[00:00:00] Speaker 06:
And after the first argument, we're going to recess briefly because the panel will be reconstituted.

[00:00:06] Speaker 06:
So we will hear argument first in number 1304, Giorgio Futhink versus United States, Mr. Shorter.

[00:00:23] Speaker 07:
Good morning, may I please support?

[00:00:25] Speaker 07:
My name is Michael Schor, I'm from the law firm of Arnold and Pritter, appearing this morning on behalf of Plaintiff Giorgio Foods, Inc.

[00:00:33] Speaker 07:
Unlike prior Bird Amendment cases, this case does not pose the question whether a non-petitioning domestic producer must indicate support.

[00:00:42] Speaker 07:
We agree that it does.

[00:00:43] Speaker 07:
This case instead poses the question how it must do so.

[00:00:48] Speaker 06:
How is this different from Ashley?

[00:00:50] Speaker 07:
The Ashley plaintiffs pled

[00:00:54] Speaker 07:
that they supported the petition only by submitting a questionnaire response.

[00:00:58] Speaker 07:
That was the only indication of support.

[00:01:00] Speaker 02:
Ashley held that the mere submission... Well, I guess what I'm wondering is, how come with respect to India, you're not the same as Ashley, and then with respect to Chile, China, and Indonesia, you're not like Ethan Allen in the Ashley furniture case?

[00:01:18] Speaker 07:
Because we pled specifically

[00:01:21] Speaker 07:
that our questionnaire response as a whole supported all four petitions, we pledged specifically.

[00:01:28] Speaker 02:
But you also expressly said you'd take no position on when you were asked to answer whether you support the petition or not.

[00:01:37] Speaker 07:
Right, and that creates a factual question for a prior fact to resolve as to whether on balance we supported the petition or did not.

[00:01:45] Speaker 02:
But didn't we say in Ashley Furniture that it would be incongruous

[00:01:49] Speaker 02:
Do you say that taking no position or certainly opposing the petition would be equated with supporting the petition?

[00:01:58] Speaker 07:
It might be in Congress, but it's possible.

[00:02:00] Speaker 07:
Let me give you another hypothetical.

[00:02:02] Speaker 07:
Suppose we checked off the take no position box.

[00:02:04] Speaker 07:
But in the response to every single other question, we wrote, we support the petition.

[00:02:10] Speaker 07:
Did you do that?

[00:02:11] Speaker 07:
We did not do that, but we did other things.

[00:02:13] Speaker 07:
Was there any statement in the questionnaire saying that you supported the petition?

[00:02:18] Speaker 07:
We say, we pled that there were, yes.

[00:02:21] Speaker 07:
Well, no, we'll show it.

[00:02:22] Speaker 07:
Where in the questionnaire did you say we support the petition?

[00:02:37] Speaker 07:
If you look at the joint appendix on page 164, at the very top we are asked the question, do you have any negative impact of imports from these four countries?

[00:02:53] Speaker 07:
We talk about the low price import situation, that imports of canned mushrooms at low prices

[00:02:59] Speaker 07:
and will continue to significantly reduce Georgia food sales.

[00:03:03] Speaker 07:
It indicates support.

[00:03:04] Speaker 07:
We're not required to state support.

[00:03:06] Speaker 07:
So there's nothing in the questionnaire where you say, we support the petition.

[00:03:11] Speaker 07:
We pled that our questionnaire response as a whole supports the petition and contains statements that would only... I'm not asking what you pled.

[00:03:21] Speaker 07:
Looking at the questionnaire, is there any statement in the questionnaire?

[00:03:24] Speaker 07:
We did not use the magic words that we state support for the petition or we support or anything, particular magic words.

[00:03:32] Speaker 07:
The statute does not require a declaration of support.

[00:03:35] Speaker 07:
The statute does not require a statement of support.

[00:03:38] Speaker 07:
The statute only requires an indication of support.

[00:03:42] Speaker 03:
Council, let's look back at that same page 164.

[00:03:46] Speaker 03:
and it's asking you any negative impact of imports, and it's specifically asking imports, negative impact of imports from Chile, China.

[00:03:54] Speaker 03:
And you're talking about low-priced import situation continuing, that you anticipate a significant loss.

[00:04:02] Speaker 03:
What do you mean by that statement?

[00:04:06] Speaker 03:
That you anticipate a significant loss as a result of low-priced imports?

[00:04:10] Speaker 07:
Yes, that's what the question asked about.

[00:04:12] Speaker 07:
So yes, that's as a result of low-priced imports from the four countries.

[00:04:15] Speaker 03:
And when you say low-priced imports, are you referring to dumped imports?

[00:04:20] Speaker 07:
The commerce found all those imports to be dumped, so yes.

[00:04:27] Speaker 02:
So I'm not sure what you expect the ITC to do when you say, affirmatively, that you take no position, when they ask you, do you support take no position or oppose the petition?

[00:04:42] Speaker 02:
I mean, you're supposed to answer these questionnaires truthfully and accurately, right?

[00:04:46] Speaker 02:
That's right.

[00:04:47] Speaker 07:
But then you said you take no position.

[00:04:49] Speaker 07:
We're supposed to answer factual questions accurately.

[00:04:51] Speaker 07:
There is no such thing as an inaccurate or accurate statement of opinion.

[00:04:56] Speaker 02:
Of whether you support the petition.

[00:04:58] Speaker 02:
So you can say that you oppose the petition, but in reality you want the ITC to believe that you support the petition?

[00:05:10] Speaker 07:
We can say publicly that we oppose the petition, yet support it privately.

[00:05:14] Speaker 07:
Absolutely.

[00:05:15] Speaker 07:
That is protected by the first amendment.

[00:05:17] Speaker 03:
Let's explore that for a little bit.

[00:05:20] Speaker 03:
Why would that be?

[00:05:21] Speaker 03:
Why would a domestic producer not want to publicly disclose support for the position, but yet work frantically behind the scenes to support?

[00:05:30] Speaker 07:
The easy answer, in this case, and I'll give you a concrete example, Georgia was importing mushrooms from Indonesia into a third country.

[00:05:38] Speaker 07:
And they didn't want to disturb

[00:05:39] Speaker 07:
their relationship with the Indonesian producer.

[00:05:42] Speaker 07:
So they didn't want to publicly support the petition, but they wanted to do so privately.

[00:05:46] Speaker 03:
So if you publicly support a petition, that can lead to backlash of some kind?

[00:05:50] Speaker 07:
Yes, absolutely.

[00:05:51] Speaker 07:
And the court recognized that explicitly in Cathedral Candle.

[00:05:54] Speaker 07:
In the 2005 decision in Cathedral Candle, this court specifically allowed the ITC to treat that information as confidential, precisely because it recognized there could be

[00:06:05] Speaker 07:
There could be adverse business impacts from the release of that information.

[00:06:09] Speaker 07:
Yes, that's exactly what we urge.

[00:06:10] Speaker 02:
But you didn't submit any kind of confidential letter to the ITC indicating?

[00:06:15] Speaker 07:
We did submit a confidential letter, yes.

[00:06:18] Speaker 07:
No, but you didn't submit a confidential letter saying, we said this publicly, but what we really mean is that we support it.

[00:06:25] Speaker 07:
No, but we indicated that through other means.

[00:06:27] Speaker 07:
How?

[00:06:28] Speaker 07:
The ITC came to Georgia Foods on a site visit.

