XYZ CORPORATION, Plаintiff, v. UNITED STATES and U.S. Customs & Border Protection, Defendants, and Duracell U.S. Operations, Inc., Defendant-Intervenor.
Court No. 17-00125
United States Court of International Trade.
September 12, 2017
Slip Op. 17-124
iv. Violation of Notice and Comment Requirements
As to the fourth element, “Plaintiff must demonstrate that the proposed interpretive ruling or decision violated the notice and comment requirements of this statute.” Kahrs Int‘l, 33 CIT at 1354, 645 F.Supp.2d at 1286 (citation omitted). The notice and comment requirement is triggered whenever Customs “issues interpretive rulings, ruling letters, internal advice memoranda, protest review decisions, or decisions that are the functional equivalent of interpretive rulings or decisions.” Id., 33 CIT at 1353, 645 F.Supp.2d at 1285. Neither party specifically addresses this element in their memoranda on the motion to dismiss. And although Plaintiff‘s complaint is not a paragon of clarity, Count 3 contains sufficient factual allegations to permit the court to infer that Plaintiff‘s Long Beaсh entries, which occurred during the existence of the alleged treatment, were treated differently, without the benefit of the notice and comment process as required by
Taking Plaintiff‘s claims as true and drawing all reasonable inferences in Plaintiff‘s favor, the court concludes that Plaintiff‘s complaint сontains sufficient factual allegations to entitle it to proceed to the court‘s consideration of the merits of Count 3. It remains to be seen whether Plaintiff can prove the existence of a treatment under
Accordingly, it is hereby
ORDERED that Defendant‘s motion to dismiss Counts 2 and 3 of Plaintiff‘s complaint is denied; it is further
ORDERED that Defendant shаll file its answer to Plaintiff‘s complaint on or before November 7, 2017; and it is further
ORDERED that the parties shall file a proposed scheduling order for the taking of discovery and the disposition of this action on the merits on or before November 21, 2017.
XYZ CORPORATION, Plaintiff, v. UNITED STATES and U.S. Customs & Border Protection, Defendants, and Duracell U.S. Operаtions, Inc., Defendant-Intervenor.
Court No. 17-00125
United States Court of International Trade.
September 15, 2017
Slip Op. 17-125
John M. Peterson, Russell A. Semmel, and Richard F. O‘Neill, Neville Peterson LLP, of New York, N.Y., for Plaintiff XYZ Corporation.
Alexander J. Vanderweide, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of New York, N.Y., for Defendants the United States and U.S. Customs and Border Protection. With him on the brief were Chad A. Readler, Acting Assistant Attorney General, Jeanne E. Davidson, Director, Reginald T. Blades, Jr., Assistant Director, and Tara K. Hogan, Assistant Director, of counsel on the brief was Beth C. Brotman, office of the Assistant Chief Counsel, International Trade Litigation, U.S. Customs and Border Protection, New York, N.Y.
Frances P. Hadfield, Crowell & Moring LLP, of New York, N.Y., аnd Robert N. Phillips and John Patrick Donohue, Reed Smith LLP, of San Francisco, CA and Philadelphia, PA, for Defendant-Intervenor Duracell U.S. Operations, Inc.
MEMORANDUM AND ORDER
Choe-Groves, Judge:
XYZ Corporation (“Plaintiff“) is a company engaged in the business of importing and distributing bulk-packaged gray market batteries bearing the “DURACELL” mark, a United States trademark currently owned by Duracell U.S. Operations, Inc. (“Duracell“). Plaintiff commenced this action to obtain judicial review of the decision made by U.S. Customs and Border Protection to grant Duracell‘s application for Lever-Rule protection, thereby restricting imports of certain gray market batteries beаring its trademark. See Amended Compl. ¶ 1; see also U.S. Customs and Border Protection Grant of “Lever-Rule” Protection, 51 Cust. Bull. & Dec. No. 12 (Mar. 22, 2017). Before the court is the issue of whether Plaintiff may designate its identity as confidential information in all filings with the court and instead use the pseudonym “XYZ Corporation.” For the reasons еxplained below, the court concludes that Plaintiff may not continue to proceed in this action under a pseudonym.
