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`UNITED STATES INTERNATIONAL TRADE COMMISSION
`WASHINGTON, D.C.
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`In the Matter of
`CERTAIN DISPOSABLE V APORIZER
`DEVICES AND COMPONENTS AND
`PACKAGING THEREOF
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`Inv. No. 337-TA-1381
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`COMPLAINANTS’ RESPONSE TO RESPONDENTS’ PETITION FOR REVIEW OF
`INITIAL DETERMINATION TERMINATING THE INVESTIGATION
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`I. INTRODUCTION
`For decades, the Commission has consistently applied settled precedent: Section 337
`prohibits terminating investigations with prejudice or with conditions of the kind sought here. In
`Certain Bar Clamps, the Commission unequivocally held that termination of an investigation with
`prejudice “is not permitted under section 337(b)(1).” Inv. No. 337-TA-429, Comm’n Op., 2001
`WL 36114993, at *2 (Feb. 13, 2001). This holding, grounded in the text and legislative history of
`Section 337, “oblige[s]” the Commission to investigate even a “refiled complaint” that “was
`previously withdrawn.” Id. at *3. Consistent with this statutory obligation, in the past 30 years, the
`Commission has never upheld, and an ALJ has never imposed, a condition upon termination
`limiting the scope of any possible future complaint. In relying upon Bar Clamps, Chief
`Administrative Law Judge (“ALJ”) Cheney’s Initial Determination (“ID”) correctly determined
`that this Investigation should be terminated in its entirety without prejudice and without the
`imposition of any of the conditions Respondents demand, consistent with long-standing
`Commission precedent.
`Respondents’ request that the Commission invalidate this longstanding precedent is
`meritless. The ID repeatedly found that Respondents failed to cite authority supporting their
`requested conditions. See, e.g., ID at 5 n.2; see id. at 6–7, 11–12. The ID’s approach follows
`established Commission decisions that expressly reject as “premature” any conditions restricting
`future complaints or subsequently instituted investigations. Certain Blow-Molded Bag-in-
`Container Devices, Inv. No. 337-TA-1115, Comm’n Notice, 2020 WL 468382, at *2 (Jan. 24,
`2020). Respondents’ position would, in effect, bar any complainant from refiling any claims
`against a respondent after withdrawing its complaint. This is contrary to the law.
`Despite having had three attempts to brief these issues, Respondents ignore many of the
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`Commission’s relevant decisions entirely. They cite no statutory interpretation of Section 337 or
`its legislative history to support their bid to overturn Bar Clamps. Instead, they allege
`Complainants may refile a substantially similar complaint, arguing for a change in the law based
`on the “advanced” stage of this Investigation—an argument the Commission has repeatedly
`rejected, even in cases with procedural postures identical to or even more “advanced” than this
`Investigation. See, e.g., Bar Clamps, 2001 WL 36114993, at *2–3; Certain Blow-Molded Bag-in-
`Container Devices, 2020 WL 468382, at *1–2; Certain Vaginal Ring Birth Control Devices, Inv.
`No. 337-TA-768, Order No. 30, 2012 WL 193995 (Jan. 20, 2012). These decisions have already
`“address[ed]” the “policy matters” for which Respondents apparently seek review. 19 C.F.R.
`§ 210.43(d)(2).
`No basis exists to grant review of settled Commission practice. Termination of this
`Investigation with prejudice or conditions would not merely conflict with Section 337’s text or Bar
`Clamps, it would hamstring the Commission’s authority to carry out its statutory mandate to curb
`unfair competition in import trade in all its forms. The Commission should reject Respondents’
`effort to overturn decades of well-founded precedent.
`II. BACKGROUND
`A. The Instant Investigation
`The Commission instituted this Investigation on December 15, 2023, based on certain
`unique claims, including allegations that Respondents engaged in unfair competition by violating
`the Prevent All Cigarette Trafficking (“PACT”) Act by failing to register with tax administrators
`and file required reports under PACT. This Investigation represents the first Section 337
`investigation involving PACT and stands among only a handful of instances where PACT claims
`have been litigated, particularly concerning disposable ENDS devices.
