Ninestar Asks CIT to Unredact Gov't Record in Suit on UFLPA Entity List Addition

Chinese exporter Ninestar Corp. moved at the Court of International Trade to unseal and unredact the administrative record in its case against the Forced Labor Enforcement Task Force's (FLETF) decision to add the company to the Uyghur Forced Labor Prevention Act Entity List. Ninestar said that while the trade court's recent order mandating disclosure to Ninestar's counsel of the government's evidentiary record marked some progress, the company's counsel said they remain "hobbled" since they can't share these materials with their client (Ninestar Corp. v. United States, CIT # 23-00182).

Without being able to communicate with Ninestar about the evidence, its counsel, made up of Sidley Austin attornehys, said he "cannot ask direct questions and secure specific evidence to rebut Defendants' misunderstandings and misrepresentations," compounding the harm caused by the exporter's placement on the UFLPA list, the brief said. There also are still some parts of the record that continue to be withheld even from the Sidley Austin attorneys, kneecapping "Ninestar’s ability to attack the adequacy of FLETF’s secret explanation of its listing decision, as well as to prosecute its forthcoming amended Complaint challenging the legal and factual sufficiency of the evidence underlying the Listing Decision," the company said.

Ninestar also argued that by making the record public but redacting the vast majority of the information, the government has given the impression that it has "hundreds of pages of evidence" supporting its decision. By also filing a confidential record, the U.S. "gave the impression that Ninestar, or at least its lawyers, had access to those materials, raising the question why Ninestar was not seeking to have itself removed from the" list and leaving the impression that the company "could not because it was guilty."

And by not including unredacted copies of those materials in the confidential record, the U.S. "deprived Ninestar's counsel from learning the complete bases for the Listing Decision and hamstrung them from making meaningful use of FLETF's published procedure for petitioning for removal from the list." As a result, the record should be unsealed and unredacted, Ninestar said.

The motion comes on the heels of the trade court's decision finding it had subject matter jurisdiction to hear the suit (see 2311300038). The ruling on jurisdiction came after the exporter's motion for a preliminary injunction against the listing decision.

Concurrent with its motion to unredact the record, Ninestar and the U.S. submitted a joint status report saying the parties "have continued to negotiate a process for FLETF's consideration of a request for removal from the UFLPA entity list by Ninestar." To facilitate those talks, the court delayed a hearing on the injunction motion and extended the due date for the response to the government's motion to dismiss. No agreement has been reached on a "mutually acceptable protocol."