Swiff-Train Co. v. United States
35 I.T.R.D. (BNA) 1233
Ct. Intl. Trade2013Background
- Plaintiffs challenge ITC's final determination that US MLWF industry is materially injured by Chinese MLWF imports sold at LTFV, under 28 U.S.C. § 1581(c).
- Court held oral argument Jan 23, 2013 and remands ITC to analyze whether domestic hardwood plywood for flooring should be included in the domestic like product/industry, given the scope and overlap issues.
- MLWF is defined as two or more veneer layers with a core; scope includes unfinished MLWF and prefinished products, with veneer potentially comprising the core as well.
- ITC declined to include hardwood plywood for flooring in the domestic industry, despite scope remarks that may encompass such products; plaintiffs contend plywood used for flooring falls within MLWF scope.
- Remand also requested to reevaluate price suppression/depression findings and to conduct a proper but-for causation analysis, considering other factors like the housing market collapse.
- ITC is ordered to reopen the record, issue questionnaires to identified domestic hardwood plywood producers, and issue revised findings by addressing the dissenters’ concerns; remand results due by Sept. 30, 2013.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether hardwood plywood for flooring belongs in the domestic like product | Plaintiffs argue it falls within MLWF scope and should be included. | Defendant argues it is outside the scope or not properly raised; not included for domestic industry. | Remand to reconsider inclusion. |
| Whether ITC adequately analyzed price suppression/depression | ITC did not explicitly find price suppression/depression; needs fuller analysis per dissent. | ITC's Views supported the price-related findings. | Remand to make explicit findings on price suppression/depression. |
| Whether the but-for causation standard was properly applied | ITC should apply a but-for causation framework (replacement/benefit analysis) to link imports to injury. | ITC could apply its discretion in causation without Bratsk-like replacement analysis. | Remand to perform a proper but-for causation analysis. |
| Whether the ITC properly evaluated impact within the housing/economic cycle context | The downturn in housing/home remodeling drove injury; ITC should balance with subject imports. | Subject imports contributed to injury beyond overall downturns. | Remand to reevaluate impact considering the business cycle and dissenting views. |
| Whether ITC adequately evaluated the entire domestic like product industry | Record requires assessment of overlap with hardwood plywood manufacturers used for flooring. | ITC cannot expand domestic industry beyond the defined like product. | Remand to identify/evaluate relevant domestic producers and revise findings accordingly. |
Key Cases Cited
- Gerald Metals, Inc. v. United States, 132 F.3d 716 (Fed.Cir.1997) (by-reason-of causation requires substantial nexus; not merely correlation)
- Price Waterhouse v. Hopkins, 490 U.S. 228 (U.S. 1989) (but-for causation framework for determining causation in injury)
- Taiwan Semiconductor Indus. Ass'n v. United States, 266 F.3d 1339 (Fed.Cir.2001) (ITC must examine other factors to avoid attributing injury to imports)
- Hynix Semiconductor Inc. v. United States, 431 F. Supp. 2d 1302 (CIT 2006) (ITC must consider other factors in causation analysis; not solely imports)
- Mittal Steel Point Lisas Ltd. v. United States, 542 F.3d 867 (Fed.Cir.2008) (explains but-for causation in the ITC injury analysis)
- Price Waterhouse v. Hopkins, 490 U.S. 228 (U.S. 1989) (see above)