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`UNITED STATES INTERNATIONAL TRADE COMMISSION
`WASHINGTON, D.C.
`
`Before the Honorable Clark S. Cheney
`Chief Administrative Law Judge
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`
`
`In the Matter of
`CERTAIN SELECTIVE THYROID
`HORMONE RECEPTOR-BETA
`AGONISTS, PROCESSES FOR
`MANUFACTURING OR RELATING TO
`SAME, AND PRODUCTS CONTAINING
`SAME
`
`Investigation No. 337-TA-1352
`
`
`UNOPPOSED MOTION OF FOSTER MURPHY ALTMAN & NICKEL, PC TO
`INTERVENE FOR THE LIMITED PURPOSE OF ADDRESSING COMPLAINANT’S
`OMNIBUS MOTION FOR SANCTIONS
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`Foster Murphy Altman and Nickel, PC (“Foster Murphy”) hereby moves, pursuant to 19
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`C.F.R. § 210.19, to intervene in this investigation for the limited purpose of defending Foster
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`Murphy and its attorneys’ interests in response to Complainant Viking Therapeutics, Inc.’s
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`Omnibus Motion for Sanctions (Mot. No. 1352-023) (“Motion” or “Motion for Sanctions”) filed
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`June 30, 2023, seeking to hold Respondents Ascletis Biosciences Co., Ltd., Gannex Pharma Co.,
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`Ltd., Ascletis Pharmaceuticals Co., Ltd., Ascletis Pharma, Inc., and Jinzi Jason Wu (“collectively
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`“Respondents”) and their counsel jointly and severally liable for, inter alia, monetary sanctions.
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`GROUND RULE 5.1 CERTIFICATION
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`Pursuant to Ground Rule 5.1, Foster Murphy has made reasonable, good-faith efforts to
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`resolve the matter with the other parties and has consulted with counsel for Complainant, the
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`Commission Investigative Staff, and Respondents’ other counsel prior to filing this motion. No
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`party opposes this motion.
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`1
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`I.
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`BACKGROUND
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`This investigation was instituted based on a Complaint filed by Viking Therapeutic’s Inc.
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`(“Viking” or “Complainant”) on December 29, 2022. 88 Fed. Reg. 8,455 (Feb. 29, 2023). The
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`Complaint alleges violations of section 337 by Respondents based upon the importation into the
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`United States of certain selective thyroid hormone receptor-beta agonists, processes for
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`manufacturing or relating to same, and products containing same by reason of misappropriation
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`of trade secrets, the threat or effect of which is to destroy or substantially injure a domestic
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`industry or prevent the establishment of a domestic industry. Id.
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`Upon institution, the Commission sua sponte directed the presiding Administrative Law
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`Judge to “hold an early evidentiary hearing, find facts, and issue an early decision, within 100
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`days of institution except for good cause shown, as to whether complainant can show that the
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`threat or effect of the alleged unfair acts is to (i) to destroy or substantially injure an industry in
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`the United States, or (ii) to prevent the establishment of such an industry.” Id.; see 19 C.F.R. §
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`210.10(b)(3) (2021). An evidentiary hearing was held just two months later, on April 13-17,
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`2023. The evidentiary hearing on the 100-day and remaining issues in the investigation is set for
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`November 13-16, 2023. Order No. 26. The target date for this investigation is June 10, 2024.
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`The law firms Rimon, PC and Foster Murphy Altman & Nickel, PC entered their
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`appearances representing Respondents in this investigation on February 9, 2023 and February 10,
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`2023, respectively. On June 28, 2023, the law firm of Kirkland & Ellis LLP (“Kirkland”)
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`entered an appearance to also represent Respondents in this investigation.
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`On June 30, 2023, Complainant filed a motion for monetary and non-monetary sanctions
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`based on alleged discovery abuse by Respondents and Respondents’ counsel at the law firms of
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`Rimon, PC and Foster Murphy. Mot. No. 1352-023. In that Motion, Complainant asked the
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`2
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`Chief Administrative Law Judge to, inter alia, require Respondents and Respondents’ counsel to
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`pay certain of Complainant’s attorneys’ fees and costs.
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`The Motion briefly names Foster Murphy in connection with one of three categories of
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`alleged discovery abuse. Motion for Sanctions at 23, 39-40. On July 12, 2023, Respondents
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`(through Kirkland, Rimon, and Foster Murphy) filed their Opposition to that Motion, which
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`opposes monetary sanctions and clarifies the limited scope of Foster Murphy’s role in this
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`investigation as unrelated to the allegedly sanctionable conduct. Opposition to Motion for
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`Sanction at 2, fn. 2, and 9, fn. 5. Staff also responded on July 12, 2023, stating that it would be
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`“’unjust’ to hold Foster Murphy responsible for any of Respondents’ sanctionable behavior.”
