In the Matter of
`
`CERTAIN OPAQUE POLYMERS
`
`Investigation No. 337-TA-883
`
`Publication 4922
`August 2019
`U.S. International Trade Commission
`
`Washington, DC 20436
`
`

`

`U.S. International Trade Commission
`
`COMMISSIONERS
`
`Meredith Broadbent, Chairman
`Dean Pinkert, Vice Chairman
`Irving Williamson, Commissioner
`David Johanson, Commissioner
`Scott Kieff, Commissoner
`Rhonda Schmidtlein, Commissioner
`
`Address all communications to
`Secretary to the Commission
`United States International Trade Commission
`Washington, DC 20436
`
`

`

`U.S. International Trade Commission
`
`Washington, DC 20436
`www.usitc.gov
`
`In the Matter of
`
`CERTAIN OPAQUE POLYMERS
`
`Investigation No. 337-TA-883
`
`Publication 4922
`
`August 2019
`
`

`

`UNITED STATES INTERNATIONAL TRADE COMMISSION
`V
`Washington, D.C.
`
`I“ the Mam’ °f
`CERTAIN OPAQUE POLYMERS
`
`Investigation No. 337-TA-883
`
`NOTICE OF COMMISSION DECISION AFFIRMING GRANT OF DEFAULT
`AND SANCTIONS; FINDING A VIOLATION OF SECTION 337;
`.
`ISSUANCE OF A LIMITED EXCLUSION ORDER AND
`CEASE AND DESIST ORDER; TERMINATION
`OF THE INVESTIGATION
`
`AGENCY:
`
`U.S. Intemational Trade Commission.
`
`ACTION:
`
`Notice.
`
`SUMMARY: Notice is hereby given that the U.S. International Trade Commission affirmed, with
`modification, an initial determination (“ID”) (Order No. 27) by the presiding Administrative Law
`Judge (“ALJ”) granting a motion for default and sanctions. The Commission has found a
`violation of section 337 in this investigation and has issued a limited exclusion order prohibiting
`importation of certain opaque polymers manufactured using the Complainants’ misappropriated
`trade secrets. The Commission has also issued a cease and desist order directed to one
`respondent. The Commission has affirmed the assessment and calculation of sanctions including
`joint and several liability as to U.S. counsel, but has reversed the ID to theextent that it imposed
`joint and several liability on Turkish counsel. The Commission has thereby terminated the
`investigation with a finding of violation of section 337.
`
`FOR FURTHER INFORMATION CONTACT: Sidney A. Rosenzweig,Office of the
`General Counsel, U.S. International Trade Commission, 500 E Street, S.W., Washington, D.C.
`20436, telephone (202) 708-2532. Copies of non-confidential documents filed in connection
`with this investigation are or will be available for inspection during official business hours (8:45
`a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E
`Street, S.W., Washington, D.C. 20436, telephone (202) 205-2000. General infonrration
`concerning the Commission may also be obtained by accessing its Intemet server at
`httg://www.usitc.g0v. The public record forthis investigation may be viewed on the
`Commission's electronic docket (EDIS) at httQ.'//edis.usz'tc.gov. Hearing-impaired persons are
`advised that information on this matter can be obtained by contacting the Commission TDD
`terminal on (202) 205-1810.
`.
`
`l
`
`­
`