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` Respondents’ mischaracterizations of what occurred during the Investigation are an attempt
`to distract from their own failure to participate in discovery in good faith. Throughout the
`Investigation, Respondents repeatedly withheld documents until after the fact discovery deadline
`or produced them so late that they disrupted the discovery process. Far from being excessive,
`discovery in this Investigation was appropriate given the scope of the claims and the deliberately
`opaque network of importation, distribution, and sale of disposable ENDS devices involving more
`than 20 Respondents. The six-month discovery period was entirely reasonable. Discovery was
`reciprocal and proportional. For example, Respondents’ complaints about Complaints serving
`“over 190 Requests for Production,” ring hollow given that they served 196 Requests for
`Production on Complainants. Petition at 4. Complainants produced 102,825 documents—over
`1.25 million pages—demonstrating a level of cooperation that stands in stark contrast with
`Respondents’ repeated efforts to obstruct and delay the discovery process.
`Discovery further revealed that affiliates of certain Respondents sold Accused Products to
`related U.S. customers, necessitating Complainants to seek leave to add them as Respondents in
`order to obtain discovery Respondents were shielding. See Order No. 27 at 6–8. Despite the
`expansion of the case to include these additional parties, the fact discovery deadline remained
`unchanged. Even under compressed timelines, Respondents continued to delay. They withheld
`more than 100,000 documents until after the deadline for Complainants to serve their final
`contentions. These late productions were not minor or incidental—they included highly relevant
`documents, emails, and WeChat messages detailing sales strategies, ATF communications, and
`other unlawful operations. This last-minute data dump was an attempt to frustrate the process.
`Given the number of parties involved, adjustments to the evidentiary hearing and target
`dates were expected. However, these extensions had nothing to do with discovery disputes. They
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`were made solely to accommodate routine scheduling conflicts or were granted at the joint request
`of the parties. See Order No. 37 at 2; Order No. 38 at 1–2.
`Contrary to Respondents’ claim that Complainants terminated due to unfavorable rulings,
`Complainants informed Respondents of their intent to terminate the Investigation based on
`withdrawal of the Complaint before those rulings issued. At a meet and confer on January 8, 2025,
`Complainants informed Respondents of their intent to terminate the Investigation, and after the
`parties conferred, Complainants filed their motion on January 10, 2025, one month before the
`scheduled evidentiary hearing. On the same day—after the parties had conferred and just hours
`before Complainants filed their motion—the Chief ALJ issued orders denying then-pending
`summary determination motions and Complainants’ motions for reconsideration of and leave to
`appeal a prior discovery order. Notably, the ALJ’s order on the pending summary determination
`motions actually favored Complainants.
`Respondents did not (and still do not) oppose the motion to terminate, but they requested
`that the Chief ALJ reconsider the Commission’s precedent concerning termination with prejudice
`and sought the imposition of six—and only six—conditions for termination. EDIS Doc. ID 841324
`at 4. At Respondents’ request, the Chief ALJ granted them leave to submit supplemental briefing
`for the narrow purpose of providing a “more detailed explanation of the authority that supports
`their request for the investigation to be terminated with prejudice or with certain conditions.” Order
`No. 57 at 2. In their Supplemental Response, Respondents added a new, unauthorized request for
`a seventh condition—that Complainants be required to “show cause why a new investigation
`should be instituted” should they file a new complaint. EDIS Doc. ID 842379 at 4.
`On March 7, 2025, the Chief ALJ issued his ID terminating the Investigation but declining
`to terminate with prejudice or with conditions. See Order No. 58. The ID explained that
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`Respondents’ request for termination with prejudice or conditions contradicted years of
`Commission precedent and practice. ID at 4–12. The ID repeatedly noted that Respondents failed
`to cite authority supporting the conditions sought. See id. at 5–7, 9–12.
`B. The 1410 Investigation
` Separately, on June 11, 2024, Complainants and two affiliates filed a complaint alleging a
`violation of Section 337 based on patent infringement. Inv. No. 337-TA-1410, Compl., EDIS Doc.
`ID 823475. The two investigations differ significantly. The 1410 complaint alleges patent
`infringement, not unfair competition claims under Section 337(a)(1)(A). Id. ¶¶ 104–07. Other than
`some overlapping respondents, the other investigation bears no relationship to this Investigation.
`III. STANDARD OF REVIEW
`A party seeking review of an initial determination must “specify the issues upon which
`review of the initial determination is sought” and must, “with respect to each such issue, specify
`one of more of the following grounds” upon which it seeks review:
`(i) That a finding or conclusion of material fact is clearly erroneous;
`(ii) That a legal conclusion is erroneous, without governing precedent, rule or
` law, or constitutes an abuse of discretion; or
`(iii) That the determination is one affecting Commission policy.