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`Staff Response to Mot. No. 1352-023, EDIS Doc. ID 800201 at 19.1
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`On August 9, 2023, Foster Murphy moved for leave to withdraw as counsel for
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`Respondents due to Respondents’ failure to pay any of its invoices; that motion was unopposed
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`and is pending. Mot. No. 1352-026.
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`II.
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`ARGUMENT
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`Foster Murphy should be permitted to intervene in this investigation for the limited
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`purpose of defending itself against the Motion for Sanctions. On the issue of joint and several
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`liability, Foster Murphy and its attorneys may have separate and distinct interests from
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`Respondents and the Rimon law firm, are entitled to be heard with respect to those separate and
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`distinct interests, and cannot necessarily rely on Respondents to defend those interests, if further
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`defense is warranted. If further briefing or argument is requested or needed, Foster Murphy must
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`be provided a meaningful opportunity to present facts and argument that there is no basis for the
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`1 Complainant sought leave to reply in support of its Motion for Sanctions, but that proposed reply,
`and Respondents’ opposition to that motion for leave, did not relate to any alleged conduct of
`Foster Murphy or the proposed sanctions against Foster Murphy. The CALJ has not ordered
`further briefing or argument on the Motion for Sanctions.
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`3
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`imposition of sanctions against the Foster Murphy firm and/or their attorneys and that
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`Complainant’s stated justification for requesting the imposition of joint and several liability at
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`least as to Foster Murphy should be rejected.
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`Commission Rule 210.19 provides:
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`Any person desiring to intervene in an investigation or a related
`proceeding under this part shall make a written motion. . . . The
`Commission, or the administrative law judge by initial
`determination, may grant the motion to the extent and upon such
`terms as may be proper under the circumstances.
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`In considering whether intervention is proper under the circumstances, the Commission
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`often looks to Fed. R. Civ. P. 24 for guidance and the factors set forth within that Rule. See, e.g.,
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`Certain Electronic Devices With Imaging Processing Systems, Components Thereof, and
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`Associated Software, Inv. No. 337-TA-724, Comm’n. Op. at 57 (Dec. 1, 2011). Based on the
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`factors set forth in Fed. R. Civ. P. 24, a motion to intervene is most persuasive where (1) the
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`motion is timely, the (2) the movant has an interest relating to the property or transaction which
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`is the subject of the action, (3) the movant is so situated that the disposition of the action may as
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`a practical matter impair or impede the movant’s ability to protect that interest, (4) the movant is
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`not adequately represented by existing parties, and (5) the intervention will not unduly delay or
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`prejudice the adjudication of the original parties’ rights. Id. (citing Fed. R. Civ. P. 24 and
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`Certain Baseband Processor Chips and Chipsets, Inv. No. 337-TA-543, Order No. 27 (Feb. 15,
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`2006); see also Certain Portable Electronic Communications Devices, Including Mobile Phones
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`and Components Thereof, Inv. No. 337-TA-885, Order No. 14 (unreviewed Initial
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`Determination) at 2 (Oct. 31, 2013).
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`Applying these five factors, the Commission has granted limited motions to intervene by
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`counsel in cases involving joint and several liability between a client and its counsel for
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`discovery sanctions. See Certain Opaque Polymers, Inv. No. 337-TA-883, Notice of
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`Commission Decision to Grant Motions to Intervene; Commission Decision to Review an Initial
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`Determination Granting Default and Sanctions; Request for Written Submissions on Issues
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`Under Review, Remedy, The Public Interest, and Bonding (Dec. 16, 2014). All five of these
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`factors favor Foster Murphy’s limited intervention here: Foster Murphy and its attorneys (a)
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`bring this motion on a timely basis; (b) have an interest in the investigation because monetary
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`sanctions are being sought by Complainant against Respondents and their counsel, including
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`Foster Murphy; (c) disposition of the Motion without the participation of Foster Murphy and its
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`attorneys would impair their ability to protect their interests; (d) Foster Murphy and its attorneys’
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`interests may not be fully represented by the existing parties and their counsel; and (e) Foster
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`Murphy and its attorneys’ participation will not delay adjudication of the parties’ original rights
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`in the underlying substantive issues of the case. See generally Certain Electronic Devices with
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`Imaging Processing Systems, Components Thereof, and Associated Software, Inv. No. 337-TA-
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`724, Comm’n. Op. at 57 (Dec. 1, 2011); Certain Sucralose, Sweeteners Containing Sucralose
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`and Related Intermediate Compounds Thereof, Inv. No. 337-TA-604, Order No. 7 (July 25,
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`2007); Fed. R. Civ. P. 24.
