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Laerdal Medical Corp. v. International Trade Commission

In Default Cases, ITC May Not Revisit Pleading Sufficiency Post-Institution

Laerdal Medical Corp. v. International Trade Commission910 F.3d 1207 (Fed. Cir. Dec. 7, 2018) (Lourie, O’MALLEY, Stoll) (ITC) (3 of 5 stars)

Fed Cir part-reverses, part-vacates ITC’s determination that no remedy was warranted for Laerdal’s trade dress claims against defaulting respondents. The ITC had held, at the final determination stage, that Laerdal had not sufficiently pleaded its claims. 19 U.S.C. § 1337(g)(1) did not permit the ITC to terminate Laerdal’s investigation sua sponte post-institution. It rejects the ITC’s argument that it must find a § 1337 violation properly pleaded before issuing relief. § 1337(g)(1) does not use permissive language, while other subsections (e.g., subsection (g)(2), (d)(1)) do. “[T]he Commission may not institute an investigation and then decide post-hoc that it is dissatisfied with an unchallenged complaint upon which the investigation was predicated.” Op. at 10. The opinion also cites the purpose of the subsection, and the legislative history, as supportive. On remand, the ITC should determine an appropriate remedy.

KEYWORDS: ITC; TRADE DRESS; PLEADING STANDARDS; DEFAULT