Notice2021-27413
Summary of Commission Practice Relating to Administrative Protective Orders
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Published
December 20, 2021
Issuing agencies
International Trade Commission
Abstract
Since February 1991, the U.S. International Trade Commission ("Commission") has published in the Federal Register reports on the status of its practice with respect to breaches of its administrative protective orders ("APOs") under title VII of the Tariff Act of 1930 in response to a direction contained in the Conference Report to the Customs and Trade Act of 1990. Over time, the Commission has added to its report discussions of APO breaches in Commission proceedings other than under title VII and violations of the Commission's rules, including the rule on bracketing business proprietary information (the "24-hour rule"). This notice provides a summary of APO breach investigations completed during fiscal years 2020 and 2021. This summary addresses APO breach investigations related to proceedings under both title VII and section 337 of the Tariff Act of 1930. The Commission intends for this summary to inform representatives of parties to Commission proceedings of the specific types of APO breaches before the Commission and the corresponding types of actions that the Commission has taken.
Full Text
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<title>Federal Register, Volume 86 Issue 241 (Monday, December 20, 2021)</title>
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[Federal Register Volume 86, Number 241 (Monday, December 20, 2021)]
[Notices]
[Pages 71916-71920]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-27413]
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INTERNATIONAL TRADE COMMISSION
Summary of Commission Practice Relating to Administrative
Protective Orders
AGENCY: U.S. International Trade Commission.
ACTION: Summary of Commission practice relating to administrative
protective orders.
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SUMMARY: Since February 1991, the U.S. International Trade Commission
(``Commission'') has published in the Federal Register reports on the
status of its practice with respect to breaches of its administrative
protective orders (``APOs'') under title VII of the Tariff Act of 1930
in response to a direction contained in the Conference Report to the
Customs and Trade Act of 1990. Over time, the Commission has added to
its report discussions of APO breaches in Commission proceedings other
than under title VII and violations of the Commission's rules,
including the rule on bracketing business proprietary information (the
``24-hour rule''). This notice provides a summary of APO breach
investigations completed during fiscal years 2020 and 2021. This
summary addresses APO breach investigations related to proceedings
under both title VII and section 337 of the Tariff Act of 1930. The
Commission intends for this summary to inform representatives of
parties to Commission proceedings of the specific types of APO breaches
before the Commission and the corresponding types of actions that the
Commission has taken.
FOR FURTHER INFORMATION CONTACT: Ryan Glanzer, Office of the General
Counsel, U.S. International Trade Commission, telephone (202) 708-2508.
Hearing-impaired individuals may obtain information on this matter by
contacting the Commission's TDD terminal at 202-205-1810. General
information concerning the Commission may also be obtained by accessing
its website at <a href="https://www.usitc.gov">https://www.usitc.gov</a>.
SUPPLEMENTARY INFORMATION: Statutory authorities for Commission
investigations provide for the release of business proprietary
information (``BPI'') or confidential business information (``CBI'') to
certain authorized representatives in accordance with requirements set
forth in Commission regulations. Such statutory and regulatory
authorities include: 19 U.S.C. 1677f; 19 CFR 207.7; 19 U.S.C. 1337(n);
19 CFR 210.5, 210.34; 19 U.S.C. 2252(i); 19 CFR 206.17; 19 U.S.C.
4572(f); 19 CFR 208.22; 19 U.S.C. 1516a(g)(7)(A); and 19 CFR 207.100-
[[Page 71917]]
207.120. The discussion below describes APO breach investigations that
the Commission completed during fiscal years 2020 and 2021, including
descriptions of actions taken in response to any breaches.
Since 1991, the Commission has published annually a summary of its
actions in response to violations of Commission APOs and rule
violations. See 85 FR 7589 (Feb. 10, 2020); 83 FR 42140 (Aug. 20,
2018); 83 FR 17843 (Apr. 24, 2018); 82 FR 29322 (June 28, 2017); 81 FR
17200 (Mar. 28, 2016); 80 FR 1664 (Jan. 13, 2015); 78 FR 79481 (Dec.