[00:06:32] Speaker 07:
We were there with petitioners counsel.

[00:06:34] Speaker 07:
petitioners council helped us prepare for that site visit and when the ITC showed up at the door we stood there side by side with their council.

[00:06:42] Speaker 07:
We're supposed to say that you support the petition because you stood next to their lawyer?

[00:06:47] Speaker 07:
No, you're supposed to, well not you, the trier of fact is supposed to weigh all of the evidence and make a determination of whether or not, it may be that we lose, it may be that a trier of fact concludes that by checking the box take no position

[00:07:03] Speaker 07:
versus everything else we did.

[00:07:05] Speaker 07:
And on balance, the checking the box outweighs everything else.

[00:07:10] Speaker 07:
That's a possible determination.

[00:07:12] Speaker 07:
But on a motion to dismiss, you can't resolve that question.

[00:07:15] Speaker 03:
The site visit, was this a verification?

[00:07:17] Speaker 07:
The ITC doesn't strictly do verifications.

[00:07:20] Speaker 07:
This was just a familiarization visit.

[00:07:23] Speaker 07:
They weren't checking Georgia's data.

[00:07:25] Speaker 03:
They're looking at the production process?

[00:07:27] Speaker 07:
Yeah, to learn about the production process.

[00:07:28] Speaker 03:
And that's voluntary?

[00:07:30] Speaker 07:
It was voluntary.

[00:07:31] Speaker 07:
We did not have to do it.

[00:07:34] Speaker 07:
This court, Judge Raina, your decision in the Shea Sydney case, you specifically ruled on this very question.

[00:07:43] Speaker 07:
You held, quote, both the ITC and customs, however, contend that section 1675 C requires not just the submission of letters of responses, but also the inclusion of an affirmative declaration of support for the petition.

[00:07:58] Speaker 07:
But the statute's plain language

[00:08:00] Speaker 07:
does not require that producers indicate an expression of support other than through letter.

[00:08:06] Speaker 07:
You further said, it is evidence that the ITC considered only the boxes Shaysini checked in making its decision.

[00:08:13] Speaker 07:
Such an approach is unreasonable.

[00:08:15] Speaker 07:
That's what they're asking you to do here.

[00:08:17] Speaker 07:
This is the very same argument they made.

[00:08:19] Speaker 07:
It was rejected in a prior decision of this court.

[00:08:22] Speaker 07:
That reasoning was not dicta, and it has to be followed.

[00:08:25] Speaker 02:
You did quote something right there from Chase Sidney that said, 1675 CD requires not just the submission of letters or responses, but also the inclusion of an affirmative declaration of support for the petition.

[00:08:37] Speaker 02:
So where is your inclusion of an affirmative declaration of support for the petition?

[00:08:42] Speaker 07:
It's not required.

[00:08:44] Speaker 07:
No, Chase Sidney, no.

[00:08:45] Speaker 07:
Does not require, does not require.

[00:08:48] Speaker 07:
They rejected that.

[00:08:49] Speaker 07:
That was their argument and it was rejected.

[00:08:51] Speaker 07:
Shea Sidney held that the submission of a questionnaire response by itself.

[00:08:56] Speaker 07:
Now, you're not supposed to interrupt.

[00:08:58] Speaker 07:
You keep interrupting.

[00:09:00] Speaker 07:
I apologize, Your Honor.

[00:09:02] Speaker 06:
In Ashley, they said, because you didn't formally indicate support, you don't recover.

[00:09:10] Speaker 06:
And it distinguished Shea's ID on the ground.

[00:09:14] Speaker 07:
that there in the preliminary thing, there was an indication of support, correct?

[00:09:20] Speaker 07:
Ashley held that it wasn't enough merely to submit a question out response, that you had to do more to show that you were on the... Well, you had to affirmatively indicate support, right?

[00:09:33] Speaker 07:
Yes.

[00:09:34] Speaker 07:
They did not do anything to affirmatively indicate support.

[00:09:38] Speaker 07:
Judge Dyke, I would go back to the very reasoning in your decision in SKA.

[00:09:43] Speaker 07:
You specifically held that there was a First Amendment protected interest and expressive conduct of support for a petition.

[00:09:50] Speaker 07:
You held therefore that it was not sufficient to rely on that alone.

[00:09:55] Speaker 07:
You had to have litigation support.

[00:09:57] Speaker 07:
In the decision you stated, the statute is capable of a construction to reward litigation support actions rather than the expressions of particular views.

[00:10:07] Speaker 07:
It cannot be the case that the mere expression of a particular view is dispositive.

[00:10:12] Speaker 00:
We're not saying it couldn't be considered.

[00:10:13] Speaker 07:
Of course it's not dispositive, but the question is whether it's necessary.

[00:10:17] Speaker 07:
And SKF specifically said it is necessary.

[00:10:20] Speaker 07:
SKF did not say it was necessary.

[00:10:22] Speaker 07:
SKF, they didn't raise the issue because SKF plaintiffs did not plead that they supported the petition in any way other than through the federal response.

[00:10:37] Speaker 03:
It appears to me that you're arguing that you have pledged facts in a different manner than what was pledged in Ashley.

[00:10:46] Speaker 03:
Can you explain that?

[00:10:47] Speaker 07:
Yes.

[00:10:48] Speaker 07:
The Ashley plaintiffs checked off the box, take no position, and opposed the petition.

[00:10:55] Speaker 07:
And they did not plead any other facts that they indicated support of the petition in their questionnaire response or took any other actions in support of the petition.

[00:11:05] Speaker 07:
We think we raised a factual question because we pled additional facts.

[00:11:09] Speaker 07:
We pled that our questionnaire response includes statements that would only be made by one supporting the petition.

[00:11:15] Speaker 07:
We pled that the questionnaire as a whole supported the petition.

[00:11:18] Speaker 07:
We pled that we took litigation support actions in support of the petition.

[00:11:23] Speaker 07:
The Ashley plaintiffs had pled none of that.

[00:11:25] Speaker 03:
What do you mean litigation support?

[00:11:27] Speaker 07:
We contributed to the legal fees of the petitioners.

[00:11:30] Speaker 07:
We signed the confidentiality agreement with Petitioners' Council before the petition was filed and provide them our business confidential information to enable them to prepare the petition.

[00:11:40] Speaker 07:
We continue to provide information to the Petitioners' Council throughout the proceedings.

[00:11:44] Speaker 02:
But I thought actually they also, in order to characterize themselves as an affected domestic producer and a supporter of the petition, even though they said they didn't support the petition, they claimed that they assisted

[00:11:59] Speaker 02:
the petition process by answering the questionnaire and providing all of this useful, helpful, assistive data.

[00:12:06] Speaker 07:
That was all they alleged.

[00:12:07] Speaker 07:
We alleged much more, and Ashley, you felt that it wasn't enough simply to submit a questionnaire.

[00:12:12] Speaker 02:
Right, because I think here in Ashley it says, a producer's fair statement that it was a supporter is a necessary, though not sufficient, condition to obtain ADP status.

[00:12:24] Speaker 02:
You have to provide, through your actions, support for

[00:12:29] Speaker 02:
litigation for the petition, but at the same time you also have to make a clean statement that you're a supporter.

[00:12:37] Speaker 07:
That is directly contrary to the holding in Shea Sydney that the IPC considered only the boxes Shea Sydney had checked off.

[00:12:44] Speaker 02:
What am I supposed to do with this statement?

