UNITED STATES INTERNATIONAL TRADE COMMISSION
`Washington, D.C.
`
`In the Matter of
`
`CERTAIN LASER ABRADED DENIM
`GARMENTS
`
`Investigation No. 337-TA-930
`
`NOTICE OF THE COMMISSION'S DETERMINATION TO AFFIRM-IN-PART AN
`INITIAL DETERMINATION CLARIFYING THE ADMINISTRATIVE PROTECTIVE
`ORDER
`
`AGENCY: U.S. International Trade Commission.
`
`ACTION: Notice.
`
`SUMMARY: Notice is hereby given that the U.S. International Trade Commission has
`determined to affirm-in-part and vacate-in-part the presiding administrative law judge's ("AU")
`initial determination ("ID") (Order No. 107), clarifying the administrative protective order
`("APO") (Order No. 1) in the above-captioned investigation.
`
`FOR FURTHER INFORMATION CONTACT: Benjamin S. Richards, Office of the
`General Counsel, U.S. International Trade Commission, 500 E Street, S.W., Washington, D.C.
`20436, telephone (202) 708-5453. 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 information
`concerning the Commission may also be obtained by accessing its internet server at
`https://www.usitc.gov. The public record for this investigation may be viewed on the
`Commission's electronic docket (EDIS) at https://edis.usitc.gov. Hearing-impaired persons are
`advised that information on this matter can be obtained by contacting the Commission TDD
`terminal on (202) 205-1810.
`
`SUPPLEMENTARY INFORMATION: The Commission instituted this investigation on
`September 23, 2014, based on a complaint filed by Revolaze, LLC and TechnoLines, LLC, both
`of Westlake, Ohio (collectively, "Revolaze"). 79 FR 56828 (Sep. 23, 2014). The complaint
`alleged violations of section 337 of the 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 laser abraded denim garments. The complaint alleged
`the infringement of seventy-one claims of six United States patents. The notice of investigation
`named twenty respondents. The complaint and notice of investigation were later amended to
`add nine respondents. Order No. 20 at 3-4 (Jan. 23, 2015), not reviewed, Notice at 2 (Feb. 10,
`2015).
`
`

`

`In the course of the investigation, the presiding All disqualified Complainants' former
`counsel, Dentons USA LLP ("Dentons"), in a non-ID order. Order No. 43 (May 7, 2015). At
`the conclusion of proceedings in the investigation, in its notice terminating the investigation, the
`Commission determined to review Order No. 43, and, on review, to vacate that Order as moot
`because all respondents had been terminated from the investigation. Notice at 2 (Apr. 12,
`2016). Shortly thereafter, the Commission issued an Opinion more fully explaining, inter alio,
`its decision to review and find moot Order No. 43. Comm'n Op. 10-12 (May 16, 2016) (public
`version).
`
`On April 24, 2018, counsel for Revolaze filed a motion to clarify or modify the APO in
`this investigation. Mot. No. 930-117 ("Mot."). The motion follows from a discovery dispute in
`the Cuyahoga County, Ohio Court of Common Pleas where Revolaze is currently prosecuting a
`malpractice claim against Dentons. See Revolaze, LLC v. Dentons US LLP, Case No. CV 16-
`861410. In particular, Dentons has refused, based on its interpretation of the APO, to search
`documents from the Commission investigation still in Dentons' possession for information
`responsive to discovery requests in the malpractice action. Mot. at 2-3. Revolaze's motion
`seeks clarification that Dentons would not violate the APO if one or more of its attorneys who
`signed on to the APO searched Dentons' files for non-CBI documents related to the
`investigation. Id. at 4. Alternatively, Revolaze's motion seeks modification of the APO to
`permit such a search. Id. On May 22, 2018, the Commission issued an Order assigning the
`motion to an ALT and requiring that the decision on the motion issue as an initial determination.
`
`On October 11, 2018, the All issued the subject ID (Order No. 107) on modification or
`clarification of the APO. The ID grants the motion in part and clarifies the APO. ID at 4, 7.
`In particular, the ID finds that the APO does "not prohibit Dentons' attorneys who signed onto
`the [APO] from reviewing documents" and "producing documents that do not include"
`confidential business information in the malpractice action. Id. at 6 (emphasis omitted). The
`ID further states "that one or more of Dentons' attorneys who signed on to the [APO] in this
`Investigation and who still work for Dentons should be directed to review the relevant
`documents and produce documents in the Malpractice Action that do not contain Respondents'
`CBI." Id. at 6. No petitions for review were filed.
`
`On November 20, 2018, the Commission issued notice of its decision to review the ID in
`part. Notice at 1 (Apr. 20, 2018). In particular, the Commission determined "to obtain further
`briefing [regarding] whether Dentons properly possesses the documents in question and if not
`whether Dentons is authorized to produce such documents," and to determine "whether it should
`open an inquiry into whether Dentons has breached the APO by violating paragraph 14," id. at 3,
`which requires recipients of materials containing CBI to return or destroy those materials upon
`final termination of the investigation, see Order No. 1 at IR 14. The Commission required
`Revolaze and Dentons to "brief their positions as to the application of paragraph 14 of the APO
`to the documents in Dentons' possession, and the effect of that paragraph on Dentons' authority
`to produce documents to Revolaze." Notice at 3 (Apr. 20, 2018). The Commission permitted,
`but did not require, the other parties to the investigation to submit briefing on the same topics.
`Id. The Commission determined not to review the ID's finding that, to the extent documents are
`properly in Dentons' possession, the APO does not prohibit appropriate Dentons' attorneys from
`
`2
`
`