`

`The Commission instituted this investigation on June
`SUPPLEMENTARY INFORMATION:
`21, 2013, based on a complaint filed by the Dow Chemical Company of Midland, Michigan, and
`by Rohm and Haas Company and Rohm and Haas Chemicals LLC, both of Philadelphia,
`Permsylvania (collectively, “Dow”). 78 Fed. Reg. 37571 (June 21, 2013). The complaint
`alleged violations of section 337 ofthe Tariff Act of 1930, as amended (19 U.S.C. § 1337), by
`reason of the importation into the United States, the sale for importation, and the sale within the
`United States after importation of certain opaque polymers that infringe certain claims of four
`United States patents. The notice of investigation named five respondents, three of whom remain
`in this investigation: Organik Kimya San. ve Tic. A.$ of Istanbul, Turkey; Organik Kimya
`Netherlands B.V. of Rotterdam—Botlek,Netherlands; and Organik Kimya US, Inc., of Burlington,
`Massachusetts (collectively, “Organik Kimya”). 78 Fed. Reg. at 37571; Notice (Dec. 1, 2014)
`(tennination as to two of the five originally-named respondents). The complaint and notice of
`investigation were amended to add allegations of misappropriation of trade secrets. 78 Fed. Reg.
`71643 (Nov. 29, 2013). "The allegations of patent infringement have been withdrawn from the
`investigation. See Notice (Dec. 13, 2013) (withdrawal of two asserted patents); Notice (Dec. l,
`2014) (withdrawal of the remaining two asserted patents). The only remaining issues are Dow’s
`claims based on trade secret misappropriation and sanctions for discovery abuse.
`
`On May 19, 2014, Dow filed a motion for default and other sanctions against Organik
`Kimya for discovery abuse. On May 21, 2014, Organik Kimya filed a motion to terminate based
`upon a consent order stipulation. On July 8-9, 2014, the ALJ conducted a hearing on the pending
`motions. On October 20, 2014, the ALJ issued an ID (Order No. 27) (“the sanctions ID”) finding
`Organik Kimya in default, LmderCommission Rule 2l0.42(c), and ordering monetary sanctions
`jointly and severally against Organik Kimya and its counsel. Organik Kimya is represented by
`Finnegan, Henderson, Farabow, Garrett & Durmer, LLP (“Finnegan”), a law finn in Washington,
`D.C., and by Omiir Yarsuvat, an attorney in Istanbul, Turkey. The ALJ denied Organik Kimya’s
`motion to terminate the investigation based upon a consent order stipulation.
`
`On October 28, 2014, Organik Kimya filed a petition for review of the sanctions ID. The
`same day, Firmegan and Yarsuvat filed separate motions before the Commission to intervene in the
`investigation for the purpose of contesting joint liability for the monetary sanction. Finnegan and
`Yarsuvat also filed provisional petitions for review of the sanctions ID. On November 10, 2014,
`Fimiegan filed a motion for leave to file a reply in support of its motion to intervene, which Dow
`opposed.
`"
`"
`
`On December 16, 2014, the Commission granted the motions to intervene and determined
`to review the sanctions ID. The Commission notice granting review solicited further briefing on
`two questions concerning sanctions and on remedy, the public interest, and bonding.
`
`On December 30, 201.4,the parties—Dow, Organik Kimya, Finnegan, and
`Yarsuvat—filed opening briefs in response to the Commission notice.
`(Organik Kimya filed two
`briefs.) On January 7, 2015, the parties filed replies.
`(Dow filed two replies.)
`
`2
`
`

`

`Having examined the record of this investigation, including the ALJ’s sanctions ID, as well
`as the petitions to the Commission and their replies, and the briefs to the Commission and their
`replies, the Commission has determined to affirm the ID’s finding of Organik Kimya in default..
`See 19 U.S.C. § 1337(h); 19 C.F.R. §§ 210.16-.17, 210.33. The Commission has determined that
`the appropriate remedy is the issuance of a limited exclusion order prohibiting, for twenty-five
`years, the entry of opaque polymers manufactured using any of the misappropriated trade secrets
`identified in Dow’s Disclosure of Misappropriated Trade Secrets (Jan. 29, 2014) (listing trade i
`secrets A-ZZ). The Commission has also determined to issue a cease and desist order prohibiting
`Organik Kimya U.S., Inc. from, inter alia, importing or selling opaque polymers manufactured
`using any of the aforementioned misappropriated trade secrets. The Commission has also
`determined that the public interest factors enumerated in section 337(d) and (f), 19 U.S.C. §
`l337(d) & (f), do not preclude the issuance of the limited exclusion order or the cease and desist
`order. The Commission has determined that no bonding is required during the period of
`Presidential review, 19 U.S.C. § l337(j).
`
`The Commission has further determined to affirm the ALJ’s assessment and_calculationof
`attomeys’ fees and costs against Organik Kimya. The Commission has determined to affirm,
`with modification, the ALJ’s determination that Firmegan be held jointly and severally liable with
`Organik Kimya for those sanctions. The Commission has determined to reverse the sanctions ID
`to the extent that it imposed joint and several liability on Mr. Yarsuvat. The Cormnission’s
`reasoning in support of these determinations is provided in an accompanying Commission
`opinion. The investigation is terminated.
`
`Commissioner Schmidtlein dissents, for the reasons to be set forth in her separate opinion,
`as to the Commission’s determination on sanctions for Organik I(imya’s counsel. She otherwise
`joins the Commission’s determination as to Organik I_<limya’sdefault, the Commission remedial
`orders to be issued, and the liability of Organik Kimya for fees and costs.
`
`The Commission’s limited exclusion order and opinion were delivered to the President and
`the United States Trade Representative on the day of their issuance.
`
`The authority for the Commission’s detemiination is contained in section 337 of the Tariff
`Act of 1930, as amended (19 U.S.C. § 1337), and in Part 210 of the Commission’s Rules of
`Practice and Procedure (19 C.F.R. Part 210).
`By order of the Connnission.
`
`I
`
`Lisa R. Barton
`Secretary to the Commission
`
`Issued: April 17, 2015
`
`i
`
`3
`
`

