Notice of Dismissal with Prejudice
`(e)
`in Crocs, Inc. v. Dr. Leonard’s Healthcare Corp. et al., Case No. 2:21-cv-13583 (D.N.J.),
`attached hereto as Exhibit B (“Notice of Dismissal”), which Crocs shall file no later than
`10 business days after the Effective Date.
`
`Dr. Leonard’s represents and warrants that its sales of the Infringing
`(f)
`Products, and remaining inventory thereof, as of August 2, 2021 are as follows:
`
`
`
`
`
`;
`
`
`
`(i)
`
`(ii)
`
`
`
`
`
`
`
`
`
`2.
`
`Covenants by Crocs. Crocs hereby covenants as follows:
`
`Dr. Leonard’s may actively market, actively advertise, and sell the
`(a)
`Infringing Products until the Cease and Desist Date.
`
`Crocs agrees to the filing of the Motion to Terminate, which it shall file no
`(b)
`later than 10 business days after the Effective Date.
`
`Crocs agrees to file the Notice of Dismissal, which it shall file no later than
`(c)
`10 business day after the Effective Date.
`
`
`Confidentiality. Except for Dr. Leonard’s admission that the Infringing Products
`4.
`
`infringe the Crocs IP, the Parties agree to maintain in confidence and not to disclose the existence
`of this Agreement, the facts and circumstances giving rise to the Investigation related to Dr.
`Leonard’s, and the contents and terms of this Agreement (the “Settlement Information”). The
`Parties agree to take every reasonable precaution to prevent the disclosure of any Settlement
`Information to third parties, except to such employees, officers, directors, attorneys, accountants,
`and governmental entities who have a reasonable need to know of such Settlement Information.
`Notwithstanding the foregoing, both parties agree to the confidential submission of this Agreement
`to the Commission along with the Motion to Terminate as required by 19 C.F.R. § 210.21(a)(1)
`and to the public filing of a redacted version of this Agreement pursuant to 19 C.F.R. §§ 201.206(b)
`and 201.208(f).
`
`Costs. The Parties shall each bear their own costs, attorneys’ fees, and other fees
`5.
`
`incurred in connection with the Investigation and this Agreement.
`
`
`US 170167024v5
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`No Representations. Each Party represents that it has had the opportunity to consult
`6.
`
`with an attorney, and has carefully read and understands the scope and effect of the provisions of
`this Agreement. Neither Party has relied upon any representations or statements made by the other
`Party that are not specifically set forth in this Agreement.
`
`Severability. In the event that any provision hereof becomes or is declared by a
`7.
`
`court of competent jurisdiction to be illegal, unenforceable or void, this Agreement shall continue
`in full force and effect without said provision.
`
`Entire Agreement. Except for the Motion to Terminate attached hereto, this
`8.
`
`Agreement represents the entire agreement and understanding between the Parties concerning the
`Investigation, and supersedes and replaces any and all prior agreements and understandings
`concerning the Investigation.
`
`9.
`
`California.
`
`Counterparts. This Agreement may be executed in counterparts, and each
`10.
`
`counterpart shall have the same force and effect as an original and shall constitute an effective,
`binding agreement on the part of each of the undersigned.
`
`Voluntary Execution of Agreement. This Agreement is executed voluntarily and
`11.
`
`without any duress or undue influence on the part or behalf of the Parties hereto. The Parties
`acknowledge that:
`
`
`
`
`
`(a)
`
`
`Governing Law. The Agreement shall be governed by the laws of the State of
`
`They have read this Agreement;
`
`
`
`
`
`
`
`
`
`They have been represented in the preparation, negotiation, and execution
`(b)
`of this Agreement by legal counsel of their own choice or that they have voluntarily
`declined to seek such counsel;
`
`
`They understand the terms and consequences of this Agreement and of the
`
`(c)
`releases it contains;
`
`
`
`(d)
`
`They are fully aware of the legal and binding effect of this Agreement.
`
`US 170167024v5
`
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`IN WITNESS WHEREOF,the Parties have executed this Agreementon the dates set forth below
`
`Dated: August 11, 2021
`
`CROCS, INC.
`
`Aug 12, 2021
`
`Dated: August 11, 2021
`
`By: Sara Hoverstock (Aug 12, 2021 16:08 MDT)
`Name: Sara Hoverstock
`Title: VP, Corp. & Asia Legal, Global IP
`
`DR. LEONARD’S HEALTHCARE CORP.
