UNITED STATES INTERNATIONAL TRADE COMMISSION
`WASHINGTON, D.C.
`
`Before the Honorable David P. Shaw
`Administrative Law Judge
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`In the Matter of
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`CERTAIN TONER CARTRIDGES AND
`COMPONENTS THEREOF
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`Investigation No. 337-TA-829
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`MOTION TO SUSPEND THE PROCEDURAL SCHEDULE AND
`FOR LEAVE TO FILE A MOTION FOR SUMMARY
`DETERMINATION OF VIOLATIONS BY DEFAULTING
`RESPONDENTS AND ENTRY OF A GENERAL EXCLUSION ORDER
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`Pursuant to 19 C.F.R. § 210.15, Complainants Canon Inc., Canon U.S.A., Inc., and
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`Canon Virginia, Inc. (collectively, “Canon”) hereby move for a suspension of the Procedural
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`Schedule in this Investigation (Order No. 6, as amended by Order No. 16), and leave to file a
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`motion for summary determination of violations by those respondents who have been found to be
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`in default in this investigation and entry of a general exclusion order. Canon respectfully
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`submits that such a suspension and leave are proper because, concurrently with the filing of this
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`Motion, Canon has moved for termination of the investigation with respect to the last remaining
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`respondent and has included in that motion a declaration pursuant to Commission Rule
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`210.16(c)(2) that it is seeking a general exclusion order. Canon can make the showing of
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`substantial, reliable and probative evidence and other factors required by Commission Rule
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`210.16(c)(2) for a general exclusion order in the most efficient and streamlined manner through a
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`summary determination motion, and believes that its summary determination motion will obviate
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`the need for an evidentiary hearing, thereby conserving the resources of the Administrative Law
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`Judge (“ALJ”) and the Office of Unfair Import Investigations (“OUII”). The OUII has been
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`informed of this motion, and is in support of it.
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`I.
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`PROCEDURAL BACKGROUND
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`On January 23, 2012, Canon filed a complaint against thirty-four respondents, requesting
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`an investigation to remedy widespread violations of Section 337 of the Tariff Act of 1930, as
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`amended, 19 U.S.C. § 1337, from the importation into the United States, sale for importation,
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`and/or sale within the United States after importation of infringing toner cartridges and
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`components thereof. The Commission issued a Notice of Investigation on February 22, 2012,
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`and a revised Notice of Investigation on February 23, 2012, which corrected a typographical
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`error in the original Notice. On July 17, 2012, Canon filed an Amended Complaint to substitute
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`a new respondent for an original respondent. In accordance with the Procedural Schedule,
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`Canon submitted its pre-hearing statement and brief on October 15, 2012, and the hearing is
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`currently scheduled to take place from November 26-30, 2012.
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`The deadline for filing summary determination motions in the investigation was
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`September 21, 2012, and on that date, Canon filed a Motion for Summary Determination that
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`Canon satisfies the Economic Prong of the Domestic Industry Requirement (Motion No. 829-34)
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`and a Motion for Summary Determination Regarding Importation by Green Project and Certain
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`of Green Project’s Defenses (Motion No. 829-33). Motion 829-34 has not been opposed by any
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`party to this investigation, and the OUII filed a Response in support of that Motion. Motion 829-
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`33, as to which the OUII also filed a Response in support, is believed to be moot in view of the
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`pending motion to terminate the investigation as to respondent Green Project, Inc. (“Green
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`Project”).
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`As of October 2, 2012, sixteen of the respondents in this Investigation have been
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`determined to be in default (“Defaulting Respondents”). See October 2, 2012 Notice of
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`Commission Determination Not to Review an Initial Determination Finding Certain Respondents
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`in Default. All respondents other than the Defaulting Respondents have been terminated from
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`this investigation or are the subject of pending motions to terminate.1 The last of such
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`respondents to become the subject of a motion to terminate was Green Project, as to whom an
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`unopposed joint motion to terminate the investigation based upon the entry of a consent order is
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`being filed concurrently with the instant motion. In that motion to terminate, Canon has made a
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`declaration pursuant to Commission Rule 210.16(c)(2) that it is seeking a general exclusion
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`order.
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`II.
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`GOOD CAUSE EXISTS TO SUSPEND THE PROCEDURAL SCHEDULE AND
`GRANT CANON LEAVE TO FILE A SUMMARY DETERMINATION MOTION
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`Commission Rule 210.16(c)(2) provides:
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`the termination of the
`In any motion requesting the entry of default or
`investigation with respect to the last remaining respondent in the investigation, the
`complainant shall declare whether it is seeking a general exclusion order. The
`Commission may issue a general exclusion order pursuant to section 337(g)(2) of
`the Tariff Act of 1930, regardless of the source or importer of the articles
`concerned, provided that a violation of section 337 of the Tariff Act of 1930 is
`established by substantial, reliable, and probative evidence, and only after
`considering the aforementioned public interest factors and the requirements of
`§ 210.50(c).
