CIT Rejects Bid to Redact Opinion in AD/CVD Injury Case, Citing Transparency

The Court of International Trade on Jan. 8 opinion rejected a U.S. request to redact information in the court's recent opinion sustaining an International Trade Commission affirmative injury finding in antidumping and countervailing duty cases on mattresses.

Touting the need for transparency in the judicial system, Judge Stephen Vaden said that the supposedly confidential information -- certain company names and numeral approximations -- is not confidential since either the ITC failed to properly bracket it during litigation or the information is publicly available.

The judge noted that neither "administrative agencies nor this Court can hide from scrutiny by censoring information," adding that only "truly confidential" information may be hid from the public. When applying the court's standards regarding confidential information, "[t]ransparency -- not secrecy -- is the default rule," Vaden said.

The public "should not accept final answers to complicated questions on faith alone," the court said, adding that "courts are expected to show their work." The court pointed to this context, along with the ITC's demonstrated "questionable position on transparency before the Court" and the public attention received by the injury proceeding, in making its decision.

Vaden said that while the ITC is not an elected body, "it is part of the executive branch and is accountable to the people through their elected representatives," making its actions, which carry real consequences across the economy, subject to the rigors of transparency. "Citizens can only hold their Government accountable if they know what that Government is doing," the opinion said.

The trade court issued the underlying opinion in December, upholding the injury finding while simultaneously admonishing the commission for committing various errors in assessing whether the mattress market is segmented (see 2312200070). After instruction from the court on how to proceed regarding supposed confidential information in the opinion, the government filed a motion to retract the public opinion and treat certain information as confidential.

The first type of information the government sought to redact was the names of the companies that responded to the ITC's questionnaires. In assessing the claim, Vaden first stated that the court's Rule 5(g) requires any submission with confidential information to identify the information by putting it in brackets, noting that the U.S. failed to bracket the company names. In its defense, the government said the company names were bracketed in the ITC's index to the record. The commission stamped a blanket "Business Proprietary" label on top of the questionnaire pages and blamed the length of the record for missing the names, the government said.

Vaden said that while the names were bracketed in the index, this is of "no consequence" since the brackets were placed around empty spaces. Bracketing empty spaces is reserved only for the public version of documents, meaning their inclusion in the confidential record fails to tell the court where the commission "supposedly designated the company name as confidential because the blank space in place of the company name would not show up in a search." Bracketing information "somewhere else in the record does not magically afford protection across the entire board," the judge said.

The judge also criticized the ITC for its blanket "Business Proprietary" label, telling the U.S. that this label is exactly the type of label barred by CIT Rule 5(g). Vaden lastly said that "veiled excuses" about the length of the record doesn't justify denying public access to records in the case. The information should've been bracketed when the government had the chance to do so, the opinion said. The judge also called into question the timing of the U.S. request, given that it only came after a "less than complimentary" opinion from the court.

The second type of information the government requested to be redacted concerned numerical approximations used by the court in discussing market trends and market share. Vaden said he doubts many of these marks qualify for confidential treatment by the ITC's own standard or "any reasonable understanding" of the word "confidential," since much of the information on mattress market trends is publicly available.

The court also characterized many of the challenges from the U.S. as bordering "on frivolity." For instance, the government objected to the use of the phrase "thousands of percent." Vaden said this phrase can mean anything from 2,000% to 999,999%, and as a result, does very little to indicate the actual number referenced by the phrase. The same is true for the use of comparative words like "negligible," "roughly," "about," and "at least," the court said. "Ballpark figures like these provide enough information for the reader to understand the case without revealing any confidential or business proprietary information."

(CVB, Inc. v. United States, Slip Op. 24-2, CIT # 21-00288, dated 01/08/24; Judge: Stephen Vaden; Attorneys: Geoffrey Goodale of Duane Morris for plaintiff CVB Inc.; Jane Dempsey for defendant U.S. government; Mary Alves of Cassidy Levy for defendant-intervenors led by Brooklyn Bedding)