[00:12:46] Speaker 07:
You're supposed to, if it's inconsistent with Shea Sydney, the earlier decision controls.

[00:12:51] Speaker 07:
So you're saying what, we have to repudiate this?

[00:12:56] Speaker 07:
I think you try to reconcile the three decisions, and I have a way of doing that.

[00:13:00] Speaker 07:
Or, if you can't reconcile them, the early decision control.

[00:13:04] Speaker 03:
Let's go back a little bit.

[00:13:07] Speaker 03:
Is my understanding correct that in this situation, the ITC based its decision on whether you were an affected domestic party or not, producer, solely on the box issue?

[00:13:22] Speaker 07:
Solely.

[00:13:22] Speaker 07:
Exclusively.

[00:13:23] Speaker 07:
We've pled that.

[00:13:24] Speaker 07:
And in the administrative record, when they submitted our questionnaire response as part of the record, they just included that page.

[00:13:30] Speaker 07:
They admitted they didn't look at the rest of the questionnaire.

[00:13:35] Speaker 06:
All right, Mr. Sherry, you're in your bubble time.

[00:13:37] Speaker 06:
I'm going to save the rest of the time.

[00:13:45] Speaker 06:
Thank you.

[00:13:47] Speaker 06:
I'll save the rest of the time.

[00:13:48] Speaker 04:
OK.

[00:13:48] Speaker 04:
Mr. Tomlinson.

[00:13:49] Speaker 04:
Thank you, your honor.

[00:13:52] Speaker 04:
Martin Tomlinson for the United States.

[00:13:55] Speaker 04:
Your Honor, appellants in this case are trying to have it both ways.

[00:13:58] Speaker 04:
I think it's very clear.

[00:13:59] Speaker 04:
They fully admit that they considered all the relevant factors and made a specific business decision that they did not want to be publicly associated with this petition.

[00:14:10] Speaker 04:
And for that reason, they specifically expressed to ITC in this questionnaire that they opposed this petition with regard to India and did not take a position with regard to other countries because they did not want to jeopardize

[00:14:25] Speaker 04:
other business relationships with other countries.

[00:14:26] Speaker 03:
Wouldn't you say that that's forcing a U.S.

[00:14:29] Speaker 03:
party to make an expression that they otherwise would not make?

[00:14:34] Speaker 03:
No, Your Honor.

[00:14:36] Speaker 03:
If by their actions they support the petition, aren't you forcing them to publicly disclose or to make some sort of assertion that that's against their business interests?

[00:14:47] Speaker 03:
And how does that reconcile with the First Amendment?

[00:14:52] Speaker 04:
There's no compelled speech here, your honor.

[00:14:54] Speaker 04:
Nobody from the government ever said, you have to say we support this.

[00:14:58] Speaker 04:
Nobody came to them and said, you have to say yes.

[00:15:01] Speaker 03:
Well, that's what you're saying now.

[00:15:02] Speaker 03:
You're saying, if you have a party that assists the petitioner in the early stages of the initiation, and gathering data together, getting the domestic producers together, and funding the litigation, and yet they, for business reasons,

[00:15:20] Speaker 04:
check a box that says do not support but everything else they do does support isn't that isn't that a violation of the first amendment no your honor because they still they were still free to do that nobody's nobody's saying we're going to take their business way put them in prison anything like that it is simply in accordance with the the reward construction of the statute that this court adopted in skf we're simply saying

[00:15:47] Speaker 04:
The only domestic producers that get rewarded under this statute are those who support the petition.

[00:15:53] Speaker 03:
Yeah, but you're interpreting support to mean whether you have expressly checked the box or not.

[00:16:02] Speaker 03:
And you're not interpreting support to mean other actions, like making statements such as, if low price import situation continues, we're going to lose more business, we're going to shut down plants, lay off workers.

[00:16:14] Speaker 03:
That's exactly what a petitioner alleges.

[00:16:18] Speaker 04:
Well, it's exactly what some petitioners allege, Your Honor.

[00:16:22] Speaker 03:
All petitioners allege that dumped imports or severely low-priced imports are causing them commercial damage.

[00:16:29] Speaker 04:
That's correct, Your Honor.

[00:16:30] Speaker 04:
All petitioners do allege that, but not all who allege that are petitioners.

[00:16:34] Speaker 04:
And the facts of this case show that very clearly, because you have companies like Giorgio, who are maybe similar situated in some ways to petitioners, but because of these entangling business interests with overseas companies,

[00:16:46] Speaker 04:
decide, well, it's actually not in our best interest for this petition to go forward and be successful.

[00:16:51] Speaker 04:
And therefore, even though maybe we are suffering some harm, we actually benefited more in other ways if this petition does not go forward and ultimately be successful.

[00:17:02] Speaker 04:
So therefore, we don't want this petition to succeed.

[00:17:05] Speaker 04:
And they're asking ITC to do something, I think, very troubling and frankly, probably impossible.

[00:17:10] Speaker 03:
How can they not want the petition to succeed if they help pay the lawyer's fees in order to bring the petition

[00:17:16] Speaker 03:
They provide information and make statements such as this.

[00:17:19] Speaker 03:
They don't have to make a statement that low-priced imports are the cause of lost business, of injury.

[00:17:28] Speaker 03:
This is an injury statement here, and it identifies how they're being injured.

[00:17:34] Speaker 03:
That's correct, Your Honor, but injury is a distinct concept from support.

[00:17:37] Speaker 04:
And if they... How is it?

[00:17:39] Speaker 03:
I mean, if you're saying I'm being injured by

[00:17:41] Speaker 03:
these low-priced imports from these three countries, how is that not supporting and in support a statement that's made in support of the petition?

[00:17:50] Speaker 03:
ITC is going to look at that and go, well, here we go.

[00:17:52] Speaker 03:
Here's another further evidence, substantial evidence, of material injury.

[00:17:58] Speaker 07:
what here may be a question better suited to mister for who can represent exactly why his client decided but it's not the only answer that in these analogous areas of attorneys fees and false claims act the fact that you actually have to be a plaintiff to uh... get attorneys fees as opposed to providing support behind the scenes has always been uh... of the marker of whether you recover and that's not been seen to be a first amendment

[00:18:26] Speaker 04:
Certainly, Your Honor.

[00:18:27] Speaker 04:
And this court addressed this in SKF.

[00:18:29] Speaker 04:
And certainly, I do think it's important to this court to keep in mind the two analogies drawn by this court in SKF, which was that this supporters under the CDSOA are like QUITAM petitioners.

[00:18:41] Speaker 04:
And QUITAM petitioners affirmatively bring an action, affirmatively put their name on the petitioner's plaintiff, bring an action, as opposed to the other analogy, the counter analogy this court used was

[00:18:55] Speaker 04:
you know, third parties that may respond to discovery.

[00:18:58] Speaker 04:
And you can provide discovery responses either under subpoena or otherwise that may actually be very helpful ultimately in resolving the action.

[00:19:08] Speaker 07:
In a government antitrust case, if you don't sign on as a plaintiff but monetarily support the plaintiff and help gather information, you have no claim to attorney's fees, right?

[00:19:21] Speaker 05:
That's correct, Your Honor.

[00:19:23] Speaker 02:
I have a question.

[00:19:24] Speaker 02:
Isn't it true somewhere that it says that ITC, to try to figure out whether there's a material injury to a domestic industry, they have to figure out whether at least 25% of the domestic producers are indicating support for that issue?