`D/B/A CAROL WRIGHT
`
`By:Antebwr
`
`mn
`Name: Scott Jo
`Title: President, Dr. Leonard’s Healthcare
`Corporation
`
`US 170167024v5
`
`

`

`
`
`EXHIBIT A TO THE SETTLEMENT
`AGREEMENT
`
`
`
`US 170167024v5
`
`

`

`
`
`UNITED STATES INTERNATIONAL TRADE COMMISSION
`Washington, DC
`
`Before the Honorable Charles E. Bullock
`Chief Administrative Law Judge
`
`
`
`Investigation No. 337-TA-1270
`
`In the Matter of
`CERTAIN CASUAL FOOTWEAR AND
`PACKAGING THEREOF
`
`
`
`CROCS, INC.’S AND DR. LEONARD’S HEALTHCARE CORP.’S JOINT MOTION TO
`TERMINATE THE INVESTIGATION AS TO DR. LEONARD’S HEALTHCARE CORP.
`BASED UPON A CONSENT ORDER
`
`Pursuant to Commission Rule 210.21(c), Complainant Crocs, Inc. (“Crocs” or
`
`
`
`“Complainant”) and Respondent Dr. Leonard’s Healthcare Corp. d/b/a Carol Wright (“Dr.
`
`Leonard’s”) respectfully move for termination of this Investigation as to Dr. Leonard’s based
`
`upon entry of a consent order. An executed Consent Order Stipulation and a proposed Consent
`
`Order are attached hereto as Exhibits B and C, respectively. Crocs and Dr. Leonard’s Settlement
`
`Agreement is attached hereto as Exhibit A. Pursuant to Rule 201.6 (a)(1) and Rule 210.21,
`
`submission of a redacted, public, version of the Settlement Agreement has also been submitted
`
`by the Parties. The information for which confidential status is claimed comprise sales and
`
`inventory information of Dr. Leonard’s, the disclosure of which may provide an unwarranted
`
`advantage to competitors interested in, e.g., Dr. Leonard’s buying practices, sales, and inventory
`
`practices, as well as confidential business information of Complainant related to the specific
`
`terms of settlement with Dr. Leonard’s. This information qualifies as confidential business
`
`information under Commission Rule 201.6(a)(1), and the disclosure of the information is likely
`
`to have the effect of impairing the Commission’s ability to obtain such information, as is
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`necessary to perform its statutory functions, and/or causing substantial harm to the competitive
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`position of Dr. Leonard’s and Complainant.
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`The moving parties certify that there are no other agreements, written or oral, express or
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`implied, between Complainant and Dr. Leonard’s concerning the subject matter of this
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`Investigation. The Consent Order Stipulation contains the admissions, waivers, statements, and
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`other requirements pursuant to Commission Rule 210.21(c)(3). The proposed Consent Order
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`contains the terms specified by Commission Rule 210.21(c)(4). The moving parties submit that
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`entry of the proposed Consent Order will streamline the issues in this Investigation and will not
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`cause any prejudice to the remaining Respondents. Further, termination of this Investigation as
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`to Respondent Dr. Leonard’s is in the public interest and promotes administrative economy.
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`Accordingly, Complainant and Dr. Leonard’s respectfully request that the Administrative
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`Law Judge issue an initial determination terminating this Investigation as to Respondent Dr.
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`Leonard’s on the basis of the executed Consent Order Stipulation, and entry of the proposed
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`Consent Order.
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`GROUND RULE 3.2 CERTIFICATION
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`Pursuant to Ground Rule 3.2, the moving parties made reasonable, good-faith efforts to
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`contact and resolve this matter with counsel for the nonmoving respondents who have appeared
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`in this Investigation two business days prior to filing this motion. The nonmoving respondents
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`did not indicate any opposition to this Motion. The Staff indicated that it will take a position on
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`the papers.
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`Dated: August 19, 2021
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`Respectfully submitted,
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`/s/ Michael A. Berta
`Michael A. Berta
`Isaac Ramsey
`ARNOLD & PORTER KAYE SCHOLER LLP
`Three Embarcadero Center, 10th Floor
`San Francisco, CA 94111-4024
`Telephone: (415) 471-3100
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`Facsimile: (415) 471-3400
`Thomas T. Carmack
`ARNOLD & PORTER KAYE SCHOLER LLP
`3000 El Camino Real
`Five Palo Alto Square, Suite 500
`Palo Alto, CA 94306-3807
`Telephone: (650) 319-4500
`Facsimile: (650) 319-4700
`Jacob Michael Bass
`ARNOLD & PORTER KAYE SCHOLER LLP
`250 West 55th Street
`New York, NY 10019-9710
`Telephone: (212) 836-8000
`Facsimile: (212) 836-8689
`Mark Samartino
`ARNOLD & PORTER KAYE SCHOLER LLP
`70 West Madison Street
`Suite 4200
`Chicago, IL 60602-4231
`Telephone: (312) 583-2300
`Facsimile: (312) 583-2360
`Counsel for Complainant Crocs, Inc.