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`A.
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`Foster Murphy’s Motion is Timely
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`Foster Murphy is filing this motion to intervene in this investigation the day after filing
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`its Motion to Withdraw as counsel for Respondents due to Respondents refusal to pay any of
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`Foster Murphy’s invoices. Foster Murphy had no basis or reason to request intervention at an
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`earlier stage of the investigation.2 This motion is being filed as soon as possible after it became
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`2 For the avoidance of doubt, Foster Murphy supports Respondents’ Opposition to the Motion for
`Sanctions and their Opposition to Complainant’s Motion for Leave to Reply, and Foster Murphy
`does not require any additional, separate briefing on the issue at this time.
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`5
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`clear that Foster Murphy needed to withdraw from its representation of Respondents due to lack
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`of payment.
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`B.
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`Foster Murphy and its Attorneys Have an Interest in the Investigation
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`Foster Murphy has a direct and significant interest regarding Complainant’s Motion —
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`specifically as to whether Foster Murphy and its attorneys should be jointly and severally liable
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`for any potential monetary sanctions and endure the potential negative impact to its professional
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`reputation from having been subjected to such a sanction. See, e.g., Simmerman v. Corino, 27
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`F.3d 58, 64 (3rd Cir. 1994) (sanctions against an attorney “act as a symbolic statement about the
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`quality and integrity of an attorney’s work — a statement which may have tangible effect upon
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`the attorney’s career.”).
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`C.
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`Foster Murphy and its Attorneys’ Ability to Protect Their Interests
`Will Be Substantially Impaired If Foster Murphy is Not Permitted to
`Intervene
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`If Foster Murphy is not a party and cannot present argument and if appropriate, evidence,
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`concerning its defenses against Complainant’s Motion for Sanctions, then its ability to protect
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`the interests of the firm and its attorneys, i.e., to avoid an erroneous imposition of sanctions
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`against them, will be meaningfully impaired. Granting Foster Murphy the opportunity to
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`intervene and present arguments on this limited issue, if warranted, is necessary for ensuring due
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`process. See, e.g., Certain Sneakers with Fabric Uppers and Rubber Soles, 337-TA-118,
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`Recommended Determination, 1982 WL 212676, at *3 (USITC Nov. 9, 1982) (“The
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`Commission’s authority to issue sanctions against a person is derived from the statutory
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`authority in 19 U.S.C.A. § 1337(f). To use this authority, the Commission must meet the basic
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`requirements of due process of law.”); Certain Concealed Cabinet Hinges and Mounting Plates,
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`337-TA-289, Order No. 89, 1989 WL 609040, at *8 (USITC June 15, 1989) (“In addition due
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`process requires that the party to be sanctioned be given fair advance notice of the particular
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`sanction being contemplated and the reasons therefor and an opportunity to respond.”).
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`D.
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`Foster Murphy’s Interests May Not Be Fully Represented by the
`Existing Parties or Their Counsel
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`Neither Respondents nor Respondents’ counsel have the intense interest that Foster
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`Murphy has in protecting the professional reputation of the firm and its attorneys. The monetary
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`and reputational damage that can result from sanctions against a law firm and its lawyers is
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`significant. This is particularly true given the small size of the specialized ITC bar. Moreover,
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`because Foster Murphy seeks to argue that it should not be jointly and severally liable for any
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`monetary sanctions that may issue due to its specialized role in this investigation,3 its interests
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`cannot necessarily be fully defended by Respondents or any other party.
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`Accordingly, only Foster Murphy has the ability and incentive to protect its interests and
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`the interests of its attorneys with respect to sanctions and the joint and several liability issues.
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`E.
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`Foster Murphy’s Intervention Will Not Delay or Prejudice the
`Parties’ Original Rights
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`Finally, Foster Murphy’s limited intervention on this narrow issue will not delay or
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`prejudice the parties’ original rights. Once its Motion For Leave To Withdraw is granted, Foster
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`Murphy will not be presenting argument or evidence on any substantive issue involved in this
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`investigation except on the narrow question of whether it is appropriate to impose sanctions
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`against it and/or its attorneys. The investigation will not be delayed in any way by Foster
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`Murphy’s intervention for the limited purpose of addressing any potential sanctions against it.
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`3 As Respondents’ Opposition to the Motion for Sanctions makes clear, Foster Murphy
`was retained to handle ITC-specific issues, such as domestic industry and injury, and was not
`involved in the collection or production of documents from Respondents. Opposition at 2, fn. 2,
`and 9, fn. 5.