30, 2013); 77 FR 76518 (Dec. 28, 2012); 76 FR 78945 (Dec. 20, 2011); 75
FR 66127 (Oct. 27, 2010); 74 FR 54071 (Oct. 21, 2009); 73 FR 51843
(Sept. 5, 2008); 72 FR 50119 (Aug. 30, 2007); 71 FR 39355 (July 12,
2006); 70 FR 42382 (July 22, 2005); 69 FR 29972 (May 26, 2004); 68 FR
28256 (May 23, 2003); 67 FR 39425 (June 7, 2002); 66 FR 27685 (May 18,
2001); 65 FR 30434 (May 11, 2000); 64 FR 23355 (Apr. 30, 1999); 63 FR
25064 (May 6, 1998); 62 FR 13164 (Mar. 19, 1997); 61 FR 21203 (May 9,
1996); 60 FR 24880 (May 10, 1995); 59 FR 16834 (Apr. 8, 1994); 58 FR
21991 (Apr. 26, 1993); 57 FR 12335 (Apr. 9, 1992); and 56 FR 4846 (Feb.
6, 1991). This report does not provide an exhaustive list of conduct
that will be deemed to be a breach of the Commission's APOs. The
Commission considers APO breach investigations on a case-by-case basis.
As part of the Commission's effort to educate practitioners about
the Commission's current APO practice, the Secretary to the Commission
(``Secretary'') issued in April 2020 a fifth edition of An Introduction
to Administrative Protective Order Practice in Import Injury
Investigations (Pub. No. 5052). This document is available on the
Commission's website at <a href="http://www.usitc.gov">http://www.usitc.gov</a>.
I. In General
A. Antidumping and Countervailing Duty Investigations
The current APO application form for antidumping and countervailing
duty investigations, which the Commission revised in May 2020, requires
an APO applicant to agree to:
(1) Not divulge any of the BPI disclosed under this APO or
otherwise obtained in this investigation and not otherwise available
to him or her, to any person other than--
(i) Personnel of the Commission concerned with the
investigation,
(ii) The person or agency from whom the BPI was obtained,
(iii) A person whose application for disclosure of BPI under
this APO has been granted by the Secretary, and
(iv) Other persons, such as paralegals and clerical staff, who
(a) are employed or supervised by and under the direction and
control of the authorized applicant or another authorized applicant
in the same firm whose application has been granted; (b) have a need
thereof in connection with the investigation; (c) are not involved
in competitive decision making for an interested party which is a
party to the investigation; and (d) have signed the acknowledgment
for clerical personnel in the form attached hereto (the authorized
applicant shall also sign such acknowledgment and will be deemed
responsible for such persons' compliance with this APO);
(2) Use such BPI solely for the purposes of the above-captioned
Commission investigation or for U.S. judicial or review pursuant to
the North American Free Trade Agreement the determination resulting
from such investigation of such Commission investigation;
(3) Not consult with any person not described in paragraph (1)
concerning BPI disclosed under this APO or otherwise obtained in
this investigation without first having received the written consent
of the Secretary and the party or the representative of the party
from whom such BPI was obtained;
(4) Whenever materials (e.g., documents, computer disks or
similar media) containing such BPI are not being used, store such
material in a locked file cabinet, vault, safe, or other suitable
container (N.B.: Storage of BPI on so-called hard disk computer
media or similar media is to be avoided, because mere erasure of
data from such media may not irrecoverably destroy the BPI and may
result in violation of paragraph C of this APO);
(5) Serve all materials containing BPI disclosed under this APO
as directed by the Secretary and pursuant to section 207.7(f) of the
Commission's rules;
(6) Transmit each document containing BPI disclosed under this
APO:
(i) With a cover sheet identifying the document as containing
BPI,
(ii) With all BPI enclosed in brackets and each page warning
that the document contains BPI,
(iii) If the document is to be filed by a deadline, with each
page marked ``Bracketing of BPI not final for one business day after
date of filing,'' and
(iv) Within two envelopes, the inner one sealed and marked
``Business Proprietary Information--To be opened only by [name of
recipient]'', and the outer one sealed and not marked as containing
BPI;
(7) Comply with the provision of this APO and section 207.7 of
the Commission's rules
(i) Make true and accurate representations in the authorized
applicant's application and promptly notify the Secretary of any
changes that occur after the submission of the application and that
affect the representations made in the application (e.g. change in
personnel assigned to the investigation),
(ii) Report promptly and confirm in writing to the Secretary any
possible breach of this APO, and
(iii) Acknowledge that breach of this APO may subject the
authorized applicant and other persons to such sanctions or other
actions as the Commission deems appropriate, including the
administrative sanctions and actions set out in this APO.
The APO form for antidumping and countervailing duty investigations
also provides for the return or destruction of the BPI obtained under
the APO on the order of the Secretary, at the conclusion of the
investigation, or at the completion of Judicial Review. The BPI
disclosed to an authorized applicant under an APO during the
preliminary phase of the investigation generally may remain in the
applicant's possession during the final phase of the investigation.