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`19 C.F.R. § 210.43(b)(1). The Commission may grant a petition and order review if an error under
`Section 210.43(b)(1) exists “or if the petition raises a policy matter connected with the initial
`determination” which is “necessary or appropriate to address.” Id. § 210.43(d)(2).
`IV. ARGUMENT
` Respondents fail to identify upon which grounds they seek review and fail to clearly assert
`that their Petition raises a policy matter. They do not cite Commission Rule 210.43 at all. No matter
`their intended basis for seeking review, however, they fail to show the ID contains erroneous legal
`conclusions or that the ID implicates a determination affecting Commission policy. Accordingly,
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`the Commission should deny the Petition.
`A. The ID Correctly Denied Respondents’ Request to Terminate the Investigation
`With Prejudice
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`As the ID explained, Respondents conceded that “their request to terminate this
`investigation with prejudice is contrary to the Commission’s action in other investigations.” ID
`at 4. Respondents now ask the Commission to overturn Bar Clamps and rewrite decades of
`precedent while failing to meaningfully address the central holding of Bar Clamps: The text of
`Section 337 precludes termination with prejudice. The ID correctly relied on established
`Commission precedent barring terminations with prejudice.
`1. Terminating an Investigation with Prejudice Contradicts the Statute
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`When interpreting a statute, “the first step is to look at the plain meaning of the statutory
`language.” Certain Sucralose, Inv. No. 337-TA-604, Order No. 11, Initial Determination, 2010
`WL 1634915, at *24 (Aug. 8, 2007). Section 337 contains mandatory language: “The Commission
`shall investigate any alleged violation of this section . . . .” 19 U.S.C. § 1337(b)(1) (emphasis
`added). Thus, terminating an investigation with prejudice “is not permitted under
`section 337(b)(1).” Bar Clamps, 2001 WL 36114993, at *2–3 (citing the text and legislative
`history of Section 337). The plain text of the statute supports a core purpose of the Commission:
`to investigate unfair competition. See id. To fully comply with the Commission’s investigative
`mandate, Bar Clamps held that, based on this text, “[i]f a complainant properly refiles a complaint
`that was previously withdrawn, and the Commission’s informal investigative activity indicates the
`probable availability of relevant information, then the Commission is obliged to investigate the
`refiled complaint.” 2001 WL 36114993, at *3 (emphasis added). Because Section 337 precludes
`termination with prejudice, the Commission need go no further to reject Respondents’ argument.
`In discussing Bar Clamps, Respondents do not challenge the Commission’s interpretation
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`of Section 337 that “shall investigate” mandates the Commission to investigate even refiled
`complaints. Instead, they offer an unsupported assertion that “Section 337 requires that complaints
`be investigated once; not twice.” Petition at 15. They cite no statutory provision or other authority
`supporting this claim. Finding the Commission is “obliged” to investigate even a “refiled
`complaint,” Bar Clamps already rejected Respondents’ recycled argument. 2001 WL 36114993,
`at *3. Further, the Commission did not complete an investigation in these circumstances. Though
`Respondents believe it “has largely fulfilled its statutory obligation to investigate RJR’s
`complaint,” there was no determination on the merits on any issue, let alone any merits decision
`after an evidentiary hearing. Petition at 15.
`2. Decades of Commission Decisions Refuse to Terminate Investigations
`with Prejudice—Even in So-Called “Advanced” Investigations
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`“[T]he Commission has an established precedent and procedure of not dismissing
`complaints with prejudice.” Certain Reusable Diapers, Inv. No. 337-TA-1077, Order No. 11, 2018
`WL 1905585, at *2 (Apr. 16, 2018); see Certain Integrated Circuits, Inv. No. 337-TA-920, Order
`No. 17, 2014 WL 5489294, at *2 (Oct. 16, 2014). The Commission routinely terminates
`investigations without prejudice—even in so-called “advanced” investigations. Bar Clamps
`upheld the termination of an investigation with no conditions, refusing to do so with prejudice,
`despite that the claims “ha[d] been the subject of full discovery, the submission of hearing exhibits,
`and prehearing briefing.” Bar Clamps, 2001 WL 36114993, at *3. Similarly, in Certain Blow-
`Molded Bag-in-Container Devices, the ALJ terminated the investigation without prejudice and
`with no conditions after the parties had completed “months of fact and expert discovery, a
`Markman hearing and order, submission of prehearing briefs, witness statements, and revised
`witness statements, and filing and resolution of numerous motions in limine and high-priority
`objections.” Inv. No. 337-TA-1115, Order No. 50, 2019 WL 2135961, at *1–2 (May 3, 2019).
