ITC Had No Authority to Deny Access to CBI, LG Legal Team Argues

The International Trade Commission had no authority to deny lawyers representing LG Electronics access to confidential business information during a safeguard proceeding on solar cells from China, the lawyers argued in a Sept. 24 brief at the Court of International Trade. The congressional mandate for granting administrative protective orders (APOs) merely tells the ITC what it "shall" do, so commission had no grounds to deny a timely filed APO application, the Curtis Mallet-Prevost lawyers said (LG Electronics USA, Inc., et al. v. United States, CIT 21-00520).

During the safeguard proceeding, certain Curtis lawyers, namely Daniel Porter and James Durling, applied for an APO to participate as LG's counsel. Several Curtis lawyers, including Porter and Durling, were denied this APO access due to their prior work representing China at the World Trade Organization.

In 2018, China sought consultations at the WTO over the U.S.'s safeguard measures on imports of crystaline silicon photovoltaic products. Curtis lawyers helped China prepare for its arguments at the WTO panel, but none of China's submissions contained any confidential business proprietary information, Curtis lawyers said in their complaint at CIT (see 2109210054). The ITC nevertheless partially denied the Curtis lawyers' APO bid based on this prior work.

In their motion for judgment, the Curtis attorneys say that the ITC's understanding of the firm's past representation of China at the WTO was mistaken. The brief says that the ITC assumes that Curtis attorneys continue to represent the Chinese government in the WTO safeguard proceedings, since the commission is worried that confidential information could be passed along to China via the Curtis attorneys. "Curtis no longer represents China in connection with the WTO proceeding and it is certain that Curtis will not do so in the future," the brief said. When the WTO panel released its public decision, the relationship ended, the Curtis attorneys assured the court.

Further, even if the commission has a concern based on how LG's counsel could use certain CBI, this concern can be addressed through the existing APO, the brief said. The commission has a history of limiting APO information, and even if this is not enough, then the ITC can always impose additional conditions in the APO, the lawyers argued.

But more to the point, the ITC simply did not have the authority to make that decision, the brief said. The governing regulations say that after the ITC receives a timely APO application, the ITC secretary "shall make available all confidential business information" contained in an investigation. The word "shall" is mandatory and "leaves no room for the Commission to deny these applications," the brief said. "... The Commission did not cite any authority giving the Secretary discretion to outright deny APO access to an authorized applicant, and there is no such authority."