The APO further provides that breach of an APO may subject an
applicant to:
(1) Disbarment from practice in any capacity before the
Commission along with such person's partners, associates, employer,
and employees, for up to seven years following publication of a
determination that the order has been breached;
(2) Referral to the United States Attorney;
(3) In the case of an attorney, accountant, or other
professional, referral to the ethics panel of the appropriate
professional association;
(4) Such other administrative sanctions as the Commission
determines to be appropriate, including public release of, or
striking from the record any information or briefs submitted by, or
on behalf of, such person or the party he represents; denial of
further access to business proprietary information in the current or
any future investigations before the Commission, and issuance of a
public or private letter of reprimand; and
(5) Such other actions, including but not limited to, a warning
letter, as the Commission determines to be appropriate.
APOs issued in cross-border long-haul trucking (``LHT'')
investigations, conducted under the United States-Mexico-Canada
Agreement Implementation Act, 19 U.S.C. 4571-4574 (19 U.S.C. 4501
note), and safeguard investigations, conducted under the statutory
authorities listed in 19 CFR 206.1 and 206.31, contain similar (though
not identical) provisions.
B. Section 337 Investigations
APOs in section 337 investigations differ from those in title VII
investigations: There is no set form like the title VII APO
application, and provisions of individual APOs may differ depending on
the investigation and the presiding administrative law judge. However,
in practice, the provisions are often similar in scope and applied
quite similarly. Any person seeking access to CBI during a section 337
investigation (including outside counsel for parties to the
investigation, secretarial and support personnel
[[Page 71918]]
assisting such counsel, and technical experts and their staff who are
employed for the purposes of the investigation) is required to read the
APO, file a letter with the Secretary indicating agreement to be bound
by the terms of the APO, agree not to reveal CBI to anyone other than
another person permitted access by the APO, and agree to utilize the
CBI solely for the purposes of that investigation.
In general, an APO in a section 337 investigation will define what
kind of information is CBI and direct how CBI is to be designated and
protected. The APO will state which persons may have access to CBI and
which of those persons must sign onto the APO. The APO will provide
instructions on how CBI is to be maintained and protected by labeling
documents and filing transcripts under seal. It will provide
protections for the suppliers of CBI by notifying them of a Freedom of
Information Act request for the CBI and providing a procedure for the
supplier to seek to prevent the release of the information. There are
provisions for disputing the designation of CBI and a procedure for
resolving such disputes. Under the APO, suppliers of CBI are given the
opportunity to object to the release of the CBI to a proposed expert.
The APO requires a person who discloses CBI, other than in a manner
authorized by the APO, to provide all pertinent facts to the supplier
of the CBI and to the administrative law judge and to make every effort
to prevent further disclosure. Under Commission practice, if the
underlying investigation is before the Commission at the time of the
alleged breach or if the underlying investigation has been terminated,
a person who discloses CBI, other than in a manner authorized by the
APO, should report the disclosure to the Secretary. See 19 CFR 210.25,
210.34(c). The APO requires all signatories to the APO to either return
to the suppliers or destroy the originals and all copies of the CBI
obtained during the investigation.
The Commission's regulations provide for certain sanctions to be
imposed if the APO is violated by a person subject to its restrictions.
The names of the persons being investigated for violating an APO are
kept confidential unless the sanction imposed is a public letter of
reprimand. 19 CFR 210.34(c)(1). The possible sanctions are:
(1) An official reprimand by the Commission.
(2) Disqualification from or limitation of further participation
in a pending investigation.
(3) Temporary or permanent disqualification from practicing in
any capacity before the Commission pursuant to 19 CFR 201.15(a).
(4) Referral of the facts underlying the violation to the
appropriate licensing authority in the jurisdiction in which the
individual is licensed to practice.
(5) Making adverse inferences and rulings against a party
involved in the violation of the APO or such other action that may
be appropriate. 19 CFR 210.34(c)(3).
Commission employees are not signatories to the Commission's APOs
and do not obtain access to BPI or CBI through APO procedures.
Consequently, they are not subject to the requirements of the APO with
respect to the handling of BPI and CBI. However, Commission employees
are subject to strict statutory and regulatory constraints concerning
BPI and CBI and face potentially severe penalties for noncompliance.
See 18 U.S.C. 1905; title 5, U.S. Code; and Commission personnel
policies implementing the statutes. Although the Privacy Act (5 U.S.C.