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`ALJs have granted motions to terminate filed even later in the proceedings than was done
`here. In Certain Vaginal Ring Birth Control Devices, the ALJ granted a motion to terminate,
`without prejudice and with no terms or conditions, filed after the prehearing conference, less
`than one day before the evidentiary hearing was set to begin. See 2012 WL 193995, at *1; Inv.
`No. 337-TA-768, EDIS Doc. ID 469259, Hr’g Tr. 339:3–7, 339:25–340:3, 340:22–25. Examining
`the ID here in light of these similarly or more “advanced” investigations reveals no erroneous
`conclusion or decision contrary to Commission policy.
`Ignoring the procedural posture of these more recent decisions, Respondents focus on
`investigations from 30 or 40 years ago. See Petition at 8–10. To the extent Respondents suggest
`the Commission should return to a bygone era of permitting dismissals with prejudice, Bar Clamps
`already rejected this argument. Regardless, none of the cases Respondents cite support that the
`Commission should terminate any investigation, including this one, with prejudice.
` In a four-decade-old decision pre-Bar Clamps, the investigation was terminated, but
`not with prejudice, based on the complainant’s express “concession” that the unfair acts
`complained of did not injure a domestic industry. See Certain Ultrafiltration Membrane
`Sys., Inv. No. 337-TA-107, Comm’n Determination, 1982 WL 1034896, at *1–2
`(Mar. 11, 1982). Those are not the facts of this Investigation, where Complainants not
`only assert that Respondents’ acts injured them but submitted expert and fact testimony
`supporting this argument.
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` In a four-decade-old decision pre-Bar Clamps, termination occurred in part because the
`respondents phased out the accused products. See Certain Cardiac Pacemakers, Inv.
`No. 337-TA-162, Order No. 78, 1984 WL 273849, at *1–2 (July 26, 1984). Again,
`those are not the facts here; far from phasing out accused products, Respondents have
`continued their efforts to compete unfairly by changing brand names, mislabeling
`imports, and continuing to violate U.S. laws.
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`Other cases cited by Respondents involved parallel federal litigation or preserved the
`complainant’s ability to seek relief elsewhere:
` In a three-decade-old decision pre-Bar Clamps, the complainant had already sued the
`remaining respondents in district court, preserving its ability to raise the same claims
`in that lawsuit. See Certain Single In-Line Memory Modules, Inv. No. 337-TA-336,
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`Initial Determination, 1992 WL 811387, at *1–2 (June 18, 1992). There, the ALJ
`provided no reason for dismissing the claims with prejudice, the ALJ gave no indication
`of whether termination occurred close to trial, and the complainant expressly stated in
`its motion that it preserved its right to seek relief in a different forum. Id.
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` In a three-decade-old decision pre-Bar Clamps, a parallel district-court decision on the
`same issues was imminent, and the ALJ declined to dismiss with prejudice. Certain
`Lens Panels, Inv. No. 337-TA-353, Order No. 5, 1993 WL 852848, at *1–4 (Oct. 7,
`1993).
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` In a three-decade-old decision pre-Bar Clamps, the complainant had already lost on the
`merits in parallel district-court litigation. Certain Multibrand Infrared Remote Control
`Transmitters, Inv. No. 337-TA-363, Notice of Comm’n Determination, 1994 WL
`931670, at *2 (June 1, 1994) (hereinafter, “Remote Control Transmitters”). The ALJ
`terminated “with prejudice to refiling of the complaint unless the judgment of the U.S.