`

`CERTAIN OPAQUE POLYMERS
`
`Inv. No. 337-TA-883
`
`CERTIFICATE OF SERVICE
`
`I, Lisa R. Barton, hereby certify that the attached COMMISSION NOTICE has been
`served upon the following parties as indicated, on April I7, 2015.
`
`Lisa R. Barton, Secretary
`U.S. International Trade Commission
`500 E Street, SW
`Washington, DC 20436
`
`On Behalf of Complainants Rohm and Haas Co.. Rohm
`and Haas Chemicals LLC. and The Dow Chemical
`Comgany:
`
`Paul F. Brinkman, Esq.
`QUINN EMANUEL URQUHART & SULLIVAN -LLP
`777 6*“Street, NW, 11*“Floor
`Washington, DC 20001
`
`e
`
`l:l Via Hand Delivery
`Via Express Delivery
`Cl Via First Class Mail
`[:1 Other:
`
`On Behalf of Respondents Organik Kimva San. ve Tic.
`A.S. Organik Kimva Netherlands B.V..,Organik Kimxg
`US. Inc.. Turk International LLC. and Aalborz
`Chemical LLC d/b/a All Chem:
`
`'
`Eric J. Fues, Esq.
`FINNEGAN, HENDERSON, FARABOW, GARRETT
`& DUNNER LLP
`901 New York Avenue, NW
`Washington, DC 20001
`
`[:1Via Hand Delivery
`Via Express Delivery
`El Via First Class Mail
`Cl Other:
`
`On Behalf of Respondents Intervenor Finnegan,
`Henderson. Farabow, Garrett & Dunner, LLP:
`
`A
`Smith R. Brittingham IV, Esq.
`FINNEGAN, HENDERSON, FARABOW, GARRETT
`& DUNNER LLP
`901 New York Avenue, NW
`Washington, DC 20001
`
`U Via Hand Delivery
`Via Express Delivery
`III Via First Class Mail
`El Other:
`
`

`

`CERTAIN OPAQUE POLYMERS
`
`Inv. N0. 337-TA-883
`
`On Behalf of Respondents Intervenor Omar Yarsuvat:
`
`James B. Altman, ESE].
`FOSTER, MURPHY, ALTMAN & NICKEL, P.C.
`L Stffifit, NW, Sllitfi
`Washington, DC 20036
`
`El Via Hand Delivery
`|Z| Via Express Delivery
`First Class
`U Other:
`
`E‘
`
`

`

`UNITED STATES INTERNATIONAL TRADE COMMISSION
`S Washington, D.C.
`
`In the Matter of
`
`Investigation No. 337-TA-883
`
`CERTAIN OPAQUE POLYMERS
`
`_
`
`LIMITED EXCLUSION ORDER
`
`The Commission has fotmd Respondents Organik Kimya San. ve Tic. A.S of Istanbul,
`
`Turkey; Organik Kimya Netherlands B.V. of Rotterdam-Botlek, Netherlands; and Organik Kimya
`
`US, Inc., of Burlington, Massachusetts (collectively, “Respondents”) in default as a sanction for
`
`discovery abuse pursuant to section 337(h) of the Tariff Act of 1930, as amended (19 U.S.C. §
`
`1337(h)) and’Commission mles 210.16 and 210.33 (19 C.F.R. §§ 210.16‘& 210.33). The
`
`Commission has thereby determined that there is a violation of section 337 in the unlawful
`
`importation, sale for importation and sale after importation by Respondents of opaque polymers
`
`manufactured by or for Respondents using any of the 52 misappropriated trade secrets listed in
`
`Dow’s Disclosure of Misappropriated Trade Secrets (Jan, 29, 2014) (listing trade secrets A-ZZ)
`
`(the “Dow Trade Secrets”).
`
`,
`
`.
`
`The Commission has determined that the appropriate form of relief includes a limited
`
`exclusion order prohibiting the unlicensed entry of opaque polymers manufactured using any of
`
`the Dow Trade Secrets by or on behalf of Respondents, or their affiliated companies, parents,
`
`subsidiaries, licensees, contractors or other related business entities, or their successors or assigns.
`
`The Commission has determined that the public interest factors enumerated in 19 U.S.C.
`
`§ l337(d) do not preclude issuance of the limited exclusion order. Finally, the Commission has
`
`