`

`reviewing and producing those documents that do not include CBI in the Malpractice Action.
`Id. at 2.
`
`On December 20, 2018, Dentons filed an opening submission in response to the
`Commission's Notice and pursuant to an extension of time granted by the Chairman. On
`December 21, 2018, Revolaze filed its opening submission, also pursuant to an extension of time
`granted by the Chairman: No other opening submissions were filed. On February 5, 2019,
`following the government shutdown, Dentons filed a reply submission, the deadline for which
`originally occurred during the lapse in government appropriations. No other reply submissions
`were received, including from Revolaze.
`
`Having examined the record of this investigation, including the submissions from
`Revolaze and Dentons, the Commission has determined to affirm-in-part the All's initial
`determination clarifying the APO. Particularly, the Commission affirms the All's
`determination that paragraph 14 of the APO does not "prohibit Dentons' attorneys who signed on
`to the [APO] from reviewing documents to exclude CBI-designated documents from production
`in the Malpractice Action." ID at 6. Moreover, Revolaze has represented that it is not seeking
`documents containing CBI in the malpractice action, and thus the question of whether production
`of CBI in the malpractice action would violate the APO is not presently before the Commission.
`See, e.g., Revolaze Br. at 4 (explaining that in the malpractice action "RevoLaze requested
`documents received or created by Dentons during the Investigation that do not contain CBI of
`any respondent to the investigation."). As such, the instant determination need not reach that
`issue.
`
`The Commission vacates the portion of the ID that states "that one or more of Dentons'
`attorneys who signed on to the [APO] in this Investigation and who still work for Dentons should
`be directed to review the relevant documents and produce documents in the Malpractice Action
`that do not contain Respondents' CBI." ID at 6-7. Revolaze's motion does not seek an order
`from the Commission directing Dentons to produce documents in the malpractice action, and the
`Commission lacks jurisdiction to render such an order.
`
`The authority for the Commission's determination 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 Commission.
`
`Issued: July 19, 2019
`
`3
`
`Lisa R. Barton
`Secretary to the Commission
`
`

`

`CERTAIN LASER ABRADED DENIM GARMENTS
`
`Inv. No. 337-TA-930
`
`PUBLIC CERTIFICATE OF SERVICE
`I, Lisa R. Barton, hereby certify that the attached NOTICE has been served by hand
`upon the Commission Investigative Attorney, Anne Goalwin, Esq. and the following parties as
`indicated, on July 19, 2019.
`
`0:o43:)
`
`Lisa R. Barton, Secretary
`U.S. International Trade Commission
`500 E Street, SW, Room 112
`Washington, DC 20436
`
`On Behalf of Complainants RevoLaze, LLC and TechnoLines,
`LLC:
`
`Jacob D. Koering
`MILLER, CANFIELD, PADDOCK AND STONE, PLC
`225 West Washington Street, Suite 2600
`Chicago, IL 60606
`
`O Via Hand Delivery
`O Via Express Delivery
`Via First Class Mail
`O Other:
`
`On Behalf of 1724982 Alberta ULC and Buffalo International
`ULC
`
`Gregory F. Ahrens
`WOOD HERRON & EVANS LLP
`2700 Carew Tower
`441 Vine Street
`Cincinnati, Ohio 45202-2917
`
`On Behalf of Abercrombie & Fitch Co. and Roberto Cavalli
`S.p.A.:
`
`Adam R. Hess
`VENABLE LLP
`600 Massachusetts Ave, NW
`Washington, DC 20001
`
`On Behalf of American Eagle Outfitters, Inc.
`
`Stephen J. Rosenman
`ROPES & GRAY LLP
`2099 Pennsylvania Ave NW,
`Washington, DC 20006
`
`O Via Hand Delivery
`O Via Express Delivery
`El Via First Class Mail
`O Other:
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`O Via Hand Delivery
`O Via Express Delivery
`El Via First Class Mail
`O Other:
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`O Via Hand Delivery
`O Via Express Delivery
`EZ Via First Class Mail
`O Other:
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`