`
`/s/
`
`[NAME]
`Dr. Leonard’s Healthcare Corp. d/b/a Carol Wright
`[Title]
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`UNITED STATES INTERNATIONAL TRADE COMMISSION
`Washington, DC
`
`Before the Honorable Charles E. Bullock
`Chief Administrative Law Judge
`
`
`
`Investigation No. 337-TA-1270
`
`In the Matter of
`CERTAIN CASUAL FOOTWEAR AND
`PACKAGING THEREOF
`
`
`
`MEMORANDUM IN SUPPORT OF THE JOINT MOTION TO TERMINATE THE
`INVESTIGATION AS TO DR. LEONARD’S HEALTHCARE CORP.
`BASED UPON A CONSENT ORDER
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`Complainant Crocs, Inc. (“Crocs” or “Complainant”) and Respondent Dr. Leonard’s
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`Healthcare Corp. d/b/a Carol Wright (“Dr. Leonard’s”) submit this Memorandum in Support of
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`their Joint Motion to Terminate this Investigation as to Respondent Dr. Leonard’s based upon an
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`entry of a Consent Order.
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`The Commission instituted this Investigation and named Dr. Leonard’s as a Respondent
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`on July 6, 2021 based on a Complaint filed by Complainant on June 8, 2021, as corrected and
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`supplemented on June 10, 2021, June 17, 2021, June 22, 2021, June 25, 2021, and June 28, 2021
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`(the “Complaint”). 86 Fed. Reg. 36303 (July 9, 2021). The Complaint alleged a violation of
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`Section 337 of the Tariff Act of 1930, as amended, by, among others, Dr. Leonard’s, by reason
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`of the unlawful importation into the United States, the sale for importation into the United States,
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`and/or the sale within the United States after importation of certain casual footwear products
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`identified in paragraphs 146-163 of the Complaint (the “Accused Products”) that infringe United
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`States Trademark Registration No. 5,149,328 (the “’328 Registration”) and United States
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`Trademark Registration No. 5,273,875 (the “’875 Registration” and together with the ’328
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`Registration, the “3D Marks”). On August 19, 2021, Dr. Leonard’s executed a Consent Order
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`Stipulation that met the requirements of 19 C.F.R. § 210.21(c). Dr. Leonard’s agrees that upon
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`entry of the proposed Consent Order by the Commission, Dr. Leonard’s will not import, sell for
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`importation into the United States, and/or sell within the United States after importation any
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`Accused Products except under consent or license from Complainant. Public interest and the
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`promotion of administrative economy support granting the present motion. Commission policy
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`and the public interest favor settlement because it “avoid[s] needless litigation” and “conserve[s]
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`public resources.” See, e.g., Certain Radio Frequency Micro-Needle Dermatological Treatment
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`Devices and Components Thereof, Inv. No. 337-TA-1112, Order No. 45 at 2 (Sept. 11, 2019),
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`not reviewed by Comm’n Notice (October 3, 2019); Certain Air Mattress Bed Systems and
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`Components Thereof, Inv. No. 337-TA-999, Order No. 9 at 4 (Nov. 18, 2016) (noting that there
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`is “significant public interest benefits” in resolving the Investigation through the proposed
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`consent order).
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`It is in the public interest to enter the proposed Consent Order and to terminate this
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`Investigation with respect to Respondent Dr. Leonard’s. Entering the proposed Consent Order
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`will save administrative resources by removing the need for the Commission to determine
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`whether Respondent Dr. Leonard’s activities violate Section 337 as they relate to the Accused
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`Products. Moreover, entering the proposed Consent Order will not impose an undue burden on
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`the public health and welfare, competitive conditions in the U.S. economy, production of like or
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`directly competitive articles in the United States, or U.S. consumers. The resolution of this
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`Investigation as to Respondent Dr. Leonard’s preserves resources for the Commission, the
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`private parties, and serves the public interest. Complainant and Respondent Dr. Leonard’s,
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`therefore, request that the above-captioned Investigation be terminated with respect to
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`Respondent Dr. Leonard’s based upon the entry of the proposed Consent Order, pursuant to
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`Commission Rule 210.21(c).
