Amsted Files Case Against Commerce in Bid to Boot Law Firm From AD/CVD Investigations

Plaintiffs Amsted Rail Co. (ARC) and ASF-K Mexico again took to the Court of International Trade, this time against the Commerce Department, in a bid to get the trade court to disqualify its former law firm from further participation in the antidumping and countervailing duty investigations on freight rail couplers and parts thereof from China and Mexico. ARC and ASF-K said that Commerce's refusal to disqualify Buchanan Ingersoll and timely rescind access to business proprietary information (BPI) violates the Administrative Procedure Act and the plaintiff's right to due process (Amsted Rail Co. v. United States, CIT #22-00316).

The case concerns past AD/CVD investigations on freight rail couplers and parts thereof from China and present AD/CVD investigations 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 -- the only Mexican manufacturer of the freight rail coupler systems. As a petitioner in the previous investigation, ARC originally employed Wiley Rein, where Daniel Pickard worked as a partner, to represent them. Pickard filed an AD/CVD petition on behalf of ARC and McConway and Torley (M&T), another U.S. freight rail coupler maker, to start the investigations.

ARC subsequently withdrew from the petition, leaving Pickard to carry on with M&T and a new arrival: a labor union in the industry. 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 International Trade Commission unanimously voted that the U.S. industry was not materially harmed by imports of the subject merchandise from China. But during the investigation, 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.

Days later, Buchanan filed a petition to start another injury investigation and other AD/CVD investigations 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 labor 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 and Commerce to argue that Pickard and Buchanan should be disqualified from the proceeding and booted from the APO (see 2210120062). The plaintiffs then went to the trade court over the ITC's failure to toss Buchanan and Pickard from the APO (see 2210170084).

ARC and ASF-K filed another case at CIT, this time looking to get the trade court to have Commerce disqualify Buchanan from the AD/CVD investigations. In the proceedings, the agency said it wouldn't make a finding as to whether this firm should be barred from further participation. ARC argued that it had "no other adequate remedy available" except for the court to "direct the disqualification of the ... Firm in the Current Investigations." The plaintiffs said that Buchanan's representation of the petitioners violates a rule under the ABA Model Rules and the District of Columbia Rules of Professional Conduct, and that ARC and ASF-K face "irreparable harm" from this continued representation.

"The Department’s decision not to act in the face of these serious allegations was the antithesis of reasoned decision-making," the complaint said. In all, the plaintiffs claim that Commerce's refusal to boot Buchanan from the proceeding violates the APA and the plaintiff's due process rights.

"By refusing to timely rescind the Firm’s authorization to access Plaintiffs’ BPI in the Current Investigations, the Department is adversely affecting Plaintiffs’ legal rights and obligations by giving the Firm the indefinite right to Plaintiffs’ confidential information and imposing a continuing duty on Plaintiffs to share it with the Firm," the brief said. "Accordingly, the Department is violating Plaintiffs’ procedural due process rights in violation of the Fifth Amendment."

ARC and ASF-K added that Commerce is subject to mandamus to disqualify the petitioners' counsel since the agency is "clearly and indisputably required to disqualify the Attorney ... and the Firm ... due to their ethical and Predecessor APO violations, which irrevocably taint the proceedings therein." If forced to wait to appeal, the plaintiffs "will suffer irremediable damage" since information released under the APO "would not be forgotten and could be used against ARC and other Plaintiffs," the complaint said.