`District Court . . . is reversed, and without prejudice to refiling of the complaint if that
`judgment is reversed.” Id. at *6. Even there, the Commission later clarified that
`“whether termination of an investigation is styled with or without prejudice will have
`no effect on whether another investigation will be instituted upon a subsequently filed
`complaint. Rather, the Commission will, at such time as another complaint is filed,
`have to determine whether institution of an investigation is appropriate.” Id. at *3.1
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`3. Respondents’ Attempts to Analogize Terminations in Commission
`Investigations to Federal Court Dismissals Fail Because Section 337
`Actions Are Statutorily Distinct
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`Respondents ask the Commission to “apply the same principles that animate Article III
`district courts in analogous circumstances,” arguing this would require dismissing the
`Investigation with prejudice. Petition at 16. But this exact argument was squarely rejected in Bar
`Clamps. There, the ALJ initially adopted the view that Federal Rule of Civil Procedure 41(a)(2)
`should guide termination decisions. See Bar Clamps, Inv. No. 337-TA-429, Order No. 5, 2000 WL
`36112726, at *4 (Oct. 2, 2000), rev’d in part, Comm’n Op., 2001 WL 36114993. The Commission,
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`1 The Commission is not an Article III court; the concept of “dismissal with prejudice,” as that
`applies in district courts, simply does not apply with respect to Section 337 investigations. For
`example, the Commission recently stated that it “endeavors to realign its terminology with the
`language of section 337 and clarifies that it has ‘statutory authority’ to investigate an alleged
`violation, rather than ‘subject matter jurisdiction,’ ‘personal jurisdiction,’ and/or ‘in rem
`jurisdiction’ under Article III.” Certain Liquid Transfer Devices with an Integral Vial Adapter, Inv.
`No. 337-TA-1362, Comm’n Op. at 9 (July 26, 2024) (citations omitted).
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`however, reversed the ALJ’s decision and explicitly rejected this reasoning, holding that ALJs do
`not operate as Article III judges and are instead bound by the statutory mandate in Section 337—
`a constraint not applicable to federal courts. Bar Clamps, 2001 WL 36114993, at *2. The
`Commission also differs from an Article III court because it not only adjudicates cases but also
`“conducts informal investigative activity concerning the complaint.” Id. at *3. Thus, “[i]f a
`complainant properly refiles a complaint that was previously withdrawn, and the Commission’s
`informal investigative activity indicates the probable availability of relevant information, then the
`Commission is obliged to investigate the refiled complaint.” Id. (emphasis added).
`This statutory mandate reflects an intentional choice by Congress to empower the
`Commission with mandatory investigative authority broader than that of other agencies. For
`example, the Federal Trade Commission’s statutory authority to investigate is “discretionary,”
`while the Commission’s authority is “mandatory.” Jerry Cohen & Matthew McCullough, Initiating
`an Investigation and Institution and Preinstitution Activity, Int’l Trade Prac. § 6:1 (2024).
`Respondents entirely fail to address Bar Clamps’ differentiation between Article III courts
`and the Commission. Instead, they mischaracterize Remote Control Transmitters, claiming it
`endorsed treating dismissals as “functionally equivalent” to those with prejudice where a new
`complaint is filed after a prior investigation was well advanced. Petition at 16. But Remote Control
`Transmitters said no such thing. That decision merely noted that “the Commission will, at such
`time as another complaint is filed, have to determine whether institution of an investigation is
`appropriate.” 1994 WL 931670, at *3. That aligns with Bar Clamps, which held that “the
`Commission is obliged to investigate [a] refiled complaint” which “indicates the probable
`availability of relevant information”—even though the complainants in that case sought
`termination after “full discovery, the submission of hearing exhibits, and prehearing briefing.” Bar
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`Clamps, 2001 WL 36114993, at *3; see also Certain Blow-Molded Bag-in-Container Devices,
`2019 WL 2135961, at *1–2 (terminating investigation after discovery and submission of
`prehearing briefs, witness statements, and motions in limine); Certain Vaginal Ring Birth Control
`Devices, 2012 WL 193995, at *1 (same). Respondents cite no decision declining to institute a case
`due to the “advanced stage” of a prior investigation. Petition at 16. Respondents fail to demonstrate
`the ID contains erroneous conclusions or is otherwise contrary to Commission policy by following
`Commission practice set in Bar Clamps. See ID at 4.
`4. Respondents’ Policy and Efficiency Arguments Are Inapposite in
`Light of Section 337’s Text and Bar Clamps
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`Recognizing that settled Commission precedent precludes termination with prejudice,
`Respondents resort to various arguments to assert that the Commission should scrap decades of
`precedent—claiming otherwise would be “requiring the Commission to turn a blind eye to
`oppressive litigation tactics,” “inadequate to prevent procedural abuse,” and antithetical to
`“[f]airness.” Petition at 15–16. Respondents argue a change in Commission precedent is necessary
`in light of conduct they mischaracterize as “aggressive,” “unorthodox and improper.” Id. at 18.