552a) limits the Commission's authority to disclose any personnel
action against agency employees, this should not lead the public to
conclude that no such actions have been taken.
II. Investigations of Alleged APO Breaches
The Commission conducts APO breach investigations for potential
breaches that occur in title VII, safeguard, and LHT investigations, as
well as potential breaches in section 337 investigations that are
before the Commission or have been terminated.\1\ Administrative law
judges handle potential APO breaches in section 337 investigations when
the breach occurred and is discovered while the underlying
investigation is before the administrative law judge. The Commission
may review any decision that the administrative law judge makes on
sanctions in accordance with Commission regulations. See 19 CFR 210.25,
210.34(c).
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\1\ Procedures for investigations to determine whether a
prohibited act, such as a breach, has occurred and for imposing
sanctions for violation of the provisions of a protective order
issued during a NAFTA panel or committee proceedings are set out in
19 CFR 207.100-207.120. The Commission's Office of Unfair Import
Investigations conducts those investigations initially.
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For Commission APO breach investigations, upon finding evidence of
an APO breach or receiving information that there is reason to believe
that one has occurred, the Secretary notifies relevant Commission
offices that the Secretary has opened an APO breach file and that the
Commission has commenced an APO breach investigation. The procedure for
investigating alleged breaches of APOs has historically had two steps.
First, the Commission determines whether a breach has occurred and, if
so, who is responsible for it. This is done after the alleged breaching
parties have been provided an opportunity to present their views on the
matter. The breach investigation may conclude after this first step if:
(1) The Commission determines that no breach occurred and issues a
letter so stating; or (2) the Commission finds that a breach occurred
but that no further action is warranted and issues a warning letter.
Second, if the Commission determines that a breach occurred and that
further action is warranted, the Commission will then determine what
sanction, if any, to impose. The breaching parties are provided an
opportunity to present their views on the appropriate sanction and any
mitigating circumstances. The Commission can decide as part of either
the first or second step to issue a warning letter. A warning letter is
not a sanction, but the Commission will consider a warning letter as
part of a subsequent APO breach investigation.
The Commission has found that the two-step process can result in
duplicative work for the alleged breaching party and Commission staff
in some APO breach investigations. For example, parties who self-report
their own breach often address mitigating circumstances and sanctions
in their initial response to the Commission's letter of inquiry on the
breach. But under the Commission's two-step process, they must await a
Commission decision on breach and then submit again their views on
mitigating circumstances and sanctions. To streamline this process and
accelerate processing times, the Commission has begun to offer alleged
breaching parties in pending and new APO breach investigations the
option to voluntarily elect a one-step APO breach investigation
process. Under this process, the Commission will determine
simultaneously whether a breach occurred and, if so, the appropriate
sanction to impose, if any.
Sanctions for APO violations serve three basic interests: (a)
Preserving the confidence of submitters of BPI/CBI that the Commission
is a reliable protector of BPI/CBI; (b) disciplining breachers; and (c)
deterring future violations. As the Conference Report to the Omnibus
Trade and Competitiveness Act of 1988 observed: ``[T]he effective
enforcement of limited disclosure under [APO] depends in part on the
extent to which private parties have confidence that there are
effective sanctions against
[[Page 71919]]
violation.'' H.R. Conf. Rep. 100-576, at 623 (1988).
The Commission has worked to develop consistent jurisprudence, not
only in determining whether a breach has occurred, but also in
selecting an appropriate response. In determining the appropriate
response, the Commission generally considers mitigating factors such as
the unintentional nature of the breach, the lack of prior breaches
committed by the breaching party, the corrective measures taken by the
breaching party, and the promptness with which the breaching party
reported the violation to the Commission. The Commission also considers
aggravating circumstances, especially whether persons not authorized
under the APO actually viewed the BPI/CBI. The Commission considers
whether there have been prior breaches by the same person or persons in
other investigations and multiple breaches by the same person or
persons in the same investigation.
The Commission's rules permit an economist or consultant to obtain
access to BPI/CBI under the APO in a title VII, safeguard, or LHT
investigation if the economist or consultant is under the direction and
control of an attorney under the APO, or if the economist or consultant
appears regularly before the Commission and represents an interested
party who is a party to the investigation. See 19 CFR 207.7(a)(3)(i)(B)
and (C); 19 CFR 206.17(a)(3)(i)(B) and (C); and 19 CFR
208.22(a)(3)(i)(B) and (C). Economists and consultants who obtain
access to BPI/CBI under the APO under the direction and control of an
attorney nonetheless remain individually responsible for complying with
the APO. In appropriate circumstances, for example, an economist under
the direction and control of an attorney may be held responsible for a
breach of the APO by failing to redact APO information from a document
that is subsequently filed with the Commission and served as a public
document. This is so even though the Commission may also hold the
attorney exercising direction or control over the economist or
consultant responsible for the breach of the APO. In section 337
investigations, technical experts and their staff who are employed for
the purposes of the investigation are required to sign onto the APO and
agree to comply with its provisions.