`

`determined that the bond during the period of Presidential review shall be zero.
`
`Accordingly, the Commission hereby ORDERS that:
`
`1.
`
`. Opaque polymers manufactured using any of the Dow Trade Secrets by or on
`
`behalf of, or imported by or on behalf of, Respondents, or their affiliated companies, parents,
`
`subsidiaries, licensees, contractors or other related business entities, or their successors or assigns,
`
`are excluded from entry for consumption into the United States, entry for consumption from a
`
`foreign-trade zone, or withdrawal from a warehouse for consumption, for a period of twenty-five
`
`(25) years from the effective date of this order, except under license of the owner of the Dow Trade
`
`Secrets, or as provided by law.
`
`i
`
`2.
`
`In accordance with 19 U.S.C. § 1337(1),the provisions of this Order shall not apply
`
`to opaque polymers that are imported by and for the use of the United States, or imported for, and
`
`to be used for, the United States with authorization or consent of the Govemment.
`
`3.
`
`Prior to the importation of organic polymers that may be subject to this Order, any
`
`of the persons listed in paragraph 1 of this Order must seek a ruling from the Commission to
`
`detennine whether the opaque polymers sought to be imported are covered by this Order.
`
`4.
`
`After a Commission determination of admissibility under paragraph 3 of this
`
`Order, persons seeking to import opaque polymers may certify to U.S. Customs and Border
`
`Protection (“CB-P”)that they are familiar with the terms of this Order, that they have made
`
`appropriate inquiry, and thereupon state that, to the best of their knowledge and belief, the
`
`products being imported are not subject to this Order based on that Commission detennination.
`
`CBP may require persons who have provided the certification described in this paragraph to
`
`provide such information necessary to substantiate that claim.
`
`1
`
`5.
`
`The Commission may modify this Order in accordance with the procedures
`
`2
`
`

`

`described in_Rule 210.76 of the Commission’s Rules of Practice and Procedure (19-C.F.R. _~
`
`§210.76).;-
`
`_-
`
`t
`
`.
`
`.
`
`I
`
`.
`
`.
`
`i 6.
`
`i The Secretary shall serve copies of this Order upon each party of record in this
`
`investigation and upon U.S. Customs and Border Protection.
`
`V- I
`
`V
`
`7.
`
`Notice of this Order shall.be published in the Federal Register.
`
`fBy Order of the Commission.
`
`_
`
`I
`
`'_
`
`_
`
`j
`
`'
`
`j
`
`j
`
`'
`
`_
`Issued:- April 17; 2015
`
`~
`
`'
`
`BBJTOII
`LlS£1R.
`Secretary to the Commission
`'
`
`3
`
`

`

`served upon the following parties as indicated, on April W17,2015.E
`
`CERTAIN OPAQUE POLYMERS
`
`Inv. N0. 337-TA-883
`
`CERTIFICATE OF SERVICE
`
`I, Lisa R. Barton, hereby certify that the attached COMMISSION ORDER has been
`
`Lisa R. Barton, Secretary
`U.S. Intemational Trade Commission
`500 E Street, SW
`Washington, DC 20436
`
`On Behalf of Complainants Rohm and Haas Co.. Rohm
`and Haas Chemicals LLC. and The Dow Chemical
`Company:
`
`Paul F. Brinkman, Esq.
`QUINN EMANUEL URQUHART & SULLIVAN LLP
`777 6'“ Street, NW, 11"‘Floor
`Washington, DC 20001
`
`U Via Hand Delivery
`Via Express Delivery
`[:1Via First Class Mail
`Cl Other:
`
`On Behalf of Respondents Organik Kimva San. ve Tie.
`A.S. Organik Kimva Netherlands B.V.. Organik Kimxg
`US. lnc., Turk International LLC. and Aalborz
`Chemical LLC d/b/a All Chem:
`
`Eric J. Fues, Esq.
`FINNEGAN, HENDERSON, FARABOW, GARRETT
`& DUNNER LLP
`901 New York Avenue, NW
`Washington, DC 20001
`
`Cl Via Hand Delivery
`Via Express Delivery
`III Via First Class Mail
`Cl Other:
`
`On Behalf of Respondents Intervenor Finnegan,
`Henderson. Farabow. Garrett & Dunner. LLP:
`
`Smith R. Brittingham IV, Esq.
`FINNEGAN, HENDERSON, FARABOW, GARRETT
`& DUNNER LLP
`901 New York Avenue, NW
`Washington, DC 20001
`
`E] Via Hand Delivery
`E Via Express Delivery
`D Via First Class Mail
`El Other:
`
`