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`As of the time of the filing of the concurrent joint motion to terminate the investigation as
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`to Green Project, all other respondents in this Investigation were either found to be in default,
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`terminated from the investigation or the subject of a pending motion to terminate, making Green
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`Project the “last remaining respondent in the investigation” within the meaning of Commission
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`Rule 210.16(c)(2). Accordingly, in the joint motion to terminate the investigation as to Green
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`1 With one exception, all such terminations and motions to terminate are based upon Consent
`Order Stipulations. The one exception is Respondent Nukote Internacional de Mexico, S.A. de
`C.V., as to whom Canon filed a motion to terminate based upon a withdrawal of the complaint as
`to that respondent. On October 11, 2012, the ALJ issued an Initial Determination granting that
`motion. See Order No. 18.
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`Project, Canon included, pursuant to Rule 210.16(c)(2), the requisite declaration that it is seeking
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`a general exclusion order.
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`Canon now wishes to make a showing of “substantial, reliable, and probative evidence”
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`of violations by each of the sixteen Defaulting Respondents, and to establish the existence of the
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`requirements of Commission Rule 210.50(c) that will enable the Commission to issue a general
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`exclusion order pursuant to Section 337(g)(2). As noted above, Canon believes that the most
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`streamlined and efficient way of doing so is through the mechanism of a summary determination
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`motion, which it believes would resolve all issues in this investigation. In such a summary
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`determination motion, Canon would present, among other things, evidence of importation of by
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`each of the Defaulting Respondents, evidence of infringement by each of the Defaulting
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`Respondents and evidence that a general exclusion order is necessary to prevent circumvention
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`of a limited exclusion order and because there is a pattern of widespread violation of Section 337
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`and it is difficult to identify the source of infringing products. Canon would also present
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`evidence that Canon satisfies the technical prong of the domestic industry requirement.2
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`The hearing for this Investigation is scheduled to run from November 26-30, 2012, and
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`the hearing-related deadlines—including, for example, the October 29, 2012 deadline by which
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`the OUII must file its pre-hearing statement and brief and submit its direct exhibits—are quickly
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`approaching. Suspending the Procedural Schedule will not prejudice any party in the
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`investigation, especially given the absence of active respondents. Indeed, given Canon’s
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`intention to file a summary determination motion that it believes will resolve all issues,
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`suspending the Procedural Schedule will serve to conserve the resources and avoid wasting the
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`time of the ALJ and the OUII. Requests to suspend the procedural schedule have been granted
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`2 As noted above, Canon has already filed Motion No. 829-33 for Summary Determination that
`Canon Satisfies the Economic Prong of the Domestic Industry Requirement.
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`under similar circumstances. See, e.g., Certain Inkjet Ink Supplies and Components Thereof, Inv.
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`No. 337-TA-730, Order No. 10, 2010 WL 5199613, at *1 (Dec. 21, 2010).
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`As to Canon’s request for leave to file a summary determination motion, “[u]nder
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`exceptional circumstances and upon motion, the presiding administrative law judge may
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`determine that good cause exists to permit a summary determination motion to be filed out of
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`time.” 19 C.F.R. § 210.18(a). Here, at the time of the deadline for summary determination
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`motions in the Procedural Schedule (i.e., September 21, 2012), several respondents remained in
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`this investigation, and it appeared that at least one respondent, Green Project, would remain
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`active such that an evidentiary hearing would be necessary. Now, and culminating with the
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`concurrently-filed motion to terminate the investigation as to the last remaining respondent,
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`Green Project, all respondents either have been found to be in default, have been terminated or
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`are the subject of a pending motion to terminate. With no remaining active respondents, Canon
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`respectfully submits that the hearing should no longer be necessary, and that it would conserve
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`the resources of the ALJ and the OUII to permit Canon to make a motion for summary
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`determination, through which all remaining issues may be resolved. Canon therefore
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`respectfully submits that good cause exists here to permit it to file its summary determination
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`motion out of time. See, e.g., Certain Handbags, Luggage, Accessories, and Packing Thereof,
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`Inv. No. 337-TA-754, Comm’n Op. at 2 (I.T.C. Nov. 2, 2011) (reversing administrative law
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`judge’s denial of leave to file summary determination of violation and request for entry of
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`general exclusion order out of time where there were no active respondents remaining).
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`Canon notes that the requested suspension of the Procedural Schedule and the granting of
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`leave to file a summary determination motion will not adversely impact the Procedural
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`Schedule’s February 28, 2013 deadline for the Final Initial Determination and the June 28, 2013
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`deadline for the Target Date. More specifically, Canon proposes that it file its summary
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`determination motion by no later than November 9, 2012, and further proposes that the OUII (the
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`only other active party remaining in this investigation) submit its response to Canon’s summary
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`determination motion within three weeks of that date, namely by November 30, 2012.3 Under
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`such a schedule, Canon’s summary determination motion would be fully-briefed and responded
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`to by November 30, 2012, which is the currently-scheduled last day of the hearing, and some
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`three weeks before the currently-scheduled December 21, 2012 deadline for the close of post-
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`hearing briefing. Thus, under Canon’s proposal, the ALJ and the OUII not only would no longer
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`need to expend the resources of participating in a hearing, but the ALJ would also have more
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`time between the November 30, 2012 close of briefing on Canon’s summary determination
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`motion and the February 28, 2013 deadline for the Final Initial Determination than the ALJ
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`would have between the December 21, 2012 close of post-hearing briefing and the Final Initial
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`Determination deadline.