Plaintiff commenced this action against the United States and U.S. Customs and Border Protection (collectively, “Government“) on May 19, 2017 with the filing of a summons and complaint. See Summons, May 19, 2017, ECF No. 1; Compl., May 19, 2017, ECF No. 2. The summons and complaint both named “XYZ Corporation” as the plaintiff. See Summons; Compl. Plaintiff noted in its complaint that “XYZ Corporation is an assumed name of Plaintiff, which fears commercial retaliation if its name is revealed. Contemporaneous with the filing of this action, Plaintiff submitted an aрplication for a judicial protective order, which would make the name known to counsel for parties in this action, subject to certain specified limitations on dissemination.” Compl. n.l.
After obtaining the Government‘s consent, Plaintiff moved the court to enter a judicial protective order. Sеe Consent Mot. Judicial Protective Order, May 19, 2017, ECF No. 10. The court entered the requested protective order on May 26, 2017, restricting the disclosure of confidential information produced in this action according to the terms of the protective order. See Judicial Protective Order, May 26, 2017, ECF No. 21. Plaintiff filеd a summons and complaint under seal revealing Plaintiff‘s true identity. See Confidential Summons, June 1, 2017, ECF No. 26; Confidential Compl., June 1, 2017, ECF No. 27; see also USCIT Rule 81(h)(1) (requiring a party to file a confidential and public pleading if confidential or privileged information is referenced).
Duracell moved to intervene in this action on July 11, 2017. See Ex Parte Appl. Leave Intervene, July 11, 2017, ECF No. 61. The court granted Duracell permissive intervention and Duracell was entered as a defendant-intervenor in this action.1 See Order, July 13, 2017, ECF No. 63. The Parties then filed a joint motion to amend the judicial protective order to enable Duracell‘s counsel to have access to confidential information in this action. See Joint Mot. Amend Judicial Protective Order, July 19, 2017, ECF No. 74. The motion was expressly “made without prejudice to Duracell‘s right to challenge the designation of any information as Confidential” pursuant to the terms of the protective order. See id. The court granted the motion and issued the amended judicial protective order on July 19, 2017.
The amended judicial protective order provides for the following procedure in the event there is disagreement regarding what information may be designated as confidential:
In the event the recеiving party disagrees with the producing party‘s designation of confidentiality, whether as to particular information or document, the receiving party shall so advise the producing party in writing, and the producing party shall thereupon have twenty (20) days in which to withdraw the claim to confidentiality or otherwise resolve the disagreement, or move the Court to resolve the disagreement. During the pendency of any such motion the receiving party will not disclose the information or documentation that is the subject of said motion.
Amended Protective Order ¶ 9, July 19, 2017, ECF No. 75. On July 28, 2017, Du-
On August 17, 2017, Plaintiff filed a motion for an order directing Duracell to show cause why Plaintiff‘s identity should not be redacted as confidential information under the amended judicial protective order. See Pl.‘s Mot. Order Directing Def.-Intervenor to Show Cause Why Confidential Information Should Not Be Redacted, or to Redact Confidential Information, Aug. 17, 2017, ECF No. 103. Plaintiff argued that it should be able to proceed in this action under a pseudonym because Plaintiff‘s need for anonymity due to fear of commercial and legal retaliation from Duracell outweighs countervailing interests in full disclosure. See id. at 4-14. By letter dated August 21, 2017, the court invited the Government and Duracell to submit written comments addressing whether Plaintiff‘s identity should be treated as confidential under the judicial protective order in this case. See Letter filed by the Honorable Jennifer Choe-Groves, Aug. 21, 2017, ECF No. 109. Duracell filed comments on August 23, 2017, explaining that there is no factual or legal basis to justify allowing Plaintiff to conceal its identity. See Def.-Intervenor‘s Resp. Pl.‘s Mot. Order Directing Def.-Intervenor to Show Cause Why Confidential Information Should Not Be Redacted, or to Redact Confidential Information, Aug. 23, 2017, ECF No. 111. The Government filed comments on the same date, “defer[ring] to the Court‘s discretion to determine whether the plaintiff has demonstrated, through particularized evidence, that its concern of retaliation outweighs the countervailing interest in open judicial proceedings.” Def.‘s Resp Court‘s Order Dated Aug. 21, 2017 3, Aug. 23, 2017, ECF No. 113.