[00:19:45] Speaker 04:
Your Honor, actually, I believe the 25% number is related to commerce's initial determination of whether there's industry support.

[00:19:53] Speaker 04:
when there's a petition filed on behalf of industry, then at a later stage, ITC actually makes a material injury determination.

[00:20:00] Speaker 04:
There's no hard and fast bright line removal.

[00:20:04] Speaker 04:
The 25% does not apply to that.

[00:20:06] Speaker 02:
Okay, and so whether it's Commerce or ITC, when they are looking at these questionnaire responses, are they trying to figure out support for the petition based on whether they're checking the three boxes?

[00:20:23] Speaker 02:
Or in addition to looking at those three boxes, did they look at all the sum and substance of the questionnaire responses to glean whether or not, in fact, when you look at the questionnaire responses as a whole, you can conclude that there is support for the petition in spite of the fact that maybe the box that says no support or take no position has been checked.

[00:20:47] Speaker 04:
You understand my question?

[00:20:49] Speaker 04:
I do, your honor.

[00:20:50] Speaker 04:
That question, I'm happy to answer if you'd like.

[00:20:52] Speaker 04:
That question may be better suited to counselor from the ITC who's following me, who may be better able to represent exactly what the ITC looks at in making this determination.

[00:21:02] Speaker 04:
My understanding is that they're not strictly limited to the one question when making the injury determination.

[00:21:09] Speaker 06:
But I would... You were talking about the initial determination by commerce, and commerce goes by

[00:21:15] Speaker 06:
the boxes, right?

[00:21:17] Speaker 07:
That's my understanding.

[00:21:19] Speaker 03:
And that's to meet the standing, the 25% standing issue, correct?

[00:21:25] Speaker 03:
To initiate a petition.

[00:21:27] Speaker 04:
To determine whether there's industry support in a petition that's been filed by those within the industry.

[00:21:33] Speaker 04:
I believe there's a separate procedure by which Commerce can initiate an action on its own.

[00:21:37] Speaker 04:
Correct.

[00:21:38] Speaker 03:
And the boxes themselves on the questionnaires

[00:21:42] Speaker 03:
those boxes predated the Byrd Amendment.

[00:21:45] Speaker 03:
Is that correct?

[00:21:47] Speaker 04:
That's correct, Your Honor, and I think it's important to note that Congress was likely aware that... The Byrd Amendment doesn't refer to the boxes, does it?

[00:21:54] Speaker 04:
It does not specifically refer to the boxes, but it's important to note that the Byrd Amendment only gave ITC 60 days to make determinations as to who was a supporter with regard to every anti-dumping order then in existence, which there were hundreds.

[00:22:08] Speaker 04:
And so it would have been unreasonable for Congress to expect ITC to

[00:22:12] Speaker 04:
read through hundreds of thousands of pages and somehow discern what a party's true intent was, instead of simply taking them at its word.

[00:22:19] Speaker 04:
And I see that I'm over my time.

[00:22:20] Speaker 04:
I don't want to cut into my colleague's time.

[00:22:22] Speaker 04:
So unless the court has any further questions for me.

[00:22:25] Speaker 04:
OK.

[00:22:26] Speaker 04:
Thank you, Mr. Thompson.

[00:22:27] Speaker 04:
Thank you.

[00:22:37] Speaker 05:
Please, the court.

[00:22:38] Speaker 05:
Sorry, Your Honor.

[00:22:39] Speaker 03:
Is that time of the year?

[00:22:40] Speaker 03:
In this particular instance, did ITC look beyond just checking the boxes and making this decision?

[00:22:48] Speaker 05:
The ITC looks at the questionnaire.

[00:22:50] Speaker 05:
The questionnaire asks the specific question.

[00:22:53] Speaker 03:
I'm asking, did the ITC simply look at the box that was checked, or did it also look at the content of the questionnaire response to determine whether there's support expressed within the content?

[00:23:12] Speaker 05:
It doesn't just go to the questionnaire and simply look at the question.

[00:23:16] Speaker 05:
It will look at the questionnaire in total.

[00:23:19] Speaker 05:
If there is nothing and there is no expectation that there will be anything else because there is the direct answer to the question that's at issue.

[00:23:29] Speaker 05:
Do you support the petition?

[00:23:30] Speaker 05:
Do you oppose the petition?

[00:23:32] Speaker 05:
Do you take no position?

[00:23:34] Speaker 05:
It would seem that an answer to a question that's that direct

[00:23:40] Speaker 05:
would be dispositive in terms of the position of the party asserting that.

[00:23:45] Speaker 07:
Well, I'm not understanding this.

[00:23:47] Speaker 07:
As I understand it, there's a bright line rule for the initiation of these proceedings, which says there has to be 25% support.

[00:23:54] Speaker 07:
Correct.

[00:23:55] Speaker 07:
And that's not something the ITC admits.

[00:23:57] Speaker 05:
No.

[00:23:57] Speaker 05:
That's commerce.

[00:23:59] Speaker 05:
We had a lot of confusion throughout these cases about that.

[00:24:02] Speaker 05:
That's a commerce.

[00:24:03] Speaker 07:
But that's a bright line rule at commerce.

[00:24:05] Speaker 07:
It's in the statute.

[00:24:06] Speaker 07:
And it's based on the questionnaire.

[00:24:08] Speaker 05:
No, sir.

[00:24:09] Speaker 05:
It is not based on the question.

[00:24:11] Speaker 05:
That's where the confusion enters in.

[00:24:13] Speaker 05:
When a petitioner files a petition, they file at the commission so we can get ready because we don't have a lot of time in the beginning, and they file at Commerce.

[00:24:22] Speaker 05:
It's Commerce's obligation under the statute to initiate the investigation.

[00:24:29] Speaker 05:
On the face of the petition, there must be at least 25% of industry support.

[00:24:33] Speaker 05:
the industry must have supported that or commerce will reject the position.

[00:24:37] Speaker 05:
Industry is both producers and workers who produce.

[00:24:40] Speaker 05:
It can be, yes sir.

[00:24:42] Speaker 07:
It's the production and who represents what... So someone who rejects oppose or don't support isn't counted in arriving at the 25%.

[00:24:51] Speaker 05:
That is not part of their... They do their exercise separately from what the commission does.

[00:24:57] Speaker 05:
The commission sent out those questionnaires after an issue.

[00:25:00] Speaker 05:
Well, I understand.

[00:25:01] Speaker 07:
But I'm not asking you about what you do.

[00:25:03] Speaker 07:
I'm just trying to confirm the difference between what you do and what Commerce does.

[00:25:09] Speaker 07:
As I understand it, Commerce applies the Bright Line test from the face of the petition in determining the 25%.

[00:25:14] Speaker 07:
Yes.

[00:25:16] Speaker 07:
But that when later on in the proceeding, when it comes to a determination of injury, it's beyond the face of the petition.

[00:25:26] Speaker 05:
No, sir.

[00:25:27] Speaker 05:
Well, they only need to get to the 50% threshold.

[00:25:30] Speaker 05:
The Commission tries to capture the entire industry.

[00:25:33] Speaker 05:
So we'll send questionnaires to the entire industry.

[00:25:36] Speaker 05:
They don't need more than 50% in order to initiate the petition of industry support.

[00:25:42] Speaker 05:
And it doesn't even have to be a... The boxes are irrelevant to material injury.

[00:25:48] Speaker 05:
It is one of the considerations that the Commission

[00:25:53] Speaker 05:
uses in making its injury.

