ITC sets criteria to review US Steel’s antitrust complaint, sets up definitions for 337 antitrust injury

US Flag with Steel

20 December 2016. By Adam Sigal.

In setting the focus of its review on the nature of antitrust injury, the US International Trade Commission may be setting itself up as an alternative forum to pursue international claims of antitrust infringement.

The commissioners of the ITC announced Monday they would review a move by an administrative law judge to dismiss the antitrust portions of United States Steel’s unfair trade action against Chinese steel companies.

The solicitation of comments that followed shows where the focus of the agency will be: on what type of injury US Steel should have pled for its suit to move forward.

‘Antitrust injury’ is a requirement for pleading in district courts that requires a plaintiff show injury to competition and the competitive process rather than just a personal injury. In short, it requires the judge to decide whether the conduct at issue is something antitrust laws such as the Clayton Act and the Sherman Act were meant to protect against.

Commissioners’ solicitation asked for an explanation of the injury requirements inherent to Section 337 — the type of unfair trade case US Steel filed. By keeping a laser focus on the injury elements of their statute and not the federal laws, the commissioners appear poised to answer a similar question: What type of injury is Section 337 meant to protect against?

The solicitation also asked for comparative analysis of different elements of a 337 injury and how the rules should differ from those in federal court.

Commissioners also will consider whether US Steel should be allowed to amend its complaint if it is found that antitrust injury, or some facsimile of it, is a requirement to pursue anticompetition claims at the ITC in a 337 case. Currently, US Steel has not been allowed to fix the part of its complaint that was dismissed.

Written submissions are due by Jan. 17, and the ITC will consider whether it wants to hold oral arguments. If so, the arguments will be scheduled for March 14.

	Eliot Gao