DISCUSSION
Plaintiff wishes to proceed аnonymously in this action using the pseudonym “XYZ Corporation.” The amended judicial protective order issued on July 19, 2017 affords the Parties limited protections regarding the disclosure of business information produced in this action. Amended Protective Order, July 19, 2017, ECF No. 75. According to the terms of the protective order, thе following categories of information may be designated as confidential information and may not be disclosed to the public:
(1) proprietary, business, financial, technical, trade secret, or commercially sensitive information; (2) information that any party is prohibited from releasing publically рursuant to contractual obligations, applicable statutes, applicable regulations, or directives from the Government; (3) private information that is otherwise protected from disclosure under applicable law including, but not limited to, personnel files; and (4) other confidential research, development, or commercial information as set forth in
USCIT Rule 26(c)(1)(G) .
Amended Protective Order ¶ 2.A, July 19, 2017, ECF No. 75. Plaintiff‘s identity does not appear to fall within any of these cate-
Having concluded that the protective order does not permit designating Plaintiff‘s identity as confidential, the court determines next whether to exercise its disсretion to allow Plaintiff to proceed anonymously in this action. The Rules of the Court provide that a summons and complaint must “name all the parties,”
There is no precеdent from the Court of Appeals for the Federal Circuit addressing this issue, but several other federal courts of appeals have held that, in determining whether a party may use a pseudonym and remain anonymous in an action, “a district court must balance the need for anonymity against the general presumption that parties’ identities are public information and the risk of unfairness to the opposing party.” Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1068 (9th Cir. 2000) (allowing plaintiffs to litigate under a pseudonym due to threats of physical violence, immediate deportation, and likely arrest); see also Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 189-90 (2d Cir. 2008) (requiring district court to balance plaintiff‘s interеst in anonymity against the public interest in disclosure and prejudice to defendants before deciding whether to allow a plaintiff to litigate under a pseudonym). The balancing test is a highly fact-intensive inquiry and it is within the court‘s discretion to determine whether the circumstances warrant “grant[ing] the ‘rare dispensation’ оf anonymity against the world.” United States v. Microsoft Corp., 56 F.3d 1448, 1464 (D.C. Cir. 1995) (quoting James v. Jacobson, 6 F.3d 233, 238 (4th Cir. 1993)).
In this case, Plaintiff wishes to proceed anonymously because it fears that revealing its identity would result in commercial and legal retaliation by Duracell. See Pl.‘s Mot. Order Directing Def.-Intervenor to Show Cause Why Confidential Information Should Not Be Redacted, or to Redact Confidential Information 4-8, Aug. 17, 2017, ECF No. 103. Plaintiff states that during the twenty-seven years it has been importing gray market battery products bearing Duracell‘s trademark, neither Duracell nor previous owners of the trade-
Therefore, it is hereby
ORDERED that the information Plaintiff has designated as confidential to protect the identities of Plaintiff and its corporate officers shall no longer be designated as confidential information in all future filings in this action; it is further
ORDERED that, on or before September 13, 2017, 5:00 p.m. EDT, Plaintiff shall refile its public summons and amended complaint without redactions of Plaintiff‘s identity and its corporate officers; it is further
ORDERED that the Government and Duracell shall not submit any public filings with the court that reveal the identities of Plaintiff and its corporate officers prior to the refiling of Plaintiff‘s public summons and amended complaint; and it is further
ORDERED that Plaintiff‘s Motion for Order Directing Defendant-Intervenor to Show Cause Why Confidential Information Should Not Be Redacted, or to Redact Confidential Information is denied as moot.
MILECREST CORPORATION, Plaintiff, v. UNITED STATES and U.S. Customs & Border Protection, Defendants, and Duracеll U.S. Operations, Inc., Defendant-Intervenor.
Court No. 17-00125
United States Court of International Trade.
September 15, 2017
Slip Op. 17-125