[00:25:55] Speaker 03:
Can't you check a post on the box, but yet are you saying that the ITC will not use the data in reaching its injury?

[00:26:05] Speaker 05:
No, of course the ITC will use the data.

[00:26:07] Speaker 05:
But the go to the data, the responses, what is your circumstance with respect to particular subject imports?

[00:26:16] Speaker 05:
We are being injured by those particular subject imports.

[00:26:20] Speaker 05:
But they still may have said that they oppose the petition for reasons they oppose the petition.

[00:26:26] Speaker 05:
Having nothing to do, they might be injured, but they might not want duties.

[00:26:30] Speaker 05:
That's the question we're asking.

[00:26:31] Speaker 05:
Do you want us to conduct an investigation that will lead to a material injury finding, or do you oppose such a thing?

[00:26:39] Speaker 03:
We're not asking them about... What's your response to your friend's response to a question that there could be pure commercial reasons

[00:26:49] Speaker 03:
as to why they make the decision whether to check a particular box or not.

[00:26:56] Speaker 05:
That may be true.

[00:26:57] Speaker 05:
But they're making that decision in the context of do you want duties imposed versus what is your other commercial?

[00:27:05] Speaker 03:
What about the situation here, for example, what do they tell you?

[00:27:07] Speaker 03:
They do want duties imposed in the content of their questionnaire response.

[00:27:13] Speaker 03:
It doesn't say that, Your Honor.

[00:27:14] Speaker 05:
What they're giving you is their commercial condition with respect to the subject.

[00:27:19] Speaker 03:
Well, here it's making a statement that it's low-priced imports, that if it continues, that there's going to be significant loss of its business.

[00:27:28] Speaker 03:
It's stating, I'm being injured.

[00:27:30] Speaker 03:
I'm being injured by low-priced imports.

[00:27:33] Speaker 03:
Isn't that saying, doesn't ITC take those type of statements as evidence of injury?

[00:27:42] Speaker 05:
Yeah.

[00:27:43] Speaker 05:
but not evidence of industry support, your support for the petition.

[00:27:48] Speaker 05:
You've answered that over here.

[00:27:50] Speaker 05:
You've said, I'm being injured by these imports, but I don't want duties, for whatever reason.

[00:27:55] Speaker 05:
It's immaterial to the commission why you don't want to do it.

[00:27:58] Speaker 03:
Do you require that they say in their, that parties assert, I want duties or I don't want duties?

[00:28:04] Speaker 05:
We asked the question, your honor.

[00:28:07] Speaker 05:
In every, my time is running out.

[00:28:09] Speaker 05:
I'm not finished answering.

[00:28:10] Speaker 05:
In every single investigation,

[00:28:13] Speaker 05:
Preliminary and final questionnaire responses.

[00:28:16] Speaker 05:
In the phases, there is a staff report that is developed for each phase of the proceeding.

[00:28:24] Speaker 05:
So when the preliminaries send the questionnaires, get the questionnaires back, staff looks at them, they see that there's a tabulation in the staff report.

[00:28:31] Speaker 05:
Who the domestic producer is, how much they represent, where they are, how many factories they have, where they're located, and their position on petition.

[00:28:41] Speaker 05:
Do you support, do you not support, do you oppose?

[00:28:44] Speaker 05:
What is their position?

[00:28:46] Speaker 05:
If you have a circumstance that it comes in, like Mr. Schor was saying, oh, well, we checked, we opposed, but throughout the rest of it, we wrote, we support, we support, we support, that would trigger a response from the staff or certainly the commission.

[00:29:03] Speaker 05:
What are you trying to say here?

[00:29:04] Speaker 05:
Because we tabulate this, and you're saying different things.

[00:29:10] Speaker 05:
That's why I say when you ask me,

[00:29:12] Speaker 05:
Do they, we only look at check the box is because invariably that's where the parties will state their case, where we ask them the question.

[00:29:21] Speaker 03:
So in this case, did you use a staff report to make the determination whether they're an affected domestic producer?

[00:29:28] Speaker 03:
No, Your Honor, we used the questionnaire.

[00:29:29] Speaker 03:
You only relied on whether they checked the box or not.

[00:29:32] Speaker 03:
Their statement, well, they didn't check the box, they actually wrote it out.

[00:29:35] Speaker 05:
Right, they wrote it out.

[00:29:36] Speaker 05:
Their statement and their questionnaire response, yes.

[00:29:40] Speaker ?:
Okay.

[00:29:40] Speaker 06:
Thank you, Your Honor.

[00:29:41] Speaker 06:
Thank you, Mr. Frensy.

[00:29:42] Speaker 06:
Mr. Galloway?

[00:29:48] Speaker 00:
Your Honor, it's Michael Corsi from Kelly Dry and Warren.

[00:29:51] Speaker 00:
I'm on behalf of Monterey Mushrooms, who has been a domestic producer and petitioner since 1998 when the petition was filed.

[00:29:59] Speaker 00:
I just have two points I'd like to make, but I think they go to the heart of what has been concerning you here.

[00:30:05] Speaker 03:
Did Georgia assist you in bringing the petition?

[00:30:09] Speaker 00:
Yes.

[00:30:11] Speaker 03:
Did they pay attorney's fees?

[00:30:13] Speaker 00:
I do not know.

[00:30:14] Speaker 00:
That was handled by a escrow agent.

[00:30:18] Speaker 00:
How attorneys were paid, I did not know who contributed what.

[00:30:24] Speaker 03:
Did they meet with you in determining where the fees were?

[00:30:27] Speaker 00:
Yes, they met with us under a very harshly coded, a confidentiality agreement that they required.

[00:30:39] Speaker 00:
The whole point here is Giorgio tried to control this investigation from the very beginning, from behind the scenes.

[00:30:46] Speaker 00:
We're talking about this questionnaire response.

[00:30:48] Speaker 00:
If you look in the JA, at the top of every page says business proprietary.

[00:30:55] Speaker 00:
That was a secret.

[00:30:56] Speaker 00:
Whatever they wrote in there was a secret to the ITC.

[00:30:59] Speaker 00:
The ITC wasn't going to tell everyone that Giorgio is supporting the petition.

[00:31:05] Speaker 00:
They, in a confidential document to... What is the point that you're making?

[00:31:10] Speaker 00:
Well, the point is that they could have protected their, you know, they didn't want the world to know, they didn't want their business people to know that they didn't support the petition.

[00:31:19] Speaker 00:
You mean they could have said... They could have checked the boxes, support, it's an APO document.

[00:31:25] Speaker 00:
It didn't become public until Bird Amendment came into force.

[00:31:28] Speaker 00:
Then there was a little fight between Giorgio and the IDC, and Giorgio ultimately said, we'll go public at this point.

[00:31:34] Speaker 00:
back at the investigation.

[00:31:36] Speaker 00:
So this is really misleading to be giving all this, saying that this was forcing Georgia to go.

[00:31:42] Speaker 03:
When you said the box originally, or they wrote in the margin, was that under the Byrd Amendment?

[00:31:49] Speaker 03:
Were they responding?

[00:31:50] Speaker 03:
No.

[00:31:51] Speaker 03:
They're already responding to the ITC.

[00:31:52] Speaker 03:
Right.

[00:31:52] Speaker 03:
This was before the Byrd Amendment.

[00:31:55] Speaker 03:
Yes.

