Cozy Comfort Says US Trying to Exclude Exhibits Found in Its Own Record

Importer Cozy Comfort on Oct. 1 said that the government is seeking to exclude evidence offered by the importer in its tariff classification case that the government itself is looking to enter into evidence. Cozy Comfort said the U.S. "cannot have it both ways," adding that the government's motion to exclude the evidence "is riddled with self-serving arguments, wasting the Court's time" (Cozy Comfort Co. v. United States, CIT # 22-00173).

The importer said whether the government's "reflexive objections" are based on "litigation legerdemain," meaning sleight of hand, or an "honest oversight stemming from the breakdown in communication between the parties," the "objections are nevertheless improper."

The brief comes amid an expansive spat between the parties regarding the evidence to be used in deciding the customs case, which centers on the classification of The Comfy -- a wearable blanket (see 2409250040). The parties recently traded briefs seeking to discredit the opposing parties' evidentiary submissions.

The U.S. sought to exclude expert testimony from garment and outdoor textile designer professional James Crumley and a total of 14 other exhibits. Cozy Comfort sought to exclude testimony from CBP employee Renee Orsat and sales marketing lecturer Patricia Concannon.

Responding to the government's effort to exclude the 14 exhibits, Cozy Comfort noted that five of the exhibits the U.S. is looking to drop are also in the government's evidentiary submissions. The five exhibits are photos of The Comfy displayed for sale, licensing agreements, a psychographic segmentation study on The Comfy, photographs of the item submitted from customers and Cozy Comfort's net sales from 2018-22.

For each exhibit, the importer said the government's inclusion of the items on its own exhibit list "makes it clear that this is not a real dispute between the parties." Cozy Comfort suggested the issue could have arisen from a communication breakdown between the parties after the trade court told the litigants to attempt to settle their dispute on the exhibits in good faith. Cozy Comfort said it sent its revised exhibit schedule to the government, but that the U.S. attorneys didn't respond or object to its exhibit schedule. The importer took this to be a "tacit agreement" on the exhibits.

Cozy Comfort also claimed that the U.S. seeks an "inequitable result," since it seeks to introduce new documents at trial but deny the importer the right to do the same. The government faulted Cozy Comfort for failing to offer certain trademark registrations that were requested during discovery that the company now offers into evidence. The importer said in response that if this truly were an issue, the U.S. should have filed a motion to compel discovery, though this motion "would have been a waste of this Court's time," since trademark registrations are publicly accessible government documents.

The importer also said that "virtually all" of the government's objections "are premature given that many of the documents at issue fall under the business records exception" of the federal evidentiary rules.

Part of the government's objections saw the U.S. take issue with Crumley's testimony, and documents related to the testimony, due to their relation to the classification of the Snuggie -- a similar item that previously underwent a classification dispute at the trade court. The U.S. said Crumley based his opinion on the 2023 version of the Snuggie, while the court assessed the 2009 version of the item. In response, Cozy Comfort said the U.S. "has not asserted that a 2023 Snuggie is classified any differently under the current tariff schedule than a 2009 Snuggie."

In a separate brief, Cozy Comfort defended the testimony of Crumley himself, arguing that the government doesn't dispute Crumley's qualifications. The importer said he's the "only expert in this case who has ever been qualified by a Federal Court to testify on garment design.”

The U.S. filed a pair of briefs on its own, defending the testimonies of Concannon and Orsat. The government said Concannon has clear expertise in "apparel sales, marketing and merchandising," and is not being offered to speak on garment design, as the importer suggested. Concannon also "described her methodology, in both her expert report and testimony," and is "considered an expert on fashion and apparel by her peers and in her community," the brief said.

Regarding Orsat, Cozy Comfort opposed the inclusion of her testimony due to the government exertion of privilege over her communications during discovery. The importer also said Orsat is actually offering expert testimony as a National Import Specialist, making her testimony null since the government failed to adhere to the expert witness disclosure requirements.

In response, the U.S. said Orsat "is a percipient witness to the background of plaintiff’s importation of the subject merchandise and the positions taken by plaintiff in describing and classifying its merchandise at importation and during its protests," and not an expert witness. The fact that her knowledge stems from her employment "does not convert her into an expert witness or her testimony into expert testimony," the brief said. The government added that her testimony won't include any of the information subject to the government's asserted privilege.