Ashley Furniture Deserving of Open-Ended Injunction Through Litigation in AD Case, Reply Brief Says

Despite the Department of Justice's agreement to a limited injunction against liquidation through the end of the first administrative review of the relevant antidumping duty order, Ashley Furniture still seeks an open-ended injunction is needed to avoid irreparable harm due to a potentially years-long litigation that could run beyond the end of the first review, Ashley said in a Sept. 17 reply brief at the Court of International Trade.

The lawsuit, led by Ashley, concerns the antidumping duty order on mattresses from Vietnam. Following consultations between counsel for Ashley and the U.S. over the proposed injunction, the Department of Justice consented to the time-limited injunction for unliquidated entries (see 2108230059), arguing that just because Ashley says that liquidation could happen at some distant point in the future, that does not constitute immediate injury.

Ashley said that a threat of automatic liquidation at the 144.92% rate, as determined in the AD investigation, looms throughout the litigation and can be resolved with an open-ended injunction. Throughout the case, this automatic liquidation could occur if an administrative review is not requested or started, the review is requested then withdrawn within 90 days of initiation, the review is conducted and not subject to litigation or the review is conducted and subject to litigation but no injunction is sought.

“As the years go on, more review periods pile up and the scenarios under which Ashley’s entries could liquidate multiply,” the brief said. “In other words, the Ashley Respondents’ entries are threatened with liquidation at any time during these periods. The United States assumes that an administrative review will be conducted, and an injunction will be sought for each period of review. It is not reasonable to make such an assumption at this time.”

The U.S. also said it has consistently opposed open-ended injunctions, but Ashley cited multiple cases in which DOJ consented to open-ended injunctions that the court then granted. For example, in the 2014 case Changzhou Hawd Flooring Co., Ltd., et al. v. United States, without this open-ended injunction, new injunctions would have been needed to be granted five times, Ashley said. If Ashley is subjected to a similar situation, irreparable harm could occur due to “the risk of any potential errors or miscommunications as to liquidating” Ashley's entries.

Further, Ashley believes it clears the “likelihood to succeed on the merits” bar set for parties seeking an injunction. If its challenges are successful, the result would be a zero or de minimis dumping margin for the AD respondents and plaintiffs Wanek, Millennium and Comfort Bedding, and the revocation of the AD order for the plaintiffs.