Prosecutorial Discretion — the Quick ITC Escape

The United States International Trade Commission’s (ITC) third decision in five years not to investigate an alleged violation of Section 337 of the Tariff Act, 19 U.S.C. § 1337, appears to contradict its statutory mandate. The ITC is instructed that it “shall investigate” alleged violations of Section 337, yet it dismissed complaints in 2012, 2014 and 2017. On December 1, 2017, complainants Amarin Pharma, Inc. and Amarin Pharmaceuticals Ireland Ltd. appealed the ITC’s dismissal to the Federal Circuit.

Although the outcome of Amarin’s appeal remains unknown, the dismissals demonstrate fleeting opportunities for respondents that have strong arguments to present them and avoid or reduce the expense of ITC litigation. Regardless of the outcome, a respondent only stands to benefit from conducting a substantive evaluation of the allegations against it immediately after a complaint is filed. Every complaint must be drafted with sufficient specificity to enable relief without further briefing or evidence. Complainants must remain vigilant of their claims during pre-institution review, and use the 30-day pre-institution period to monitor their allegations and respond definitively to pleading deficiencies. Maintaining post-filing vigilance increases the likelihood that an investigation will be instituted.

The Federal Circuit’s decision in Amarin Pharma, Inc. and Amarin Pharmaceuticals Ireland Ltd.’s appeal of the ITC’s dismissal in Omega-3 Products, will confront its predecessor court’s deference in Syntex Agribusiness, and shed light on what the word “shall” requires the ITC do.