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**A legal defense trust fund has been set up to assist the remaining Respondents. For more information or to learn where to submit funds, click here.
As we have reported in our past newsletters, Caterpillar Corporation filed a complaint under Section 337 of the Tariff Act of 1930 with the U.S. International Trade Commission in Washington D.C. seeking to halt all future imports of used gray market (“gray iron”) Caterpillar hydraulic excavators that are not imported by Caterpillar itself. The complaint also seeks to enjoin the named Respondents from future sales of used Caterpillar excavators that have already been imported into the U.S.
The ITC Judge assigned to the Caterpillar case (Judge Barton) unexpectedly resigned from the ITC effective July 3, 2007, which is only 6 days before the trial in the case was scheduled to begin. The case will now be reassigned to another ITC Judge. In light of this unexpected development, Judge Barton granted a stay of the proceedings until the case is reassigned by the ITC to another Judge. It is unclear when the trial will be held before the new Judge. It also is unclear when the Judge’s preliminary ruling (“initial determination”) will be due. Under the original schedule, the initial determination was due September 6, 2007. The Judge’s initial determination will be subject to review by the 6 Commissioners of the ITC, who will have the final say as to whether any Order will issue. The target date for completion of this case by the ITC also may be moved back in light of this development. Currently, the completion target date is set for December 6, 2007.
Since the last report on the status of this case, 13 Respondents have settled with Caterpillar. They are no longer defending against the case. Another Respondent, Key Equipment, has been found by the Judge to have failed to properly participate in the proceedings and it will be limited in its ability to defend itself by order of the Judge. Key Equipment has announced that it likely will settle out of the case and cease participation completely. Two Respondents, Frontera Equipment and Barkley, failed to participate and the ITC has ruled that they are now in default. These two Respondents are, therefore, precluded from further defending themselves in the case and, if a ruling is ultimately entered in Caterpillar’s favor against any Respondent, Frontera and Barkley will be subject to the ruling.
The only remaining Respondents defending against Caterpillar’s case are: Alex Lyon & Son Sales Managers and Auctioneers, Inc., Hoss Equipment Co., Inc., World Tractor & Equipment Comp. LLC, Wordwide Machinery, Inc., and Yoder & Frey Auctioneers, Inc. If these parties also settle with Caterpillar, Caterpillar will receive from the ITC an exclusion order that will prohibit anyone other than Caterpillar from importing into the U.S. used Caterpillar hydraulic excavators.
The participating Respondents and Caterpillar have completed all discovery against each other. The discovery tools included depositions, interrogatories, requests for admissions and requests for document production. Respondents sought discovery against Caterpillar and its subsidiaries: CRSI, Cat Financial and Carter Machinery. Respondents also sought discovery against 11 of Caterpillar’s authorized dealers: H.O. Penn, MacAllister Machinery, Ringpower, Empire Southwest, Milton, Warren, Holt of Texas, Quinn/Shepard, Wagner, Gregory Poole Equipment, and Carolina Tractor. Respondents had to file 7 motions to compel against Caterpillar in order to get it to comply with Respondents’ discovery requests.
Caterpillar filed a motion for summary determination that all of Respondents’ affirmative defenses should be denied. The Judge granted the request with respect to some of the affirmative defenses but denied the request as to 3 remaining affirmative defenses. Both Caterpillar and Respondents have moved for summary determination that they should prevail on the merits and that trial is not necessary. Those motions are currently pending before the Judge.
The Judge also granted a motion by Respondents that Caterpillar should be required to turn over several documents that Caterpillar asserted were privileged. Because Caterpillar failed to provide a log of such documents to opposing counsel, the Judge ruled that Caterpillar failed to properly assert the privilege and ordered the documents turned over to Respondents’ counsel. Respondents have filed a follow up motion seeking an order to show cause why Caterpillar should not be held in violation of that order for withholding from production several important documents. |
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Update of Complaint by Caterpillar to the US International Trade Commission |