[00:31:56] Speaker 03:
So when they were deciding what I'm going to do with this box,

[00:32:03] Speaker 03:
I mean, the Byrd Amendment wasn't even a consideration at that point, correct?

[00:32:08] Speaker 00:
It was not a consideration, but it was a concern of the ITC, obviously, to determine whether a domestic producer supported the petition or took no position or opposed it.

[00:32:19] Speaker 00:
That has had a material effect on the outcome of investigation of the ITC's consideration, considering all its topics, for decades, for as long as the questionnaire response has been out there.

[00:32:29] Speaker 00:
There's a reason for it.

[00:32:30] Speaker 00:
Is that because they're looking for evidence of a material injury?

[00:32:34] Speaker 00:
They're looking for evidence of who supports, generally.

[00:32:38] Speaker 00:
Is this worthwhile?

[00:32:39] Speaker 00:
Is there a general consensus among the group that they're being injured?

[00:32:46] Speaker 03:
But what does having support for a petition have to do with material injury?

[00:32:50] Speaker 03:
What's the connection?

[00:32:52] Speaker 00:
Let me, I guess, try to answer that by going back to the Commerce Department, where Giorgio publicly opposed the Indian... I'm talking about the ITC.

[00:33:00] Speaker 00:
Well, but this is part of the IDC investigation.

[00:33:03] Speaker 00:
It's record, and I think this unmasks the other part of what Giorgio is trying to put over here, that it never took an action in opposition to the petition.

[00:33:11] Speaker 00:
That was a potential death blow to all four cases.

[00:33:15] Speaker 00:
Giorgio says, it's in our brief, all the pages are mocked up.

[00:33:20] Speaker 00:
They said, we are and have been about half the domestic industry.

[00:33:25] Speaker 00:
At initiation, Congress has two questions, one,

[00:33:30] Speaker 00:
Taking the whole industry, just 25% support.

[00:33:33] Speaker 00:
If you get that, you have another question.

[00:33:35] Speaker 03:
Counselor, you heard us.

[00:33:37] Speaker 03:
We were discussing part of the administrative record in this quoted section here that the appellant brought up regarding low-priced imports.

[00:33:48] Speaker 03:
Do you see that as evidence of injury?

[00:33:51] Speaker 00:
Yes.

[00:33:52] Speaker 00:
No, I do not see that as it's not evidence of support.

[00:33:56] Speaker 03:
And here again- I didn't ask that.

[00:33:58] Speaker 00:
I didn't ask that.

[00:33:59] Speaker 03:
Is it evidence of injury?

[00:34:01] Speaker 00:
It's evidence of some injury.

[00:34:02] Speaker 00:
There's no mention there about which countries are importing the product.

[00:34:08] Speaker 03:
Well, I mean, the dumping case involves specific countries.

[00:34:12] Speaker 03:
And it's referring to the low price import situation.

[00:34:16] Speaker 03:
And the heading of the question is China, Chile, and India, and Indonesia.

[00:34:21] Speaker 03:
And it's responding to that.

[00:34:24] Speaker 03:
Are you saying that this is not an expression or evidence of injury?

[00:34:28] Speaker 00:
It is an expression of injury, but it's certainly not an expression of support.

[00:34:38] Speaker 03:
Well, but if a party is providing evidence that goes to prove injury, that's positive, probative of material injury, why is that not supported by the petition?

[00:34:52] Speaker 00:
Well, because they

[00:34:54] Speaker 00:
are doing it secretly, latently.

[00:34:57] Speaker 00:
That's the word.

[00:34:57] Speaker 00:
Well, the answer is that in SKF we said that's not support.

[00:35:06] Speaker 00:
It isn't.

[00:35:09] Speaker 00:
But I think really you're on it.

[00:35:11] Speaker 00:
Let me ask you a question.

[00:35:12] Speaker 02:
Yeah.

[00:35:13] Speaker 02:
All right.

[00:35:13] Speaker 02:
So hypothetically, someone responds to a questionnaire.

[00:35:19] Speaker 02:
And throughout the questionnaire, a line by line detail

[00:35:24] Speaker 02:
serious injury to them due to this alleged dumping.

[00:35:31] Speaker 02:
But they say, officially, they don't support, they don't oppose, they take no position on the petition.

[00:35:40] Speaker 02:
How does that checking of that take no position box really impact the investigation?

[00:35:46] Speaker 00:
But that's a materially different case than here.

[00:35:48] Speaker 00:
Here?

[00:35:49] Speaker 00:
I'm asking a question.

[00:35:51] Speaker 07:
is asking you how the failure to check the box while indicating injury affects the investigation.

[00:36:00] Speaker 00:
Well, how does it affect in the realm of aspects, of characteristics, if that questionnaire that the ITC looks at, combined with the other questionnaires, the checking of the box might be of little relevance for the particular question of injury.

[00:36:17] Speaker 00:
But the IDC does go through.

[00:36:18] Speaker 00:
It went through in this case to make a determination of whether Georgia was in the industry or not.

[00:36:27] Speaker 07:
What you're saying is there's a difference between support and the percentages that are necessary for support in the question of injury.

[00:36:36] Speaker 07:
Is that correct?

[00:36:38] Speaker 07:
Say that one more time, Your Honor.

[00:36:39] Speaker 07:
I'm sorry.

[00:36:40] Speaker 07:
Commerce, in determining whether to initiate an investigation, looks at the questionnaire to see who's support, whether there's 25% support, correct?

[00:36:48] Speaker 00:
Well, commerce does not look at questionnaires, at the IPC questionnaire.

[00:36:53] Speaker 00:
And I think there's real confusion on the panel's part about what exactly happens at the Commerce Department.

[00:37:00] Speaker 00:
A petitioner comes into the petition and tries to present information answering both those questions.

[00:37:05] Speaker 00:
We have enough petitioners here to satisfy the 25% question.

[00:37:09] Speaker 00:
Commerce, you don't have to do anything.

[00:37:11] Speaker 00:
We have enough petitioners here to answer the second question, which is 50%.

[00:37:16] Speaker 00:
Of those domestic producers qualified to answer the second question, do you support?

[00:37:22] Speaker 00:
Some of the domestic producers are importers, like Georgia was.

[00:37:26] Speaker 00:
Now, if you would only look at the Congress's initiation of this.

[00:37:30] Speaker 00:
Wait, wait, wait.

[00:37:30] Speaker 00:
That's done from the face of the questionnaire?

[00:37:34] Speaker 00:
No, this is an after the fact.

[00:37:35] Speaker 00:
Congress will call them and basically will poll the industry.

[00:37:38] Speaker 00:
That's what they call it.

[00:37:39] Speaker 03:
There is no questionnaire in existence.

[00:37:42] Speaker 03:
prior to the initiation of the petition, correct?

[00:37:44] Speaker 00:
Well, there's requirements.

[00:37:45] Speaker 00:
You have to satisfy these requirements.

[00:37:46] Speaker 03:
No, no, no.

[00:37:47] Speaker 03:
There's no... This questionnaire that we're talking about doesn't... Oh, that EC questionnaire.

[00:37:50] Speaker 00:
Yeah.

[00:37:50] Speaker 00:
It doesn't even exist.

[00:37:52] Speaker 03:
Well, before... I mean, you have a draft that parties look at and all.

[00:37:56] Speaker 00:
It's issued days after the petition is filed.

[00:38:00] Speaker 03:
Right.

[00:38:00] Speaker 03:
So the petition is initiated.

