Freight Rail Coupler Makers Contest Bid for Expedited Briefing at CAFC in Conflict-of-Interest Case
The U.S. Court of Appeals for the Federal Circuit should reject plaintiff-appellants' bid for an expedited briefing schedule in an attorney conflict-of-interest case, defendant-intervenor-appellee Coalition of Freight Rail Coupler Producers argued in a Jan. 19 reply brief. The appellants, led by Amsted Rail Co., have failed to both establish good cause to expedite the appeal and show that they will suffer irreparable harm absent the accelerated schedule, since the underlying injury proceeding at the International Trade Commission will be subject to judicial review after the proceeding is finished, the coalition said (Amsted Rail Co. v. United States, Fed. Cir. # 23-1355).
Sign up for a free preview to unlock the rest of this article
Export Compliance Daily combines U.S. export control news, foreign border import regulation and policy developments into a single daily information service that reliably informs its trade professional readers about important current issues affecting their operations.
The case concerns a past ITC injury investigation on freight rail couplers and parts thereof from China and a present injury investigation on the same goods from China and Mexico. ARC is a U.S. producer and importer of freight rail couplers, and originally employed Wiley Rein, where Daniel Pickard was a partner at the time, to represent it.
After filing a petition for ARC, Pickard moved to Buchanan Ingersoll. Following a negative injury determination in the original ITC case, Pickard filed a new petition naming imports of freight rail couplers from Mexico and China as the source of the injury, knowing ARC had the only imports from Mexico via its maquiladora factory, ASF-K. The plaintiffs described this as a "betrayal" by Pickard, and said the attorney used ARC's information -- that ARC had the only imports of freight rail couplers from Mexico via its maquiladora factory -- against it.
CIT dismissed the case for lack of jurisdiction (see 2211160057). The plaintiffs appealed to the Federal Circuit, where they argued in their opening brief that CIT did in fact have jurisdiction under Section 1581(i), the court's "residual" jurisdiction (see 2301170052). The appellants also filed for an expedited briefing schedule, claiming that they will suffer irreparable harm if their claims against Pickard are not heard prior to when the ITC reaches its final conclusion.
Responding to the expedited briefing bid, the coalition argued that the appellants have not pleaded irreparable harm "with any specificity or otherwise made any showing of irreparable harm." The appellants could also not have been harmed by the information allegedly shared with Pickard and Buchanan during the preparation of the petitions since ARC "is not the adverse foreign producer." The affected producer would be ASF-K, which was not a former client of Pickard's. "As a result, there is no direct conflict with a former client," the brief said.
"Finally, the briefing schedule that the Appellants propose, allowing just fourteen days for Appellees to file a response brief, would disadvantage Appellees due to the complexity of the issues to be briefed as well as due to the Attorney having several pending matters before the U.S. Court of International Trade, the Commission, and Commerce with substantive briefing deadlines in the upcoming weeks," the coalition said. "In addition, the Attorney has international travel scheduled in the month of February."