`

`CERTAIN OPAQUE POLYMERS
`
`Inv. N0. 337-TA-883
`
`On Behalf of Re-spondentsIntervenor Omar Yarsuvat:
`
`M11165B. Altnlan, Esq.
`FOSTER, MURPHY, ALTMAN & NICKEL, P.C.
`L StI'€€t, NW, S1lit€ 1
`Washington, DC 20036
`
`U Via Hand Delivery
`Q Via ExprfissDelivery
`First Class
`U other
`
`U
`
`

`

`UNITED STATES INTERNATIONAL TRADE COMMISSION
`Washington, D.C.
`
`\
`
`-
`I“ the Matte‘ °f
`CERTAIN OPAQUE POLYMERS
`
`Investigation No. 337-TA-883
`
`ORDER TO CEASE AND DESIST
`
`IT IS HEREBY ORDERED THAT Organik Kimya US, lnc., of Z00 Wheeler Road, 2nd
`
`Floor, Burlington, Massachusetts 01803, cease and desist from conducting any of the following
`
`activities in the United States:
`
`importing, selling, marketing, advertising, distributing, offering
`
`for sale, transferring (except for exportation), soliciting United States agents or distributors, or
`
`aiding and abetting other entities in the importation, sale for importation, sale after importation,
`
`transfer (except for exportation), or distribution of covered products in violation of section 337 of
`
`the TariffAct of 1930, as amended, 19 U.S.C. § 1337. _
`
`As used in this Order:
`
`I.
`
`Definitions
`
`(A)
`
`“Commission” shall mean the United States International Trade Commission.
`
`(B) . “Complainants” shall collectively refer to Rohm and Haas Company of 100
`
`Independence'Mall West, Philadelphia, Pennsylvania 19106; Rohm and Haas Chemicals LLC of
`
`100 Independence Mall West, Philadelphia, Pennsylvania 19106; and The Dow Chemical
`
`Company of 2030 Dow Center, Midland, Michigan 48674.
`
`(C) “Respondent” shall mean Organik Kimya US, Inc., of 200 Wheeler Road, 2nd Floor,
`
`Burlington, Massachusetts 01803.
`
`A
`
`

`

`(D) “Person” shall mean an individual, or any non-governmental partnership, firm,
`
`association, corporation, or other legal or business entity or its majority owned or controlled
`
`subsidiaries, or their successors or assigns.
`
`. (E) “United States” shall mean the fifty States, the District of Columbia, and Puerto
`
`Rico.
`
`(F) The terms “import” and “importation” refer to importation for entry for
`
`consumption under the Customs laws of the United States.
`
`(G) The tenn “covered products” shall mean opaque polymers manufactured by or for
`
`Respondent using any of the 52 misappropriated trade secrets listed in Dow’s Disclosure of
`
`Misappropriated Trade Secrets (Jan, 29, 2014) (listing trade secrets A-ZZ) (the “Dow Trade
`
`Secrets”).
`
`II.
`
`Applicability
`
`The provisions of this Cease and Desist Order shall apply to the Respondent and
`
`to any of its principals, stockholders, officers, directors, employees, agents, licensees,
`
`distributors, controlled (whether by stock ownership or otherwise) and majority owned
`
`business entities, successors, and assigns, and to each of them, insofar as they are
`
`engaging in conduct prohibited by Section III, infra, for, with, or otherwise on behalf of,
`
`Respondent.
`
`III.
`
`I
`
`Conduct Prohibited
`
`The following conduct of Respondent in the United States is prohibited by the Order.
`
`For a period of twenty-five (25) years from the date of issuance of this Order, Respondent shall
`
`not:
`
`(A)
`
`import or sell for importation into the United States any of the covered products;
`
`2
`
`

`

`(B) market, distribute, offer for sale, or otherwise transfer (except for exportation), in
`
`the United States imported covered products;
`
`(C)
`
`advertise imported covered products;
`
`(D)
`
`solicit U.S. agents or distributors for imported covered products; or
`
`(E)
`
`aid or abet other entities in the importation, sale for importation, sale after
`
`importation, transfer, or distribution of covered products.
`
`IV.
`
`Conduct Permitted
`
`Notwithstanding any other provision of this Order, specific conduct otherwise prohibited
`
`by the terms of this Order shall be permitted if, in a written instrument, the owner of the Dow
`
`Trade Secrets licenses or authorizes such specific conduct, or such specific ‘conduct is related to
`
`the importation or sale of covered products by or for the United States.
`
`V.
`
`Reporting
`
`For purposesof this reporting requirement, the reporting periods shall commence on July
`
`1 of each year and shall end on the subsequent June 30. However, the first report required under
`
`this section shall cover the period from the date of issuance of this Order through June 30, 2015.
`
`This reporting requirement shall continue in force until such time as Respondent will have
`
`truthfully reported, in two consecutive timely filed reports, that it has no inventory of covered
`
`products in the United States.
`
`Within thirty-(3O)days of the last day of the reporting period, Respondent shall report to
`
`the Commission: (a) the quantity in units and the value in dollars of covered products that
`
`Respondent has (i) imported and/or (ii) sold in the United States after importation during the
`
`3
`
`