`These concerns are misplaced, as the Commission is constrained by Section 337’s statutory
`mandate to investigate all properly filed complaints. See Bar Clamps, 2001 WL 36114993, at *2–
`3. Respondents’ request to terminate with prejudice contradicts Section 337. “[N]o amount of
`policy-talk can overcome a plain statutory command.” Niz-Chaves v. Garland, 593 U.S. 155, 171
`(2021); see Pub. Emps. for Env’ t Resp. v. Regan, No. 24-2194 (JEB), 2024 WL 5075828, at *6
`(D.D.C. Dec. 11, 2024) (“Whether or not [a construction of a statute is ‘bizarre’], it is the clear
`command of the statutory language, which the Court is bound to follow.”).
`Even if the Commission considered Respondents’ arguments, they fail. ALJs routinely
`grant motions to terminate filed even late in investigations because “when a complainant seeks to
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`terminate based on a withdrawal of the complaint, public policy supports termination in order to
`conserve public and private resources.” Certain Stainless Steel Prods., Inv. No. 337-TA-933, Order
`No. 19, 2016 WL 1461068, at *1 (Mar. 3, 2016); see Certain Road Constr. Machs., Inv. No. 337-
`TA-1088, Order No. 38, 2018 WL 5279176, at *1 (Oct. 16, 2018) (finding that termination of
`claims following evidentiary hearing but prior to issuance of initial determination “will conserve
`public and private resources”). The same holds true here. Further, Bar Clamps recognized that
`terminations with prejudice preclude the Commission from investigating all instances of unfair
`competition, including in refiled cases—hampering its ability to perform its critical investigative
`function. See Bar Clamps, 2001 WL 36114993, at *2–3. This public interest in investigating unfair
`competition in all its forms sets the Commission apart from other forums.
`Respondents assert that “nothing in Section 337 requires the Commission to ‘investigate’
`every complaint by instituting a full, formal investigation.” Petition at 16. But this misses the point.
`As Bar Clamps held, if this “informal investigative activity indicates the probable availability of
`relevant information, then the Commission is obliged to investigate [even a] refiled complaint.”
`2001 WL 36114993, at *3. During the pre-institution phase, the Commission may seek information
`to determine if a complaint alleges the same claims as brought in a prior investigation with a final
`decision on the merits. For example, in Certain Passive Optical Network Equipment Supporting
`NETCONF, the Commission sought supplemental information to determine whether issue
`preclusion might bar institution—an inquiry it could not have made if bound by a prior termination
`with prejudice. See EDIS Doc. ID 842379 Ex. 2. But here, no decision on the merits occurred.2
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`2 Respondents cite Certain Semiconductors and Certain Stabilized Hull Units for the proposition
`that the Commission may restrict “the scope of a complaint when it issues the notice of
`investigation by instituting against only a subset of proposed respondents or causes of action.”
`Petition at 17. But in each instance, the Commission had the ability to institute an investigation if
`the complaints showed unfair competition occurred. Dismissing this Investigation with prejudice
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`Respondents posit, “If a party were permitted to withdraw complaints and refile them
`strategically, would any limit be imposed by the Commission?” Petition at 15. Bar Clamps
`answered this directly: respondents may raise defenses in response to a refiled complaint, and the
`Commission may evaluate whether refiling implicates the public interest. See ID at 11; Bar
`Clamps, 2001 WL 36114993, at *3.
`Respondents next assert “Reynolds’ motion to terminate this investigation immediately
`followed certain rulings that were adverse to [it],” which “suggests that Reynolds’ decision to
`withdraw the complaint in this investigation may be an improper attempt to avoid the
`consequences of unfavorable orders.” Petition at 15 (quoting ID at 10). But the record shows
`otherwise. Complainants informed Respondents of their intent to seek termination during a meet
`and confer on January 8, 2025—two days before the Chief ALJ issued the discovery rulings in
`question. The motion to terminate was filed on January 10, after that meet and confer, and well
`before the evidentiary hearing. Moreover, the portion of the ID quoted by Respondents followed
`this statement by recognizing that Bar Clamps still forecloses the possibility of terminating with
`conditions or with prejudice. See ID at 11. Additionally, the Chief ALJ also issued a favorable
`decision denying certain Respondents’ motion for summary determination, effectively keeping
`foreign Respondents in the Investigation in the face of undisputed evidence of rampant PACT
`violations.