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`7
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`III. CONCLUSION
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`Accordingly, for the foregoing reasons, Foster Murphy respectfully requests leave to
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`intervene for the limited purpose of presenting arguments on the firm’s behalf and on behalf of
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`its attorneys addressing why no sanctions should be issued against Foster Murphy or its
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`Respectfully submitted,
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`/s/ David F. Nickel
`Barbara A. Murphy
`James B. Altman
`David F. Nickel
`Susan Koegel
`John F. Presper
`Matthew N. Duescher
`FOSTER, MURPHY, ALTMAN &
`NICKEL, PC
`1150 18th Street NW, Suite 775
`Washington, DC 20036
`Telephone: 202-822-4100
`Facsimile: 202-822-4199
`Email: FM-Ascletis-1352@fostermurphy.com
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`Counsel for Proposed Intervenor Foster, Murphy,
`Altman & Nickel, PC
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`attorneys.
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`
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`Dated: August 10, 2023
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`Inv. No. 337-TA-1352
`
`CERTAIN SELECTIVE THYROID
`HORMONE RECEPTOR-BETA
`AGONISTS, PROCESSES FOR
`MANUFACTURING OR RELATING TO
`SAME AND PRODUCTS CONTAINING THE SAME
`
`
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`
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`CERTIFICATE OF SERVICE
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`I, D. B. “Brandy” Swanson, hereby certify that on August 10, 2023, the foregoing
`UNOPPOSED MOTION OF FOSTER MURPHY ALTMAN & NICKEL, PC TO
`INTERVENE FOR THE LIMITED PURPOSE OF ADDRESSING COMPLAINANT’S
`OMNIBUS MOTION FOR SANCTIONS (PUBLIC) was served upon the following parties as
`indicated:
`The Honorable Lisa R. Barton
`Secretary
`U.S. International Trade Commission
`500 E Street, SW
`Washington, DC 20436
`
`The Honorable Clark S. Cheney
`Chief Administrative Law Judge
`U.S. International Trade Commission
`500 E Street, SW
`Washington, DC 20436
`Cheney1352@usitc.gov
`
`Lisa Murray
`Office of Unfair Import Investigations
`U.S. International Trade Commission
`500 E Street, SW
`Washington, DC 20436
`Lisa.Murray@usitc.gov
`
`For Complainant
`Viking Therapeutics, Inc.
`
`Kecia J. Reynolds (Lead)
`PAUL HASTINGS LLP
`2050 M Street, NW
`Washington, DC 20036
`Main Phone: 202.552.1700
`Group Email:
`PH-Viking-ITC@paulhastings.com
`
`
` Via hand delivery
` Via courier (FedEx)
` Via facsimile
` Via first class mail
` Via electronic mail
` Via Box
`
` Via hand delivery
` Via courier (FedEx)
` Via facsimile
` Via first class mail
` Via EDIS
`
` Via hand delivery
` Via courier (FedEx)
` Via facsimile
` Via first class mail
` Via electronic mail
`
` Via hand delivery
` Via courier (FedEx)
` Via facsimile
` Via first class mail
` Via electronic mail
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`Inv. No. 337-TA-1352
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` Via hand delivery
` Via courier (FedEx)
` Via facsimile
` Via first class mail
` Via electronic mail
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` Via hand delivery
` Via courier (FedEx)
` Via facsimile
` Via first class mail
` Via electronic mail
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`CERTAIN SELECTIVE THYROID
`HORMONE RECEPTOR-BETA
`AGONISTS, PROCESSES FOR
`MANUFACTURING OR RELATING TO
`SAME AND PRODUCTS CONTAINING THE SAME
`
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`For Respondents
`Ascletis Pharma Inc., Ascletis
`Pharmaceuticals Co. Ltd., Ascletis
`Bioscience Co., Ltd., Gannex Pharma
`Co., Ltd., and Jinzi Jason Wu
`
`Paul F. Brinkman, P.C. (Lead)
`KIRKLAND & ELLIS LLP
`1301 Pennsylvania Avenue, N.W.
`Washington, D.C. 20004
`Group Email:
`KE-ITC-1352@Kirkland.com
`
`Michael F. Heafey
`RIMON, P.C.
`800 Oak Grove Ave.
`Suite 250
`Menlo Park, CA 94025
`Group Email:
`Ascletis-Counsel-of-
`Record@rimonlaw.com
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` /s/ D.B. “Brandy” Swanson
`D.B. “Brandy” Swanson, CP, RP
`Certified Paralegal
`Foster, Murphy, Altman & Nickel, PC
`1150 18th Street NW, Suite 775
`Washington DC 20036
`Direct Phone: 603.759.4690
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