`

`reporting period, and (b) the quantity in units and value in dollars of reported covered products that
`
`remain in inventory in the United States at the end of the reporting period. A Respondent filing
`
`written submissions must file the original document electronically on or before the deadlines
`
`stated above and submit 8 true paper copies to the Office of the Secretary by noon the next day
`
`pursuant to Commission rule 2l0.4(f), 19 C.F.R. § 2l0.4(f). Submissions should refer to the
`
`investigation number (“Inv. No. 337-TA-883”) in a prominent place on the cover page and/or the
`
`first page.
`
`(See Handbook for Electronic Filing Procedures,
`
`hltp://www.usitc.gov/secretary/fi2d_reg_n0{ices/rules/handb00k_0n_electr0nic_filing.pqlf).
`
`Persons with questions regarding filing should contact the Secretary (202-205-2000). A
`
`Respondent desiring to submit a document to the Commission in confidence must file the original
`
`and a public version of the original with the Office of the Secretary and serve a copy of the
`
`confidential version on Complainant’s counsel.1
`
`Any failure to make the required report or the filing of any false or inaccurate report shall
`
`constitute a violation of this Order, and the submission of a false or inaccurate report may be
`
`referred to the U.S. Department of Justice as a possible criminal violation of 18 U.S.C. §l0O1.
`
`VI.
`
`Record Keeping and Inspection
`
`_
`
`(A) For purposes of securing compliance with this Order, Respondent
`
`shall retain any and all records relating to the sale, offer for sale, marketing, or
`
`distribution in the United States of covered products, made and received in the usual and
`
`ordinary course of business, whether in detail or in summary form, for a period of three
`
`I Complainant must file a letter with the Secretary identifying the attorney to receive the
`reports or bond information. The designated attomey must be on the protective order entered in
`the investigation.
`i
`
`..
`
`.4
`
`

`

`(3) years from the close of the fiscal year to which they pertain. V
`
`'
`
`(B) For purposes of detennining or securing compliance with this Order
`
`and for no other purpose, and subject to any privilege recognized by the federal courts of
`
`the United States, duly authorized representatives of the Commission, upon reasonable
`
`written notice by the Commission or its staff, shall be permitted access and the right to
`
`inspect and copy in Respondent’s principal office during office hours, and in the presence
`
`of counsel, or other representatives if Respondent so chooses, all books, ledgers,
`
`accounts, correspondence, memoranda, and other records and documents, both in detail
`
`and in summary fonn as are required to be retained by subparagraph VI(A) of this Order.
`
`VII.
`
`Service of Cease and Desist Order
`
`Respondent is ordered and directed to:
`
`(A) Serve, within fifteen (15) days after the effective date of this Order, a copy of this
`
`Order upon each of its respective officers, directors, managing agents, agents, and employees who
`
`have any responsibility for the importation, marketing, distribution, or sale of imported covered
`
`products in the United States;
`
`'
`
`(B) Serve, within fifteen (15) days afier the succession of any persons referred to in the
`
`proceeding paragraph, a copy of this Order upon each successor; and
`
`(C) Maintain such records as will show the name, title, and address of each person upon
`
`whom the Order has been served, as described in subparagraphs VII(A) and VII(B) of this Order,
`
`together with the date on which service was made.
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`The obligations set forth in subparagraphs VII(B) and (C) shall remain in effect for
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`twenty-five (25) years from the date of issuance of this Order.
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`'
`
`5
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`

`

`‘VIII.
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`Confidentiality
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`_
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`Any request for confidential treatment of information obtained by the Commission
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`pursuant to Sections V and VI of this Order should be in accordance with Commission Rule 201.6,
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`19 C.F.R. § 201.6. For all reports for which confidential treatment is sought, Respondent must
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`provide a public version of such report with confidential information redacted.
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`_
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`.IX.
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`.
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`Enforcement
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`Violation of this Order may result in any of the actions specified in section 210.75 of the
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`Commission Rules of Practice and Procedure (19 C.F.R. § 210.75), including an action for civil
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`penalties in accordance with section 337(1)of the Tariff Act of 1930, as amended (19 U.S.C.
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`§ l337(f)), and any other action as the Commission may deem appropriate.
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`In determining
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`whether a Respondent is in violation of this Order, the Commission may infer facts adverse to a
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`Respondent if Respondent fails to provide adequate or timely information.
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`'
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`X.
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`Modification
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`The Commission may amend this Order on its own motion or in accordance with the
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`procedure described in section 210.76 of the Commission’s Rules of Practice and Procedure (19
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`C.F.R. § 210.76).
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`By Order of the Commission.
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`Issued: April l7, 2015
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`6
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`7%
`
`Lisa R. Barton
`Secretary to the Commission
`
`

