LG Legal Team Fights Denied Access to Solar Safeguard BPI

LG Electronics, and its U.S. affiliate, launched a case at the Court of International Trade against the International Trade Commission for freezing out certain members of its counsel from a safeguard extension proceeding on solar panels, in a Sept. 16 complaint. The ITC did not grant full access to proprietary information for all of LGE's legal team, from the firm Curtis Mallet-Prevost, due to the lawyers' roles in representing China in a dispute settlement case at the World Trade Organization (LG Electronics USA, Inc., et al. v. United States, CIT 21-00520).

In 2018, China sought consultations at the WTO over the U.S.'s safeguard measures on imports of crystaline silicon photovoltaic products. Curtis Mallet-Prevost helped China prepare for its arguments at the WTO panel, but none of China's submissions contained any confidential business proprietary information (BPI), the complaint said. China retained Curtis "only to provide assistance with the Panel proceeding," the firm assured. Curtis said it did not represent China or Chinese private entities in the original U.S. safeguard case.

Nevertheless, the ITC used Curtis' involvement in the WTO proceeding as grounds to not grant access to BPI to some of Curtis' lawyers in a proceeding over the potential extension of safeguard measures on CSPV goods. On Sept. 13, the ITC granted conditional access to Curtis lawyers who did not participate in the WTO proceeding. Daniel Porter, a Curtis lawyer, attempted to assuage the ITC's fears, arguing that representation for LGE "was being irreparably harmed by the Commission's ongoing failure to issue a decision" in Curtis' application for access to proprietary information under administrative protective order (APO).

"LGE and LGEUS will continue to be harmed as long as the Commission continues to fail to act within the required time frame," the complaint said. "The timeline for the specific proceeding as issue is very compressed with important initial filings due to the Commission on September 16, 2021. ... Under the statute, regulations, and practices governing the application for access to proprietary information under the APO, consideration of those applications, and determinations regarding those applications the Commission must make a determination within a specific time frame."

To address the need for a speedy briefing schedule, Chief Judge Mark Barnett was assigned to the case on Sept. 17, and a status conference was held virtually on Sept. 21.