`Finally, Respondents again air their unfounded grievances regarding the length of this
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`prior to a decision on the merits would remove that authority. In Semiconductors, the Commission
`narrowed the investigation not because the complainant had refiled the complaint but because
`“[t]he information provided with the complaint, supplement, and exhibits . . . does not sufficiently
`describe the specific instances of importation or sale.” EDIS Doc. ID 842379 Ex. 1 at 1–2. In
`Stabilized Hull Units, the ALJ addressed personal jurisdiction, mootness, and other issues, not
`termination, and merely reaffirmed that the Commission—not an ALJ—can adjust a complaint’s
`scope after filing. Inv. No. 337-TA-103, Order No. 5, 1981 WL 178568, at *1–3 (Aug. 13, 1981).
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`Investigation and their characterization of how discovery was conducted—none of which support
`their request to overturn Commission precedent. Petition at 18. Their complaints about discovery
`and scheduling have no legal relevance. The Chief ALJ found good cause for every scheduling
`modification, many of which Respondents joined or proposed. See, e.g., Order No. 9; Joint Mot.
`to Modify Proc. Sched., EDIS Doc. ID 823087 at 3 (Respondents agreeing “[t]here is good cause”);
`see also Order Nos. 32, 36–38. The target date was extended to accommodate unrelated scheduling
`conflicts—not discovery issues—and the evidentiary hearing was postponed at the parties’ joint
`request. See Order Nos. 37–38. And there are many decisions terminating investigations after
`rejecting similar complaints from the respondents. See Bar Clamps, 2001 WL 36114993, at *3
`(rejecting the “practical concerns about the unconditional dismissal” after “full discovery, the
`submission of hearing exhibits, and prehearing briefing”); Certain Blow-Molded Bag-in-Container
`Devices, 2019 WL 2135961, at *1–2 (rejecting the argument that “extraordinary circumstances
`warrant denial of [the motion to terminate] because, after the completion of months of fact and
`expert discovery, a Markman hearing and order, submission of prehearing briefs, witness
`statements, and revised witness statements, and filing and resolution of numerous motions in
`limine and high-priority objections, public and private resources would be wasted, rather than
`conserved, by permitting ABI to withdraw its complaint at this late hour without prejudice”).
`Even with these extensions, Respondents’ claims that this Investigation was “unusually
`prolonged” are unfounded. The target date—October 23, 2025—reflects a 22-month timeline,
`which is shorter than several other recent investigations.3 See Order No. 38 at 2–3. Given
`scheduling conflicts, joint requests to extend the target date, the number of parties, and issues, this
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`3 Section 337 Statistics: Average Length of Investigations, ITC (Feb. 3, 2025),
`https://www.usitc.gov/intellectual_property/337_statistics_average_length_investigations.htm
`(showing that the longest investigations in 2019–2024 all exceeded 22 months).
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`Investigation was not “unusually prolonged,” as Respondents claim. Petition at 2.
`B. The ID Correctly Declined to Impose Any Conditions on Termination
`
`The ID correctly rejected all of Respondents’ requested conditions on termination,
`providing sound reasoning for doing so. See ID at 5–12. Respondents initially proposed six
`conditions for termination but failed to explain why each condition was appropriate. See EDIS
`Doc. ID 841324 at 4 (listing six conditions); id. at 12. In their Supplemental Response,
`Respondents still failed to address each condition specifically, ignoring contrary authority in the
`process, and even requested a new seventh condition, which the Chief ALJ correctly found to be
`waived. EDIS Doc. ID 842379 at 15–19; ID at 5 n.2. Now, at their third bite at the apple,
`Respondents again ignore numerous decisions explicitly rejecting many of their proposed
`conditions and attempt to resurrect conditions they barely deemed worthy of defending before the
`Chief ALJ. Respondents also appear to argue for additional conditions beyond the six they initially
`proposed. The Commission should reject these conditions, as the ID did. Respondents’ proposed
`conditions would usurp the Commission’s institution discretion and authority.