[00:38:02] Speaker 03:
And in fact, you as a petitioner have meetings at the Department of Commerce, and you kind of sort out whether there's enough support or not.

[00:38:11] Speaker 00:
You know, that's, you have a requirement to make it showing.

[00:38:18] Speaker 03:
And if it can't... The answer is yes.

[00:38:21] Speaker 03:
Before you file, you have meetings at commerce and you take a look at the petition.

[00:38:26] Speaker 00:
But look what happened here, Your Honor.

[00:38:27] Speaker 00:
In this case, I keep trying to bring your attention back to this case, the domestic producers had accounted for 50% of the industry.

[00:38:35] Speaker 00:
filed a letter with Commerce and said, we oppose India.

[00:38:38] Speaker 00:
A public letter.

[00:38:39] Speaker 00:
We oppose India.

[00:38:41] Speaker 00:
The petitioners, my clients, were scared to death that that was going to be granted for two reasons.

[00:38:46] Speaker 00:
Because if that won, India's gone.

[00:38:51] Speaker 00:
India's gone.

[00:38:52] Speaker 00:
This is a cumulation case.

[00:38:54] Speaker 00:
The other three countries, you're going in with four countries at the ITC saying, ITC treats these as one country.

[00:39:00] Speaker 00:
The eight fourths, one country.

[00:39:02] Speaker 00:
All of a sudden, boom, India's gone.

[00:39:04] Speaker 00:
Those numbers are out.

[00:39:05] Speaker 00:
That's an amazingly hostile action.

[00:39:07] Speaker 00:
Stop.

[00:39:08] Speaker 07:
What we're trying to understand is when you say India's gone because they check a post.

[00:39:14] Speaker 07:
Because they oppose.

[00:39:16] Speaker 00:
Why is that?

[00:39:17] Speaker 00:
That's what we're trying to understand.

[00:39:18] Speaker 00:
Why is that?

[00:39:18] Speaker 00:
Because that's the rule.

[00:39:19] Speaker 00:
So what happened is commerce looked at it and said, well, we could disqualify Giorgio because Giorgio imports.

[00:39:26] Speaker 00:
And we could say they're not able to vote on the 50% question.

[00:39:32] Speaker 00:
And Commerce said, well, we're not going to do that because the way we look at the numbers, the remaining petitioners have more than 50%.

[00:39:42] Speaker 00:
Now, this was a close question.

[00:39:44] Speaker 00:
My client sweated real bullets about what the answer to that was going to be.

[00:39:49] Speaker 00:
Only Commerce knew.

[00:39:50] Speaker 00:
And it turned out OK for us.

[00:39:52] Speaker 00:
But there it is.

[00:39:53] Speaker 02:
Let me ask you.

[00:39:54] Speaker 02:
Wait.

[00:39:55] Speaker 02:
Who is issuing this questionnaire that we're all debating over?

[00:39:58] Speaker 02:
It's ITC, right?

[00:39:59] Speaker 00:
No.

[00:40:00] Speaker 00:
The Commerce Department.

[00:40:01] Speaker 00:
Because commerce has a jurisdiction over the initiation question.

[00:40:06] Speaker 00:
And that's basically the question of, do the petitioners have standing to file the petition?

[00:40:14] Speaker 07:
OK, and is the initiation question dependent on support?

[00:40:19] Speaker 00:
Yes, you have to say that.

[00:40:20] Speaker 00:
And if you read, it's right in the record.

[00:40:22] Speaker 00:
You read, commerce says, Giorgio said they oppose the India case.

[00:40:27] Speaker 00:
So that affects the initiation.

[00:40:29] Speaker 00:
Well, if they were more than, yeah, it does, it does.

[00:40:32] Speaker 00:
And it has happened.

[00:40:33] Speaker 00:
There are many examples of cases that have gone down the tubes where opposite, you know, the domestic industry couldn't come up with the 50%.

[00:40:42] Speaker 00:
Now, that's what my clients were afraid of.

[00:40:45] Speaker 00:
Georgia did not want the India case.

[00:40:47] Speaker 03:
And that's why in this questionnaire response... Are there cases where domestic parties gather together and they say, I want you to determine whether you even need me.

[00:40:58] Speaker 03:
to initiate standing.

[00:41:00] Speaker 00:
That's all confidential.

[00:41:01] Speaker 03:
That certainly didn't happen in this case.

[00:41:03] Speaker 03:
In the practice, we're talking about events leading up to the initiation.

[00:41:07] Speaker 03:
Yes, it is common.

[00:41:09] Speaker 03:
It could be that the parties agree amongst themselves, it's okay, you stay out because we have enough to initiate.

[00:41:15] Speaker 00:
Well, it's usually a decision made by a company on its own.

[00:41:18] Speaker 00:
It announces it's not going to do this and hopes other members will understand.

[00:41:23] Speaker 03:
But they basically... So all this time we've been talking about meeting the domestic producer worker requirement in order to initiate a petition.

[00:41:35] Speaker 03:
And the ITC questionnaire in question at this point isn't in existence.

[00:41:42] Speaker 03:
My question to you is this.

[00:41:45] Speaker 03:
What's the relevance of what box you check to a material injury determination?

[00:41:54] Speaker 00:
It's, again, I go back and say it's been part of the questionnaire forever.

[00:42:02] Speaker 00:
But I'm asking you, I'm asking you, regardless of what box you check.

[00:42:08] Speaker 00:
Oh yeah, it does have an effect.

[00:42:10] Speaker 00:
I know that I've worked on many dozens of dumping cases and injury cases at the ITC.

[00:42:14] Speaker 00:
You want those boxes checked by domestic producers, affirmatively, aside from the Byrd Amendment.

[00:42:19] Speaker 00:
It has an effect on the staff who reads it.

[00:42:23] Speaker 00:
They start to look at it and say,

[00:42:24] Speaker 00:
Eh, you know, this is an iffy case.

[00:42:27] Speaker 00:
There's not too much support, you know, for this.

[00:42:29] Speaker 00:
We got people out there, you know, on the wall.

[00:42:32] Speaker 03:
So it's not the, is it the situation where somebody checks a box on an ITC question and it says, I oppose, for example, and yet they answer all the questions and supply all the data, import, domestic shipment, domestic consumption data, the whole bit.

[00:42:48] Speaker 03:
They supply all of that.

[00:42:49] Speaker 03:
Are you saying that ITC ignores all that data?

[00:42:52] Speaker 00:
No, it doesn't.

[00:42:54] Speaker 00:
But in most cases, you don't get that.

[00:42:57] Speaker 00:
We at Lengthen, I brief, go through line by line.

[00:43:00] Speaker 03:
But that's not this case.

[00:43:01] Speaker 03:
I mean, in this case, there is data.

[00:43:03] Speaker 03:
Are you saying that the ITC ignored that data?

[00:43:05] Speaker 00:
No, the ITC did not ignore the data.

[00:43:08] Speaker 00:
It was part of the data, just as it was, you know.

[00:43:14] Speaker 00:
But there, for example, was no affirmative data about India.

[00:43:19] Speaker 00:
General statements, you know, were injured.

[00:43:22] Speaker 03:
Well, they say they opposed that, and they decided they're not going to give any data to the ITC.

[00:43:28] Speaker 03:
That's what makes the other three countries so remarkably different.

[00:43:33] Speaker 00:
Now, see, here's what you're missing.

[00:43:35] Speaker 00:
These are the cumulation case.

