The International Trade Commission has issued its annual report informing representatives of parties to ITC proceedings as to some specific types of administrative protective order breaches encountered and the corresponding types of actions that have been taken. This report – which addresses nine intellectual property rights cases from fiscal year 2023 – highlights the importance of ensuring compliance with applicable rules and the consequences of not doing so.
Those involved in ITC investigations or other proceedings under Title VII of the 1930 Tariff Act (AD and CV injury), safeguard-related provisions such as section 202 of the 1974 Trade Act, section 337 of the 1930 Tariff Act (IPR), and NAFTA article 1904.13 may enter into APOs that permit them, under strict conditions, to obtain access to the business proprietary information (Title VII) or confidential business information (all others) of other parties.
The two types of breaches most frequently investigated involve the APO’s prohibition on the dissemination or exposure of BPI or CBI to unauthorized persons and the requirement that the materials received under the APO be returned or destroyed and that a certificate be filed within a specified period indicating which action was taken. Other breaches have included the failure to properly bracket BPI/CBI in proprietary documents filed with the ITC, the failure to immediately report known or suspected violations of an APO, and the failure to adequately supervise non-lawyers in the handling of BPI/CBI.
In AD/CV injury proceedings, any breach of an APO may subject an applicant to various sanctions, including the following.
- disbarment from practice in any capacity before the ITC, along with the person’s partners, associates, employer, and employees, for up to seven years
- referral to the U.S. attorney
- in the case of an attorney, accountant, or other professional, referral to the ethics panel of the appropriate professional association
- such other administrative sanctions as the ITC determines to be appropriate, including public release of or striking from the record any information or briefs submitted by or on behalf of such person or the party he represents, denial of further access to BPI in current or future investigations before the ITC, and issuance of a public or private letter of reprimand
- such other actions, such as a warning letter, as the ITC determines to be appropriate
APOs in safeguard investigations, as well as cross-border long-haul trucking investigations conducted under the U.S.-Mexico-Canada Agreement, contain similar, though not identical, provisions.
Possible sanctions for violating an APO in a Section 337 investigation include the following.
- an official ITC reprimand
- disqualification from or limitation of further participation in a pending investigation
- temporary or permanent disqualification from practicing in any capacity before the ITC
- referral of the facts underlying the violation to the appropriate licensing authority in the jurisdiction in which the individual is licensed to practice
- making adverse inferences and rulings against a party involved in the violation of the APO or such other action that may be appropriate
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