UNITED STATES INTERNATIONAL TRADE COMMISSION
`Washington, D.C.
`
`Before Delbert R. Terrill
`Administrative Law Judge
`
`In the Matter of
`
`CERTAIN PLASMA DISPLAY PANELS
`AND PRODUCTS CONTAINING SAME
`
`RESPONSE OF THE COMMISSION INVESTIGATIVE STAFF TO COMPLAINANTS’
`MOTION FOR COSTS AND ATTORNEY FEES
`
`On June 21,2001, Complainants Competitive Technologies, inc. (“Competitive”) and
`
`._s
`1
`
`! A &. rn
`
`The Board of Trustees of the University of Illinois (collectively, “Complainants”) moved under
`Commission Rules 210.4(d) and 210.34(~)(5) (19 C.F.R. $6 210.4(d) and 210.34(~)(5)) for costs,
`
`including attorneys’ fees, related to Complainants’ motion for sanctions against Respondents for
`
`violation of the protective order in place in this investigation. Motion Docket No. 445-26. The
`
`Commission Investigative Staff opposes the motion.
`
`Complainants’ motion for sanctions for Respondents’ violation of the protective order
`
`(Motion 445-7) was, in large part, granted by Judge Morriss. Order No. 15 (May 8,2001). The
`
`motion was ruled upon after extensive briefing by parties regarding the factual circumstances
`
`surrounding the inadvertent release of confidential business information to in-house personnel
`
`of the Fuj itsu Respondents.’ After considering this extensive record, Judge Morris imposed
`
`sanctions in Order No. 15, declining, however, to impose all the sanctions requested by
`
`Respondents in this investigation are Fujitsu Limited, Fujitsu General Limited, Fujitsu
`1
`General America Corp., Fujitsu Microelectronics, Inc., and Fujitsu Hitachi Plasma Display Ltd.
`
`

`
`‘j .
`. ,
`
`i
`
`a
`
`-
`
`
`
`
`2
`
`Complainants.2 This suggests that imposing a further sanction of costs and fees at this time
`
`would be inappropriate.
`
`At the outset, the Staff notes that it is unclear whether there is authority to issue monetary
`
`sanctions in the form of costs and attorneys’ fees for a violation of the protective order in a
`
`Section 337 proceeding. Commission Rule 210.34(c) (19 C.F.R. tj 210.34(c)) sets forth the
`
`possible sanctions that may be imposed on a person who violates the protective order. The
`
`enumerated sanctions are all non-monetary in nature, ending with subsection (5) which provides:
`
`(5) Sanctions of the sort enumerated in tj 210.33(b), or such other
`action as may be appropriate.
`
`Rule 210.33(b) in turn is entitled Non-monetary Sanctions for Failure to Comply with an Order
`
`Compelling Discovery. 19 C.F.R. § 210.33@). By contrast, Rule 210.33(c) is entitled Monetary
`
`Sanctions for Failure to Make or Cooperate in Discovery. 19 C.F.R. tj 210.33(c). Insofar as the
`
`Commission, in promulgating Rule 210.34(~)(5), referred only to the rule providing for non-
`
`monetary sanctions and not to the rule providing for monetary sanctions, it is questionable
`
`whether the rule’s broad language allowing “such other action as may be appropriate” should be
`
`used as the basis for imposing monetary sanctions for the violation of a protective order where
`
`the Commission had the opportunity to provide for monetary sanctions but did not do so.
`
`Moreover, the violation of the protective order in this investigation, while sanctionable,
`
`does not appear to be of a nature such as to warrant the imposition of monetary sanctions. When
`
`monetary sanctions have been imposed for failure to comply with a discovery order, it has been
`
`Specifically, Judge Morris declined to retract the subpoenas issued to Matsushita Electric
`2
`Corporation of America (L‘MECA”), Plasmaco, Inc., and Dr. Larry F. Weber.
`
`