`

`CERTAIN LASER ABRADED DEMIN GARMENTS
`
`Inv. No. 337-TA-930
`
`Certificate of Service — Page 2
`
`BBC Apparel Group, LLC
`
`BBC Apparel Group, LLC 1407
`Broadway, Suite 503
`New York, NY 10018
`
`On Behalf of Crystal Apparel Ltd.:
`
`R. Brian Burke
`SANDLER, TRAVIS & ROSENBERG, P.A.
`551 5th Avenue, Suite 1100
`New York, New York 10176
`
`On Behalf of DL1961 Premium Denim Inc.:
`
`Joseph A. Martin, Esq.
`ARCHER & GREINER, P.C.
`One Centennial Square
`33 East Euclid Avenue
`Haddonfield, NJ 08033
`
`On Behalf of Denim Service S.p.A., Diesel S.p.A. , Eroglu
`Giyin San Tic AS, Private Label Tehuacan, Rona Siete
`Leguas, Inc., Rona Siete Leguas, S.A. de C.V., and Ropa Siete
`Leguas, S.A. de C.V.:
`
`Janine A. Carlan
`ARENT FOX LLP
`1717 K Street NW
`Washington, DC 20006
`
`On Behalf of Denimatrix SA., Eddie Bauer LLC, Lucky
`Brand Dungarees, Inc., and The Buckle, Inc.:
`
`D. Sean Trainor
`KIRKLAND & ELLIS LLP
`655 Fifteenth Street, NW
`Washington, DC 20005
`
`1=1 Via Hand Delivery
`ID Via Express Delivery
`El Via First Class Mail
`ID Other:
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`E Via Hand Delivery
`1=1 Via Express Delivery
`El Via First Class Mail
`El Other:
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`1=1 Via Hand Delivery
`El Via Express Delivery
`El Via First Class Mail
`ID Other:
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`1=1 Via Hand Delivery
`Cl Via Express Delivery
`El Via First Class Mail
`1=1 Other:
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`1=1 Via Hand Delivery
`1:1 Via Express Delivery
`El Via First Class Mail
`El Other:
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`CERTAIN LASER ABRADED DEMIN GARMENTS
`
`Inv. No. 337-TA-930
`
`Certificate of Service — Page 3
`
`On Behalf of Fashion Box S.p.A.:
`
`Peter I. Bernstein
`SCULLY, SCOTT, MURPHY, & PRESSER, P.C.
`400 Garden City Plaza, Suite 300
`Garden City, New York 11530
`
`1=1 Via Hand Delivery
`El Via Express Delivery
`El Via First Class Mail
`• Other:
`
`Gotham Licensing Grow), LLC:
`
`Gotham Licensing Group, LLC
`1407 Broadway
`Suite 506
`New York, New York 10018
`
`On Behalf of Guess? Inc. and Modelos Yasiro, S.A. de C.V.:
`
`Stephen R. Smith
`COOLEY LLP
`1299 Pennsylvania Avenue, NW
`Suite 700
`Washington, DC 20004
`
`On Behalf of H&M Hennes & Mauritz AB and H&M Hennes
`& Mauritz LP:
`
`Staci Riordan
`NIXON PEABODY LLP
`One California Plaza
`399 S. Grand Avenue, Suite 4100
`Los Angeles, CA 90071
`
`On Behalf Koos Manufacturing, Inc.:
`
`Brian K. Brookey
`TUCKER ELLIS LLP
`515 South Flower Street
`Forty-Second Floor
`Los Angeles, CA 90071
`
`ID Via Hand Delivery
`ID Via Express Delivery
`LE Via First Class Mail
`ID Other:
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`ID Via Hand Delivery
`▪ Via Express Delivery
`IZI Via First Class Mail
`ID Other:
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`D Via Hand Delivery
`1=1 Via Express Delivery
`IZ Via First Class Mail
`• Other:
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`▪ Via Hand Delivery
`El Via Express Delivery
`[ZI Via First Class Mail
`D Other:
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`CERTAIN LASER ABRADED DEMIN GARMENTS
`
`Inv. No. 337-TA-930
`
`Certificate of Service — Page 4
`
`On Behalf Levi Strauss & Co.:
`
`Louis S. Mastriani
`ADDUCI MASTRIANI & SCHAUMBERG LLP
`1133 Connecticut Avenue, NW
`Washington, DC 20036
`
`Martelli Lavorazioni Tessili S.p.A.:
`
`Martelli Lavorazioni Tessili S.p.A.
`181, via Emilia Ponente
`40060 Toscanella
`Italy
`
`On Behalf of The Gap, Inc.:
`
`Marcia H. Sundeen
`GOD WIN PROCTER LLP
`901 New York Avenue, NW
`Washington, DC 20001
`Telephone: (202) 346-4000
`
`On Behalf of VF Corporation:
`
`Bruce S. Sostek, Esq.
`THOMPSON & KNIGHT, LLP
`1722 Routh Street
`Suite 1500
`Dallas, Texas 75201
`
`On Behalf of Intervener Dentons US LLP:
`
`David Maiorana
`JONES DAY
`901 Lakeside Avenue
`Cleveland, OH 44114
`
`O Via Hand Delivery
`0 Via Express Delivery
`Z Via First Class Mail
`O Other:
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`O Via Hand Delivery
`O Via Express Delivery
`CE Via First Class Mail
`O Other:
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`O Via Hand Delivery
`O Via Express Delivery
`Z Via First Class Mail
`O Other:
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`1=1 Via Hand Delivery
`O Via Express Delivery
`CO Via First Class Mail
`ID Other:
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`O Via Hand Delivery
`O Via Express Delivery
`LE Via First Class Mail
`El Other:
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