`

`CERTAIN OPAQUE POLYMERS
`
`Inv. No. 337-TA-883
`
`CERTIFICATE OF SERVICE
`
`I, Lisa R. Barton, hereby certify that the attached COMMISSION ORDER has been
`served upon the following parties as indicated, on April 17, 2015.
`
`Lisa R. Barton, Secretary
`U.S. Intemational Trade Commission
`500 E Street, SW
`Washington, DC 20436
`
`On Behalf of Complainants Rohm and Haas Co.. Rohm
`and Haas Chemicals LLC, and The Dow Chemical
`Company:
`~
`
`Paul F. Brinkman, Esq.
`QUINN EMANUEL URQUHART & SULLIVAN LLP
`777 6"‘ Street, NW, 11""Floor
`Washington, DC 20001
`
`U Via Hand Delivery
`Via Express Delivery
`Cl Via First Class Mail
`U Other:
`
`On Behalf of Respondents Organik Kimva San. ve Tic.
`A.S. Organik Kimva Netherlands B.V.. Organik Kimyg
`US, Inc.. Turk International LLC. and Aalborz
`Chemical LLC d/b/a All Chem:
`
`Eric J. Fues, Esq.
`FINNEGAN, HENDERSON, FARABOW, GARRETT
`& DUNNER LLP
`901 New York Avenue, NW
`Washington, DC 20001
`
`El Via Hand Delivery
`Via Express Delivery
`U Via First Class Mail
`Cl Other:
`
`On Behalf of Respondents Intervenor Finnegan,
`Henderson, Farabow. Garrett & Dunner. LLP:
`
`Smith R. Brittingham IV, Esq.
`FINNEGAN, HENDERSON, FARABOW, GARRETT
`& DUNNER LLP
`901 New York Avenue, NW
`Washington, DC 20001
`
`Cl Via Hand Delivery
`Via Express Delivery
`[II Via First Class Mail
`U Other:
`
`

`

`‘CERTAIN OPAQUE POLYMERS
`
`Inv. N0. 337-TA-883
`
`On Behalf of Respondents Intervenor Omar Yarsuvat:
`
`James B. Altman, Esq.
`&
`P¢C-
`L St1‘C€t,NW, Sllitfi
`Washington, DC 20036
`
`Express
`
`III Via Hand Delivery
`
`U
`
`First Class
`D Other:
`
`

`

`PUBLIC VERSION
`
`UNITED STATES INTERNATIONAL TRADE COMMISSION
`Washington, D.C.
`
`I“ ‘he Matte’ °f
`CERTAIN OPAQUE POLYMERS
`
`Investigation N0. 337-TA-883
`
`COMMISSION OPINION
`
`In this investigation, complainants Dow Chemical Company, Rohm and Haas Company,
`
`and Rohm and Haas Chemicals LLC (collectively, “Dow”) accused respondents Organik Kimya
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`San. ve Tic. A.S; Organik Kimya Netherlands B.V.; and Organik Kimya US, Inc. (collectively,
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`“Organik Kimya”), of violating section 337 of the Tariff Act of 1930 by, inter alia, selling and
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`importing into the United States certain opaque polymers, which are paint additives, that were
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`produced using trade secrets misappropriated from Dow. See 78 Fed. Reg. 71643 (Nov. 29,
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`2013). All other respondents and claims have been terminated from the investigation, and the
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`initial determination at issue here (Order No. 27) (“the ID” or “the sanctions ID”) is the ALJ’s
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`final initial detennination on violation. The sanctions ID found Organik Kimya in default as a
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`result of its spoliation of evidence, and ordered Organik Kimya, jointly and severally with its
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`counsel, to pay certain of Dow’s fees and costs incurred as a result of the spoliation. On review,
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`the Commission has determined to uphold the ID’s finding that Organik Kimya is in default, and
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`has issued a limited exclusion order and a cease and desist order. The Commission has
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`determined to affinn the ID’s assessment of certain fees and costs against Organik Kimya and
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`1
`
`