`
`3
`
`after a finding that the case involved extraordinary circumstances. Certain Hardware Logic
`
`Emulation Systems and Components Thereof; Inv. No. 337-TA-383, Order No. 96 (September 9,
`
`1997) (“Emulation Systems”) at 74-75 .3 In Emulation Systems, the Judge found that the
`
`respondents had, on numerous occasions, failed to comply with discovery orders, set forth
`
`inaccurate information at the hearing on temporary relief, provided accurate information only
`
`after the hearing on temporary relief, verified “plainly inaccurate” responses to interrogatories,
`
`and failed to conduct a reasonable inquiry into the accuracy of a key exhibit in a timely manner.
`
`Emulation Systems at 75-76. The Judge further found that this conduct needlessly increased the
`
`cost of litigation for complainant, the Staff, and the Commission. Emulation Systems at 76.
`
`Accordingly, the Judge concluded that monetary sanctions would be directly related to the
`
`violations at issue and ordered respondents to pay certain costs and attorneys’ fees of the
`
`complainant, as well as certain costs of the Staff. Emulation Systems at 76-78.4
`
`The Staff submits that the violation of the protective order in this investigation has not
`
`involved extraordinary circumstances like those found in Emulation Systems. While the
`
`Complainants cite the recommended determination in Certain Salinomycin Biomass and
`3
`Preparations Containing Same, Inv. No. 337-TA-370 (May 14,1997) (“‘Salinomycin”) in support
`of their motion for additional sanctions. However, on February 18, 1998, the Commission
`vacated the recommended determination upon which Complainants rely. Salinomycin,
`Termination of Sanctions Proceeding; Vacatur of Recommended Determination; Cancellation of
`Commission Hearing, 63 Fed. Reg. 9577 (February 25, 1998). For this and other reasons, the
`recommended determination in Salinomycin cannot serve as support for the additional sanctions
`Complainants seek.
`
`In Emulation Systems, the Staff declined to request costs, and that issue became moot.
`4
`However, the complainant in that investigation did collect $425,000 in costs and attorneys’ fees
`for the discovery abuse. Emulation Systems, Order No. 106 (July 2 1 , 1998).
`
`

`
`4
`
`violation was sanctionable, and indeed, has been sanctioned by Judge Morriss, Fujitsu's counsel
`
`has not demonstrated the degree of disreputable conduct that was found in Emulation Systems.
`
`Further, the violation of the protective order has not resulted in significant and unnecessary
`
`additional litigation as occurred in Emulation Systems. In short, the circumstances of this case
`
`are not the sort under which the Commission has imposed monetary sanctions in the past and it
`
`would be inappropriate to do so here as a sanction for violating the protective order.
`
`Complainants also assert that costs and attorneys' fees are warranted under Commission
`Rule 210.4(d) (19 C.F.R. 0 210.4(d)). Rule 210.4(d) is the Commission's analog to Rule 11 of
`
`the Federal Rules of Civil Procedure and provides that sanctions may be imposed when it is
`
`determined that a party has engaged in conduct which constitutes abuse of Commission process.
`
`Specifically, the rule provides that sanctions may be imposed upon a determination that Rule
`
`210.4(c) has been violated. Rule 210.4(c) provides:
`
`(c) Representations By presenting to the presiding administrative
`law judge or the Commission (whether by signing, filing,
`submitting, or later advocating) a pleading, written motion , or
`other paper, an attorney or unrepresented party or proposed party is
`certiQing that to the best of the person's knowledge, information,
`and belief, formed after an inquiry reasonable under the
`circumstances --
`(1) It is not being presented for any improper purpose, such as to
`harass or to cause unnecessary delay or needless increase in the
`cost of the investigation or related proceeding;
`(2) The claims, defenses, and other legal contentions therein are
`warranted by existing law or by a non-frivolous argument for the
`extension, modification, or reversal of existing law or the
`establishment of new law;
`(3) The allegations and other factual contentions have evidentiary
`support or, if specifically so identified, are likely to have
`evidentiary support after a reasonable opportunity for fbrther
`investigation or discovery; and
`
`