[00:43:37] Speaker 00:
Had Georgia succeeded in commerce in getting the India case stopped, that would have threatened the other three cases.

[00:43:46] Speaker 00:
The ITC ultimately, for each of those three injury cases,

[00:43:49] Speaker 00:
Chile, Indonesia, China, included imports from India.

[00:43:53] Speaker 00:
It couldn't have done that had Georgia been successful in blocking the case from going forward.

[00:43:59] Speaker 03:
This is a very aggressive action against the petition, which goes against... Even in a situation where somebody checks a box, I do not support the petition of India, it is a case that the ITC still uses the data, right?

[00:44:15] Speaker 03:
Like in this case.

[00:44:16] Speaker 00:
Yes, you're right, Your Honor.

[00:44:18] Speaker 03:
It doesn't matter what box you check.

[00:44:20] Speaker 03:
The ITC is going to get the evidence that's on the Ministry of Record and make its injury determination.

[00:44:28] Speaker 00:
Yes, Your Honor, but what I'm suggesting is... But in terms of the initiation, it does matter.

[00:44:34] Speaker 00:
It matters very much.

[00:44:36] Speaker 00:
And it matters what... I guess what I'm saying here is... Excuse me.

[00:44:39] Speaker 03:
This case does not involve initiation.

[00:44:43] Speaker 03:
It's not an initiation case, is it?

[00:44:45] Speaker 00:
Oh, it is an initiation case, because have they want, this is where we have a disagreement, your honor.

[00:44:50] Speaker 00:
This is the first step of a case, the initiation.

[00:44:53] Speaker 00:
If you don't go, you're dead.

[00:44:55] Speaker 00:
It's over.

[00:44:56] Speaker 00:
There's no go back.

[00:44:57] Speaker 00:
When you have accumulation case, it's like you filed one case together.

[00:45:03] Speaker 00:
If Indy doesn't go forward, ITC doesn't look at anything.

[00:45:06] Speaker 00:
It's non-subject imports.

[00:45:08] Speaker 00:
They're not under investigation.

[00:45:10] Speaker 03:
But she just told us that commerce doesn't make it the initiation.

[00:45:14] Speaker 03:
on the basis of who checked what box.

[00:45:16] Speaker 00:
But see, this is not the point I'm making.

[00:45:18] Speaker 00:
Georgia says it took no actions to oppose the petitions during the ITC's investigation.

[00:45:24] Speaker 00:
Well, the action opposing e-commerce, I mean, this really has not gotten the examination it deserves.

[00:45:30] Speaker 00:
They came out and opposed.

[00:45:32] Speaker 00:
They tried to stop that investigation.

[00:45:35] Speaker 00:
Had they succeeded, that would have had a ripple, more than a ripple effect.

[00:45:40] Speaker 00:
It would have

[00:45:41] Speaker 00:
put in danger the success of the other three cases.

[00:45:47] Speaker 00:
So Giorgio coming in and saying, look, we've entirely support the petition.

[00:45:51] Speaker 00:
We've done everything we can to support the petition.

[00:45:53] Speaker 00:
Look at everything.

[00:45:54] Speaker 00:
Look at this.

[00:45:56] Speaker 00:
Look at this.

[00:45:58] Speaker 00:
This is a huge hostile action toward, Giorgio did not want the India case to go forward.

[00:46:09] Speaker 00:
I think we're out of time.

[00:46:13] Speaker 06:
Thank you.

[00:46:17] Speaker 07:
Mr. Schor?

[00:46:20] Speaker 07:
That was outrageous.

[00:46:22] Speaker 07:
Mr. Corky just testified incorrectly.

[00:46:26] Speaker 07:
Wait, don't stand up here and say that something's outrageous.

[00:46:29] Speaker 07:
You know, hyperbole like that is not useful.

[00:46:36] Speaker 07:
I apologize, Your Honor.

[00:46:37] Speaker 07:
This case was decided on a motion to dismiss and a motion to amend.

[00:46:42] Speaker 07:
You do not look for facts beyond the four corners of the petition, beyond the four corners of the complaint.

[00:46:49] Speaker 07:
Nothing Mr. Corsi talked about is in our complaint.

[00:46:51] Speaker 07:
You cannot consider it at all.

[00:46:53] Speaker 07:
Moreover, I want to be perfectly clear, as Judge Raina perfectly understands, the initiation phase of the case has nothing to do with this questionnaire, nothing whatsoever.

[00:47:06] Speaker 07:
The Commerce Department must decide within 20 days of the filing of a petition whether to initiate a case.

[00:47:13] Speaker 07:
These questionnaires aren't returned until after that date.

[00:47:17] Speaker 07:
The ITC questionnaire plays no role in initiation and you can't say that it had some impact on the investigation because what we said to the ITC did not affect Commerce at all.

[00:47:29] Speaker 07:
What Mr. Quircy says is, well, you told the Commerce Department that you opposed the investigation.

[00:47:36] Speaker 07:
And if the statute put the Commerce Department investigation at all on the record here, that might be relevant.

[00:47:43] Speaker 07:
But the statute, the Bird Amendment statute, directs the commission to consider the ITC record and the ITC record alone, not the Commerce Department record, not statements we made before the Commerce Department.

[00:47:55] Speaker 07:
So everything Mr. Corsi talked about, about the Commerce Department is completely irrelevant to this course analysis.

[00:48:01] Speaker 07:
The questionnaire at issue here

[00:48:03] Speaker 07:
not used by commerce at all.

[00:48:06] Speaker 07:
They are not allowed to.

[00:48:07] Speaker 07:
If it's ambiguous on whether the 25% test is made, the statute directs the commerce department to pull the industry itself.

[00:48:15] Speaker 07:
It does not rely ever on the ITC questionnaire, and I just want to make that clear.

[00:48:21] Speaker 07:
Judge Seig, I'd like to address your analogy to the KETEM and attorney's reshifting statute.

[00:48:28] Speaker 07:
If this statute just awarded

[00:48:31] Speaker 07:
benefits to petitioners, we would have no case.

[00:48:35] Speaker 07:
But the statute goes beyond the attorney's fee statutes and the key time statute because it awards benefits to petitioners and to those that indicate support.

[00:48:45] Speaker 07:
And the question here is, what does it mean to indicate support?

[00:48:48] Speaker 07:
So to say that it's okay just to provide benefits to those that bring the litigation doesn't resolve the statutory question here because we have a different statute.

[00:48:59] Speaker 06:
Okay, thank you, Mr. Short.

[00:49:02] Speaker 07:
Just one more question, if I may.

[00:49:04] Speaker 07:
Mr. Corsi made much of the fact that if we checked off the box opposed, it would have been secret.

[00:49:11] Speaker 07:
That is untrue.

[00:49:16] Speaker 07:
A party responding to a commission question, even though it says business prior to it, has no idea what the ITC is going to do with that question.

[00:49:22] Speaker 07:
And the ITC frequently accumulates the data, they accumulate the responses, and they provide summary information.

[00:49:29] Speaker 07:
In the Cathedral Candle case, this court decided in 2005, you examined the question of whether the ITC was justified in treating the response to the petition support question as confidential.

[00:49:41] Speaker 07:
You held it to be a question, and ultimately ruled that it could.

[00:49:44] Speaker 07:
So not until that case, which happened well after Giorgio answered the response,

[00:49:49] Speaker 06:
was there certainty that that petition support response would be kept confidential.