We provide a specialized practice in international trade and business, representing clients in customs matters, import/export transactions, and antidumping/countervailing duty actions before the U.S. government and in trade-related appeals in federal appellate courts. We also represent clients in corporate matters and commercial litigation in state and federal courts.
We represent business clients in all commercial litigation in state and federal courts, including breach of contract, shareholder/member disputes, fraud, breach of fiduciary duty, and misappropriation of trade secrets. We also help clients recover funds owed by suppliers, business partners, and customers in collection matters through demand letters, filing suits, and post-judgment enforcement.
Defense of an Antidumping (or Countervailing Duty) Investigation
An antidumping investigation is unlike any other litigation that most companies will have experienced. The tight deadlines, unusual information requests, and particular data requirements are unique to this kind of proceeding.
The defense of an antidumping duty investigation requires substantial effort and substantial expense. It involves investigations by two separate U.S. government agencies. The first is an investigation conducted by the U.S. Department of Commerce of sales and prices in the United States and the home market to establish whether US prices are below “normal” value -- which is the definition of dumping. The second is an investigation conducted by the U.S. International Trade Commission of whether the imports at issue cause material injury to the US industry.
Defending such a complex and unconventional investigation requires the assistance of US legal counsel familiar with the peculiarities of US antidumping law. Retaining U.S. legal counsel is imperative to achieving the best result possible.
A. DOC Dumping Investigation
The US Department of Commerce decides whether a company is dumping, and if so, imposes the dumping rate that must be deposited for future imports. DOC carries out a two-phase investigation into the pricing and sales practices of the company in the United States and in its home market (or if there are few home-market sales, in third-country markets). The DOC selects a handful of foreign producers and exporters to investigate. On the basis of the submitted information (and taking into account any objections by the petitioning US industry), the DOC will establish preliminary dumping margins, which is the percentage by which US prices are found to be lower than the normal value (a calculated home market price). From that time forward, all imports of the product under investigation are subject to an antidumping duty deposit in the amount of the applicable preliminary dumping rate.
After the DOC conducts an on-site audit at the responding companies’ facilities and legal briefing, the DOC will calculate a final dumping margin. All future entries are subject to a duty deposit at the rate found. Each year thereafter, an annual review may be requested in which entries in the past year are examined in order to establish the actual dumping margin. The deposit rate is adjusted to reflect the new rate and excess deposits may be refunded.
In responding to the DOC dumping investigation a foreign company's U.S. legal counsel can assist in the following:
Internally review the company's selling and pricing practices to identify potentially important issues regarding product characteristics, selling practices, market differences, movement and sales expenses, and pricing;
Establish and maintain an open dialogue with the DOC investigators in order to ensure their understanding of the data and encourage favorable determination of discretionary issues;
Prepare for and respond to the DOC's initial dumping questionnaire and supplemental questionnaires. This will include a detailed narrative response providing information on the company's sales to the United States and the reference market;
Establish an estimate of the potential duty that can be anticipated under various scenarios, to identify significant issues in the case;
Prepare for and assist with on-site verification at the company's home office as well as at its U.S. importer or subsidiary (if any), including a thorough review and internal audit to ensure that all submitted information is verifiable, organized, and presented in the required manner;
Assist in complying with customs regulations if dumping margins are found in preliminary determination;
Prepare and submit legal briefs and participate in oral hearings advocating the legal position of the company;
B. ITC Investigation
The ITC’s task is to establish the existence of injury to the US industry caused by the imports of the product into the United States. The essential issues in the ITC's investigation are whether the US industry is materially injured (or threatened with material injury) and whether the allegedly dumped imports are a cause of that injury. The ITC performs its investigation in two stages: a preliminary stage, which begins immediately after a case is initiated, and a final stage, which takes place after the DOC has done its investigation.
Frequently, several foreign respondents combine their resources to engage a single representative or to present a unified position. Smaller companies can sometimes rely on the efforts of larger companies to mount the defense since each country’s impact is considered together. If the ITC finds that the imports complained of do not cause injury to the US industry at either the preliminary stage or at the final stage, the entire investigation is dismissed.
The central tasks to be performed by a foreign company's legal counsel in this phase of the proceeding include the following:
Collect data on the US market for the subject product and the levels of domestic production, consumption, and imports;
Develop theories of the case to refute petitioners' allegations that the US industry is materially injured and that imports are a cause of injury, including consultations with the foreign manufacturer, its U.S. importers, and its customers;
Help shape the kinds of questions the ITC will ask of US importers and producers in consultation with ITC staff in order to ensure that the questionnaire will elicit information that will support a favorable view of the evidence;
Assist the foreign producer and its importers in responding to ITC questionnaires;
Evaluate data submitted by US producers and compare their responses with foreign producers' data to further develop and support theories of the case;
Prepare presentation for ITC hearings, including coordinating with other respondents' counsel, working with economists, and preparing witnesses to support theories; participate in the ITC hearings;
Draft and file post-hearing briefs to the ITC, which may require the preparation of affidavits of company officials, importers, and/or customers.
We offer clients a comprehensive range of legal services for business owners, from legal formation to operational and transactional services. When clients are in the start-up phase, we assist them in selecting and forming a business entity for their venture. Once the entity is formed, we advise clients on the required formalities to maintain their corporate structure and limited liability. We also provide general transactional services, including negotiation and review of commercial real estate leases, business buy/sale agreements, and contracts for employees/independent contractors, suppliers, and customers.