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`III.
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`CONCLUSION
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`Based on the foregoing, Canon respectfully requests suspension of all remaining
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`deadlines in the Procedural Schedule and leave to file a motion for summary determination of
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`violations by the Defaulting Respondents and entry of a general exclusion order.
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`3 The OUII is in agreement with this proposed schedule for summary determination motion
`briefing. Should the ALJ deemed it advisable, Canon could file its summary determination
`motion in advance of November 9, 2012.
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`Dated: October 24, 2012
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`Respectfully submitted,
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`/s/ Edmund J. Haughey
`Nicholas M. Cannella
`Michael P. Sandonato
`FITZPATRICK, CELLA, HARPER & SCINTO
`1290 Avenue of the Americas
`New York, New York 10104-3800
`Phone: 212-218-2100
`Fax: 212-218-2200
`
`Edmund J. Haughey
`Stephen E. Belisle
`Seth E. Boeshore
`FITZPATRICK, CELLA, HARPER & SCINTO
`975 F Street, N.W.
`Washington, D.C. 20004
`Phone: 202-530-1010
`Fax: 202-530-1055
`
`Counsel for Complainants
`Canon Inc., Canon U.S.A., Inc. and
`Canon Virginia, Inc.
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`CERTIFICATE OF SERVICE
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`I hereby certify that copies of the foregoing MOTION TO SUSPEND THE PROCEDURAL
`SCHEDULE AND FOR LEAVE TO FILE A MOTION FOR SUMMARY
`DETERMINATION OF VIOLATIONS BY DEFAULTING RESPONDENTS AND
`ENTRY OF A GENERAL EXCLUSION ORDER were served, pursuant to Commission
`regulations, on the following parties as indicated below:
`
`The Honorable James R. Holbein
`Secretary to the Commission
`U.S. INTERNATIONAL TRADE COMMISSION
`500 E Street, SW, Room 112
`Washington, DC 20436
`
`The Honorable David P. Shaw
`Administrative Law Judge
`U.S. INTERNATIONAL TRADE COMMISSION
`500 E Street, SW, Room 317-O
`Washington, DC 20436
`
`Pyong W. Yoon, Esq.
`Attorney-Advisor to the Honorable David P. Shaw
`U.S. INTERNATIONAL TRADE COMMISSION
`500 E Street, SW, Room 317-P
`Washington, DC 20436
`
`Lisa A. Murray, Esq.
`Office of Unfair Import Investigations
`U.S. INTERNATIONAL TRADE COMMISSION
`500 E Street SW, Suite 401
`Washington, DC 20436
`
`Via EDIS
`
`Via Hand Delivery
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`Via E-mail
`Pyong.Yoon@usitc.gov
`
`Via E-mail
`Lisa.Murray@usitc.gov
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`For Respondents Clover Holdings, Inc., Clover Technologies Group, LLC, Clover
`Vietnam Co., Ltd., Dataproducts USA, LLC, Dataproducts Imaging Solutions S.A. de
`C.V., CAU Acquisition Company, LLC, Dexxxon Digital Storage, Inc., Discount Office
`Items, Inc., Deal Express LLC, GreenLine Paper Company, Inc., Myriad Greeyn LLC,
`Office World, Inc., and OfficeWorld.com, Inc.:
`D. Sean Trainor
`KIRKLAND & ELLIS LLP
`655 Fifteenth Street, N.W.
`Washington, DC 20005-5701
`
`Via E-mail
`Clover_ITC_829@kirkland.com
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`For Respondent Green Project, Inc.:
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`Aaron Craig
`FOX ROTHSCHILD LLP
`1055 West 7th Street, Suite 1880
`Los Angeles, CA 90017
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`For Respondent OnlineTechStores.com, Inc.:
`Sang Dang
`BLUE CAPITAL LAW FIRM, P.C.
`600 Anton Boulevard, Suite 1000
`Costa Mesa, CA 92626
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`Respondent:
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`Nukote Internacional de Mexico, S.A. de C.V.
`Avenida del Parque 1175
`Monterrey Technology Park
`Cienega de Flores
`Nuevo Leon, Mexico 65550
`
`Via E-mail
`FoxITC829@foxrothschild.com
`
`Via E-mail
`sdang@bluecapitallaw.com
`
`Via First Class Airmail
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`Dated: October 24, 2012
`
`/s/ Seth E. Boeshore
`Seth E. Boeshore
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`FCHS_WS 8258934v1.doc
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