Alleged Transshipper Permitted to Intervene in AD/CVD Evasion Case After Initial Rejection

An alleged transshipper in an antidumping and countervailing duty evasion investigation was allowed to intervene in a case at the Court of International Trade, per an Oct. 7 order. Kingtom Aluminio was originally denied the right to intervene for failing to show a legally protectable interest in the case. Judge Richard Eaton changed his tune in the most recent order, now agreeing that the company has a protectable interest.

The Enforce and Protect Act investigation had found certain aluminum extrusion importers evaded the AD/CVD orders on the extrusions from China transshipping them through Kingtom in the Dominican Republic. Eaton initially rejected the intervention motion, finding Kingtom failed to establish that its business interest in continuing to sell its aluminum extrusions to the plaintiff importers without duties was an interest relating to the transaction subject of the litigation, as required for intervention as a matter of right. Eaton also said that Kingtom didn't share a claim with the main action. Kingtom contested both of these points in its response to the judge's ruling (see 2107080024).

In his reconsideration, Eaton held that Kingtom's contractual arrangements provide a "direct and immediate relationship to the litigation." In the evasion case, CBP found that Kingtom did not actually sell Dominican-origin aluminum extrusions to its customer, as it pledged to do in its contract. "As the seller and exporter of the merchandise, Kingtom has a clear interest in disputing Customs’ claim that it did not fulfill the terms of its contract," Eaton said. "Although demonstrating that it did indeed perform in accordance with the terms of its contract would, no doubt, have some effect on Kingtom’s future business, its interest in demonstrating that it fulfilled its obligations gives it an interest in the contract itself, that is not merely economic."

The judge also held that if Kingtom were excluded from the litigation, its ability to protect this interest would be impaired, and that the existing parties' representation of Kingtom's interest is inadequate. "Kingtom has an interest in demonstrating that it fulfilled its contractual obligations," the opinion said. "This is quite a different matter from an importer contesting an obligation to pay additional duties, which may rely on different legal theories and different facts taken from the record. The court thus finds Kingtom’s interest is not adequately protected by those parties interested primarily in avoiding payment of duties, and this favors Kingtom’s intervention as a matter of right."

(Global Aluminum Distributor LLC v. United States, Slip Op. 21-139, CIT Consol. #21-00198, dated 10/07/21, Judge Richard Eaton. Attorneys: David Craven of Craven Trade Law for plaintiff Global Aluminum; Alexander Vanderweide for defendant U.S. government; Brady Mills of Morris Manning for plaintiff-intervenor Kingtom Aluminio)