The records of Commission investigations of alleged APO breaches in
antidumping and countervailing duty cases, section 337 investigations,
safeguard investigations, and LHT investigations are not publicly
available and are exempt from disclosure under the Freedom of
Information Act, 5 U.S.C. 552. See, e.g., 19 U.S.C. 1677f(g); 19 U.S.C.
1333(h); 19 CFR 210.34(c).
The two types of breaches most frequently investigated by the
Commission involve: (1) The APO's prohibition on the dissemination of
BPI or CBI to unauthorized persons; and (2) the APO's requirement that
the materials received under the APO be returned or destroyed and that
a certificate be filed with the Commission indicating what actions were
taken after the termination of the investigation or any subsequent
appeals of the Commission's determination. The dissemination of BPI/CBI
usually occurs as the result of failure to delete BPI/CBI from public
versions of documents filed with the Commission or transmission of
proprietary versions of documents to unauthorized recipients. Other
breaches have included the failure to bracket properly BPI/CBI in
proprietary documents filed with the Commission, the failure to report
immediately known or suspected violations of an APO, and the failure to
adequately supervise non-lawyers in the handling of BPI/CBI.
Occasionally, the Commission conducts APO breach investigations
that involve members of a law firm or consultants working with a firm
who were granted access to APO materials by the firm although they were
not APO signatories. In many of these cases, the firm and the person
using the BPI/CBI mistakenly believed an APO application had been filed
for that person. The Commission has determined in all of these cases
that the person who was a non-signatory, and therefore did not agree to
be bound by the APO, could not be found to have breached the APO.
However, under Commission rule 201.15 (19 CFR 201.15), the Commission
may take action against these persons for good cause shown. In all
cases in which the Commission has taken such action, it decided that
the non-signatory was a person who appeared regularly before the
Commission, who was aware of the requirements and limitations related
to APO access, and who should have verified his or her APO status
before obtaining access to and using the BPI/CBI. The Commission notes
that section 201.15 may also be available to issue sanctions to
attorneys or agents in different factual circumstances in which they
did not technically breach the APO, but their action or inaction did
not demonstrate diligent care of the APO materials, even though they
appeared regularly before the Commission and were aware of the
importance that the Commission places on the proper care of APO
materials.
Counsel participating in Commission investigations have reported to
the Commission potential breaches involving the electronic transmission
of public versions of documents. In these cases, the document
transmitted appears to be a public document with BPI/CBI omitted from
brackets. However, the confidential information is actually retrievable
by manipulating codes in software. The Commission has found that the
electronic transmission of a public document containing BPI/CBI in a
recoverable form was a breach of the APO.
The Commission has cautioned counsel to be certain that each
authorized applicant files with the Commission within 60 days of the
completion of an import injury investigation or at the conclusion of
judicial or binational review of the Commission's determination, a
certificate stating that, to his or her knowledge and belief, all
copies of BPI/CBI have been returned or destroyed, and no copies of
such materials have been made available to any person to whom
disclosure was not specifically authorized. This requirement applies to
each attorney, consultant, or expert in a firm who has access to BPI/
CBI. One firm-wide certificate is insufficient.
Attorneys who are signatories to the APO representing clients in a
section 337 investigation should inform the administrative law judge
and the Secretary if there are any changes to the information that was
provided in the application for access to the CBI. This is similar to
the requirement to update an applicant's information in title VII
investigations.
In addition, attorneys who are signatories to the APO representing
clients in a section 337 investigation should send a notice to the
Commission if they stop participating in the investigation or the
subsequent appeal of the Commission's determination. The notice should
inform the Commission about the disposition of CBI obtained under the
APO that was in their possession, or the Commission could hold them
responsible for any failure of their former firm to return or destroy
the CBI in an appropriate manner.
