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IP LitigationITC Litigation

Effect of the government shutdown on Section 337 investigations

October 9, 2013

IP LitigationITC Litigation

Effect of the government shutdown on Section 337 investigations

October 9, 2013

Back to Fish's Litigation Blog

 

As the government shutdown continues, branches of the judicial system are providing guidance as to how it will impact their forums. What can you expect? Monty Fusco, a 25 year veteran of the ITC has provided some guidance based on a recent ITC announcement and the Commission’s actions during the previous government shutdown in 1996.

  • The Commission announced it has tolled all schedules and deadlines in all investigations.  When the Commission reopens, schedules will pick up where they were.
    • This seems more important for investigations the ITC does under other trade statutes (e.g. anti-dumping, countervailing duties, etc.) where firm deadlines are set in the statute.  Section 337 schedules, on the other hand, are for the most part set by the judge after he/she establishes the target date.
  • Notwithstanding the announced tolling, once the Commission is up and running again, the judge in any individual investigation has the power to reset all dates (subject to Commission approval if the investigation is scheduled to last more than 16 months).  As a result, investigations will probably be affected differently.
    • An investigation that is in its later stages (e.g. on the eve of or has just concluded hearing, or is in front of the Commission) will more than likely have the entire remainder of its schedule pushed back by the amount of time the Commission is closed.  This will enable the Staff to participate fully and also give the judge and Commission all of their allotted time to write their decisions.
    • An investigation in its middle stages will probably see some change to its schedule,  particularly if needed to accommodate the schedules of the judge or Staff attorney.  Depending on the circumstances, it may not be necessary to delay the resolution of the investigation by the full amount time the Commission was closed.
    • For a matter in the early stages, it’s an open question.  If the government reopens soon, there may be no need to push back any of the schedule (although the judge is authorized to do so).  The longer the shutdown lasts, however, the more likely it is that some changes to the schedule will be necessary.
  • Any investigations that get instituted within a month or two after the Commission reopens will probably get a longer than usual schedule as the Commission works through the delayed investigations.

 

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One response to “Effect of the government shutdown on Section 337 investigations”

  1. […] the government shutdown, such as the International Trade Commission (see our blog post on the effect of the government shutdown on Section 337 investigations), federal courts continue to operate using reserve funds, often deeming all employees of the court […]

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