Amsted Rail Co. Takes to CIT Over Former Counsel's 'Betrayal' in Using BPI Against It in ITC Injury Case

The Court of International Trade should stop the International Trade Commission from releasing a group of plaintiffs' business proprietary information (BPI) to its former counsel and his firm, Buchanan Ingersoll, given the former counsel's alleged "betrayal," the plaintiffs, led by Amsted Rail Co. (ARC), argued in an Oct. 14 complaint at the Court of International Trade. By not blocking the release of the BPI, the ITC is violating the Administrative Procedure Act and the plaintiffs' 5th Amendment due process rights, the brief said (Amsted Rail Co. v. United States International Trade Commission, CIT #22-00307).

The case concerns a past ITC injury investigation on freight rail couplers and parts thereof from China and a present injury investigation on the same goods from China and Mexico. ARC is a U.S. producer and importer of the subject merchandise, and is affiliated with a maquiladora factory, ASF-K de Mexico -- the only Mexican manufacturer of the freight rail coupler systems and another plaintiff in the case. To start the previous investigation, ARC originally employed Wiley Rein, where Daniel Pickard worked as a partner, to represent them. At the time, Pickard filed an antidumping and countervailing duty petition on behalf of ARC and McConway and Torley (M&T), another U.S. freight rail coupler maker, to start the prior injury investigation.

ARC subsequently withdrew from the petition, leaving Pickard to carry on with M&T and a new arrival: the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union. An administrative protective order (APO) in this investigation was then issued. Until its withdrawal, ARC disclosed confidential information to Pickard to help prepare for his case.

In the prior injury investigation, the ITC unanimously voted that the U.S. industry was not materially harmed by imports of the subject merchandise from China. During the investigation, though, Pickard had moved from Wiley Rein to Buchanan Ingersoll. The ITC issued its injury determination in June, when the APO only covered Pickard and two non-attorneys at Wiley Rein, one of which moved with Pickard to Buchanan. After the determination, in July 2022, Buchanan then filed an amendment to the APO adding seven attorneys and two non-attorney personnel from Buchanan. In September, the firm then said it destroyed materials covered by the APO.

Days later, Buchanan filed a petition to start another injury investigation on the freight rail couplers, this time adding Mexico, concurrently filing an APO application covering the same Buchanan lawyers and staff made party to the previous APO. M&T and the union stand as the two petitioners. These Buchanan lawyers, including Pickard, who represented ARC, included Mexican imports knowing that the only Mexican imports came from ARC's affiliate. Describing this as a "betrayal," ARC originally took to the ITC to argue that Pickard and Buchanan should be disqualified from the proceeding and booted from the APO (see 2210120062).

The plaintiffs -- ARC, ASF-K de Mexico, Strato, Wabtec Corp. and TTX Co. -- then took to the trade court for judicial intervention in the matter. The companies argued that the ITC's refusal to kick Buchanan out of the proceeding violates the APA. The commission recently announced that in a matter of days it will release the plaintiffs' BPI questionnaire responses to Buchanan as part of the proceeding. ARC said this stands as an "arbitrary, capricious" decision "and an abuse of discretion."

Further, the plaintiffs said the move violates their due process rights. To prove a due process violation, the plaintiff must show that there has been a deprivation of life, liberty or property without due process of law. The ITC's disclosure of the companies' BPI before completion of its ethical conflict and APO investigations clears this standard, the complaint said.

"By disclosing Plaintiffs’ BPI before completion of its ethical conflict and APO investigations and giving Plaintiffs an opportunity to be heard, the Commission is violating Plaintiffs’ procedural due process rights in violation of the Fifth Amendment of the U.S. Constitution," the brief said.