`

`PUBLIC VERSION
`
`has determined to affinn, in part, the ID’s determination that certain Organik Kimya counsel are
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`jointly and severally liable with Organik Kimya for those fees and costs.1
`
`I.
`
`BACKGROUND
`
`On May 19, 2014, Dow filed a motion for default and other sanctions against Organik
`
`Kimya for discovery abuse. On May 21, 2014, Organik Kimya filed a motion to terminate based
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`upon a consent order. On July 8-9, 2014, the presiding administrative law judge (“ALJ”)
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`conducted a hearing on the pending motions. On October 20, 2014, the ALJ issued an initial
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`determination (“ID”) finding Organik Kimya in default under Commission Rule 21O.42(c),and
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`ordering monetary sanctions jointly and severally against Organik Kimya and its counsel.
`
`Organik Kimya’s counsel are the law firm Finnegan, Henderson, Farabow, Garrett & Dunner,
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`LLP, of Washington, DC (“Finnegan”), and Omiir Yarsuvat (“Yarsuvat”), an attorney in
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`Istanbul, Turkey.2 The ALJ denied Organik Kimya’s motion to terminate based upon a consent
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`order.
`
`1Commissioner Schrnidtlein joins the Commission opinion as to Organik Kimya’s
`default, the Commission remedial orders to be issued, and the liability of Organik Kimya for
`certain fees and costs. She dissents, for the reasons set forth in her separate opinion, as to the
`joint and several liability of Organik Kimya counsel for those fees and costs.
`2 Commission Rule 210.33(c)(1) permits the award of reasonable expenses against a
`“party” or “the attorney advising that party or both.” 19 C.F.R. § 210.33. It is undisputed that
`the Commission rule, as well as Federal Rule of Civil Procedure 37(b)(2)(C), upon which the
`Commission rule is patterned, see 19 U.S.C. § 1337(h), permits sanctions against firms or
`individual attorneys. See, e.g., Thomas Y. Allman, Achieving an Appropriate Balance." The Use
`of Counsel Sanctions in Connection with the Resolution ofE-Discovery Misconduct, l5 Rich.
`J.L. & Tech. 1, 37 (2009) (“Similarly, Rule 37 permits sanctions against law firms, not just
`individual lawyers, as authorized under Rule 26(g).” (footnote omitted)); Hyde & Drath v.
`Baker, 24 F.3d 1162, 1171 (9th Cir. 1994) (sanctioning a law firm); Certain Hardware Logic
`Emulation Sys. & Components Thereofi Inv. No. 337-TA-383, Order No. 96, 1997 WL 665012,
`* 33 n.47 (July 31, 1997), adopted by the Commission in relevantpart at 1998 WL 105158, *1
`(March 6, 1998); Hardware Logic, Comm’n Op. 29-35 (Mar. 16, 1998) (sanctioning a
`Califomia-based law firm). The ID refers to the client’s “counsel” but does not name any
`particular lawyers at the Finnegan law finn or otherwise distinguish among those lawyers or
`between those lawyers and the law firm. Nor have the parties briefed any potential allocation of
`[Footnote continued on nextpage]
`
`2
`
`

`

`PUBLIC VERSION
`
`On October 28, 2014, Organik'Kimya filed a petition with the Commission for review of
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`the sanctions ID.3 The same day, Finnegan and Yarsuvat filed separate motions before the
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`Commission to intervene in the investigation for the purpose of disputing joint liability for the
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`monetary sanction.4 Finnegan and Yarsuvat also filed provisional petitions for review of the ID,
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`appended to their motions to intervene. On November 4, 2014, Dow filed a response to Organjk
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`Kimya’s petition, as well as responses to Finnegan’s and Yarsuvat’s motions.5 On November
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`10, 2014, Finnegan filed a motion for leave to file a reply in support of its motion to intervene.6
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`Dow opposed that motion on November 13, 2014.7
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`On December 16, 2014, the Commission detennined to review the ID, and granted
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`counsels’ motions to intervene conceming discovery abuse and sanctions, and Firmegan’s motion
`
`[Footnote continuedfrom previous page]
`responsibility between or among such individual lawyers and the law firm. As a result, the
`Commission has not made any determination on those questions.
`3Resp’ts’ Pet. for Comrn’n Review of the ALJ’s Initial Determination Finding Spoliation
`of Evidence, Granting Default Judgment Against Resp’ts, and Requiring Resp’ts to Pay Certain
`of Compl’ts’ Att’ys Fees and Costs (Oct. 28, 2014) (“Organik Kimya Pet”).
`-
`Finnegan, Henderson, Farabow, Garrett & Dunner, LLP’s M