August 18, 2017 — Hughes Hubbard is taking Papierfabrik August Koehler's appeal of a 75 percent anti-dumping tariff to the U.S. Supreme Court.
On July 31, HHR filed a petition with the Supreme Court seeking review of the Commerce Department's use of adverse information available in assigning anti-dumping duties to individual companies if they fail to cooperate with the department's investigations or submit insufficient information.
"The issues in this case have national and international importance," the petition said, noting that $14 billion of imported goods were subject to antidumping or countervailing duties. "Commerce's overreach in applying adverse facts available has crippling effects on foreign exporters and on the U.S. importers of record that must pay duties."
The petition stated that the 75 percent duty eventually drove Koehler from the U.S. market and deprived U.S. consumers of a major industry competitor.
HHR has been representing Koehler since October 2013 when the German paper manufacturer sought import relief from a Commerce Department determination that Koehler undersold its paper and manipulated data to avoid antidumping duties. Earlier that year, Commerce increased the preliminary duty on Koehler imports from 4.33 percent to 75.36 percent. Koehler had been subject to antidumping duties since 2008, after a U.S. manufacturer filed a complaint claiming Chinese and German competitors were selling paper at artificially low prices.
In December 2014, HHR won a unanimous revocation of the tariff before the U.S. International Trade Commission (ITC), which freed Koehler from contending with duties on future entries. But due to a finding three months earlier that year by the U.S. Court of International Trade (CIT) that Commerce was correct to levy the tariff on Koehler's paper imports because the company withheld key information regarding sales of the product in Germany, HHR has been fighting Commerce demands that Koehler pay over $200 million in penalty duties for past entries.
The Federal Circuit rejected Koehler's appeal in December and Koehler's request to reconsider its decision in March. In its petition, HHR asks the high court to consider whether Commerce should be allowed to ignore verifiable evidence submitted within a reasonable time period and instead adopt adverse facts.
"While Commerce's statutory mandate is to impose the most accurate duty, the agency has repeatedly exceeded that mandate by imposing punitive duties as a protectionist measure," John Wood told Law360. "This should have importers very concerned. Unfortunately, it appears that this practice will not stop until the Supreme Court steps in to curtail Commerce's authority."
Amanda DeBusk leads the Koehler team, which includes Matt Nicely, Eric Parnes, Lynn Kamarck and Daniel Witkowski. In addition to Wood, who is the counsel of record, Scott Christensen is also working on the Supreme Court appeal.