III. Specific APO Breach Investigations
A. Fiscal Year 2020
Case 1. The Commission determined that a supervisory attorney at a
law firm breached an APO in a title VII investigation when he directed
legal support staff at his firm to distribute two APO releases
containing BPI to consultants before the filing, and the Commission's
acceptance, of the
[[Page 71920]]
consultants' APO amendment application. The Commission issued a warning
letter to the supervisory attorney but found that the supervisory
attorney's legal support staff and the consultants had not breached the
APO.
Before the first APO release at issue, the supervisory attorney, an
APO signatory, directed his legal assistant to file an APO amendment
application for the consultants. Due to technical issues, the legal
assistant did not file the APO amendment application and did not inform
anyone that she never completed the filing. The legal assistant stated
that she was not aware of the time sensitivity of the APO amendment
application. Without confirming whether the retained consultants had
been added to the APO, the supervisory attorney instructed legal
support staff to provide APO release materials from two releases to the
retained consultants. Legal support staff at the firm did not confirm
whether the consultants had been added to the APO before transferring
the APO release materials. The day after the second release, the firm's
staff discovered that the consultants' APO amendment application had
not been filed with the Commission, and staff filed the APO amendment
application on the same day as this discovery. The Commission
ultimately granted the application and placed the consultants on the
APO.
The Commission first became aware of this breach through opposing
counsel. The supervisory attorney did not notify the Secretary of the
potential breach until twelve days after his firm's discovery.
In determining whether to issue a sanction for the breach, the
Commission considered mitigating factors, including that: (1) The
breach was unintentional; (2) the supervisory attorney had not
previously been found in breach of an APO; (3) he and his firm took
immediate corrective action upon discovery of the breach; (4) his firm
implemented new procedures to prevent similar breaches in the future;
and (5) the retained consultants were eventually added to the APO,
handled the BPI at all times as if they were subject to the APO, and
did not disclose the BPI to unauthorized individuals. The Commission
also considered the following aggravating factors: (1) The retained
consultants were not authorized under the APO when they first received
and viewed BPI; (2) opposing counsel, not the supervisory attorney or
his firm, first notified the Commission of the breach; and (3) the
supervisory attorney and his firm waited twelve days after discovering
the breach to report it to the Commission. Ultimately, the Commission
determined that the mitigating factors outweighed the aggravating
factors, and it issued a warning letter rather than a sanction. The
consultants were the only non-signatories to view the BPI, and they
were eventually added to the APO.
The Commission also considered whether to find the supervisory
attorney's legal support staff and the consultants in breach of the
APO, and it determined not to do so. The Commission found that the
supervisory attorney's lack of oversight resulted in his staff's
failure to comply with APO procedures. He had not relayed the urgency
of the APO amendment application filing, and he did not instruct his
staff to ensure that the consultants were on the APO before
transferring APO release materials to them. The Commission similarly
determined not to find the consultants in breach because they did not
know that they were not authorized under the APO to view the BPI when
they received it. Further, the consultants handled the BPI at all times
as if they were under the APO, and they did not share the APO materials
with unauthorized individuals.
B. Fiscal Year 2021
Case 1. The Commission determined that an attorney breached the APO
in a section 337 investigation when he disclosed CBI in open court
before the U.S. Court of Appeals for the Federal Circuit (``CAFC'').
The Commission issued a private letter of reprimand.
The attorney's disclosure of CBI occurred during his rebuttal to
opposing counsel's opening oral argument. Opposing counsel objected to
the disclosure and moved that the CAFC not post a transcript or
recording. In response to opposing counsel's objection, the attorney
ended his rebuttal. A Commission attorney was present at the time of
the disclosure and notified the Secretary of the breach. Following
additional briefing from the parties on the disclosure, the CAFC
ultimately granted opposing counsel's motion to withhold the transcript
and recording of the oral argument from its website, and no transcript
or recording was ever posted. However, individuals not authorized to
receive CBI under the APO were present at the CAFC oral argument at the
time of the disclosure.
In determining the appropriate sanction in response to the breach,
the Commission considered mitigating factors, including: (1) The breach
was inadvertent and unintentional; (2) the Commission was immediately
aware of the breach due to its staff's presence at the oral argument;
and (3) the attorney took prompt corrective action to mitigate the
effect of the breach. The Commission also considered the following
aggravating factors: (1) Opposing counsel discovered the breach; and
(2) the Commission presumed that non-signatories to the APO who were
present at the CAFC oral argument heard the CBI, and the attorney did
not present any evidence to the contrary. The Commission determined to
issue a private letter of reprimand.
By order of the Commission.
Issued: December 14, 2021.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2021-27413 Filed 12-17-21; 8:45 am]
BILLING CODE 7020-02-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.