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`Respectfully submitted,
`
`/s/ Michael A. Berta
`Michael A. Berta
`Isaac Ramsey
`ARNOLD & PORTER KAYE SCHOLER LLP
`Three Embarcadero Center, 10th Floor
`San Francisco, CA 94111-4024
`Telephone: (415) 471-3100
`Facsimile: (415) 471-3400
`Thomas T. Carmack
`ARNOLD & PORTER KAYE SCHOLER LLP
`3000 El Camino Real
`Five Palo Alto Square, Suite 500
`Palo Alto, CA 94306-3807
`Telephone: (650) 319-4500
`Facsimile: (650) 319-4700
`Jacob Michael Bass
`ARNOLD & PORTER KAYE SCHOLER LLP
`250 West 55th Street
`New York, NY 10019-9710
`Telephone: (212) 836-8000
`Facsimile: (212) 836-8689
`Mark Samartino
`ARNOLD & PORTER KAYE SCHOLER LLP
`70 West Madison Street
`Suite 4200
`Chicago, IL 60602-4231
`Telephone: (312) 583-2300
`Facsimile: (312) 583-2360
`Counsel for Complainant Crocs, Inc.
`
`/s/
`
`[NAME]
`Dr. Leonard’s Healthcare Corp. d/b/a Carol Wright
`[TITLE]
`
`
`
`
`
`
`
`Dated: August 19, 2021
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`EXHIBIT B
`CONSENT ORDER STIPULATION
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`UNITED STATES INTERNATIONAL TRADE COMMISSION
`Washington, DC
`
`Before the Honorable Charles E. Bullock
`Chief Administrative Law Judge
`
`
`
`Investigation No. 337-TA-1270
`
`In the Matter of
`CERTAIN CASUAL FOOTWEAR AND
`PACKAGING THEREOF
`
`
`
`
`
`
`
`
`
`CONSENT ORDER STIPULATION BY DR. LEONARD’S HEALTHCARE CORP.
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`WHEREAS, the United States International Trade Commission (the “Commission”)
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`instituted the above-captioned Investigation under Section 337 of the Tariff Act of 1930, as
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`amended (19 U.S.C. § 1337), on July 6, 2021, naming as a Respondent, among others, Dr.
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`Leonard’s Healthcare Corp. d/b/a Carol Wright (“Dr. Leonard’s”), based upon allegations in the
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`Corrected and Supplemental Complaint filed by Crocs, Inc. (“Crocs”) of Respondents’ unfair
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`acts in the importation, the sale for importation, and/or the sale after importation into the United
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`States of certain casual footwear products and packaging thereof (“Subject Articles”) in violation
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`of Section 32(1) of the Lanham Act (15 U.S.C. § 1114(1)), Section 43(a) of the Lanham Act (15
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`U.S.C. § 1125(a)), and Section 43(c) of the Lanham Act (15 U.S.C. § 1125(c)).
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`
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`WHEREAS, Crocs and Dr. Leonard’s have executed a Settlement Agreement, attached as
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`Exhibit A hereto, pursuant to which Dr. Leonard’s agrees to the entry of a Consent Order by the
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`Commission in the proposed form attached as Exhibit C hereto; and
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`
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`WHEREAS, based on the Settlement Agreement, Dr. Leonard’s is willing to accept entry
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`of the proposed Consent Order by the Commission and agree to all waivers and other provisions,
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`as required by 19 C.F.R. § 210.21.
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`IT IS HEREBY STIPULATED by Dr. Leonard’s in support of its and Crocs’ Joint
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`Motion to Terminate the Investigation as to Dr. Leonard’s Based Upon a Consent Order as
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`follows:
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`
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`1.
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`The Commission has subject matter jurisdiction over the above-captioned
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`Investigation. Dr. Leonard’s admits that the Commission has in rem jurisdiction over Dr.
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`Leonard’s accused casual footwear that are the subject of the Amended Complaint and the
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`Notice of Investigation. Dr. Leonard’s further admits that the Commission has in personam
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`jurisdiction over Dr. Leonard’s.
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`
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`2.
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`Dr. Leonard’s agrees not to sell for importation, import, or sell after importation
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`into the United States, or to knowingly aid, abet, encourage, participate in, or induce the sale for
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`importation, or sale or distribution after importation into the United States,