`
`(4) The denials of factual contentions are warranted on the
`evidence or, if specifically so identified, are reasonably based on a
`lack of information or belief.
`19 C.F.R. 9 210.04(c).
`
`Complainants do not identify the signed “pleading, written motion, or other paper” that
`
`has been presented to the Judge and which violates Rule 210.4(c). Indeed, the motion almost
`
`exclusively refers to the interaction between counsel for Complainants and counsel for Fujitsu,
`
`making only a general reference to “Respondents’ interference with Complainants’ and the
`
`Administrative Law Judge’s ability to discover the facts surrounding the violation.” Motion
`
`memorandum at 7. Rule 210.4 is designed to deter, through sanctions, the submission of
`
`frivolous filings in Section 337 investigations. In the absence of a signed “pleading, written
`
`motion, or other paper,” the provisions of Rule 2 10.4 simply do not come into play.5
`
`I
`
`Complainants again cite to the vacated recommended determination in Salinomycin as
`5
`support for its assertion that sanctions under Rule 2 10.4 may be imposed. While the
`recommended determination in Salinomycin has no precedential value, the Staff notes that the
`Judge imposed sanctions under Rule 21 0.4 in that investigation after determining that the
`complaint - a “pleading” - failed to comply with Rule 2 10.4(c). Here, no sanctionable pleading
`has been identified.
`
`

`
`For the reasons set forth herein, the Staff respectfully submits that Complainants’ motion
`
`for costs and attorneys’ fees should be denied.
`
`Respectfully submitted, 7L -7Zaw
`
`Lynn I. Levine, Director
`T. Spence Chubb, Supervisory Attorney
`Thomas S. Fusco, Investigative Attorney
`
`OEce of Unfair Import Investigations
`U.S. International Trade Commission
`(202) 205-2571
`Facsimile: (202) 205-2158
`
`July 2,2001
`
`

`
`> _I '
`- , ,
`
`"
`
`,
`
`<
`
`"
`
`
`
`.
`
`
`
`I.
`
`0
`
` Certain Plasma Display Panels and Products Containing Same
`
`4.
`
`L
`
`Investigation No. 337-TA-445
`
`CERTIFICATE OF SERVICE
`
`The undersigned certifies that on July 2,200 1, he caused the foregoing RESPONSE OF THE COMMISSION
`INVESTIGATIVE STAFF TO COMPLAINANTS' MOTION FOR COSTS AND ATTORNEY FEES to be
`filed with the Commission (original and 6 copies), served by hand upon Administrative Law Judge Delbert R. Terrill
`(2 copies), and served upon the parties (1 copy each) in the manner indicated below:
`
`For Complainants Board of Trustees of the University of Illinois and Competitive Technologies, Inc.:
`Paul E. Schaafsma, Esq.
`Charles F. Schill, Esq.
`Joseph M. Talarico, Esq.
`Larry L. Shatzer, 11, Esq.
`Foley & Lardner
`Foley & Lardner
`One IBM Plaza
`3000 K Street, N.W.
`330 North Wabash
`Suite 500
`Suite 3300
`Washington, D.C. 20007-5109
`Chicago, Illinois 6061 1
`Phone: (202) 672-5300
`Phone: (3 12) 755-1900
`Fax: (202) 672-5399
`BY FACSIMILE AND FIRST CLASS MAIL
`Fax: (312) 755-1925
`BY FACSIMILE AND FIRST CLASS MAIL
`
`For Respondents Fujitsu Limited, Fujitsu General Limited, Fujitsu General America Corp., Fujitsu
`Microelectronics, Inc., and Fujitsu Hitachi Plasma Display Ltd.:
`Karl Kramer, Esq.
`G. Brian Busey, Esq.
`Morrison & Foerster LLP
`Bryan A. Schwartz, Esq.
`755 Page Mill Road
`Morrison & Foerster LLP
`Palo Alto, California 94304-1 01 8
`2000 Pennsylvania Avenue, N.W.
`Phone: (650) 813-5600
`Washington, D.C. 20006-1888
`Fax: (650) 494-0792
`Phone: (202) 887-1500
`BY FACSIMILE AND FIRST CLASS MAIL
`Fax: (202) 887-0763
`BY FACSIMILE AND FIRST CLASS MAIL
`
`Christopher E. Chalsen, Esq.
`Milbank, Tweed, Hadley & McCloy LLP
`1 Chase Manhattan Plaza
`New York, New York 10005-1413
`Phone (212) 530-5000
`Fax: (212) 530-5219
`BY FACSIMILE AND FIRST CLASS MAIL
`
`-
`
`Thomas S. Fusco
`Commission Investigative Attorney
`OFFICE OF UNFAIR IMPORT INVESTIGATIONS
`US. International Trade Commission
`500 E Street, S.W., Suite 401
`Washington, D.C. 20436
`(202) 205-2571
`(202) 205-2158 (fax)