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Volume 43 - Issue 2


Enforcement Penalties at the ITC

Andrea R. Hugill,John C. Jarosz,Katherine D. Cappaert | January 1, 2023

The U.S. International Trade Commission (“ITC” or “Commission”) has grown in importance as a venue for U.S. companies to pursue intellectual property (“IP”) violators and to block the sale or importation of goods from overseas that infringe U.S. IP rights. Once a violation of the Section 337 of the Tariff Act of 1930 is found, an order halting further infringement, including importation, is almost always entered. In theory, potentially sizeable penalties may be imposed on entities that do not comply with the terms of an import restriction. In practice, the terms of an import restriction are almost always honored, but when they are not, maximum enforcement penalties are rarely imposed. In fact, most penalties for non-defaulting respondents are one-third or less of the maximum penalty allowed by the law. Thus, non-compliance tends not to be too harshly punished. Penalty determinations at the ITC are governed by a set of six factors, called “the EPROMs factors,” which arose from the Commission’s 1989 decision in Certain Erasable Programmable Read Only Memories (“EPROMs”). To date, no scholarship has sought to examine how courts have treated these factors collectively or evaluated their relevance individually to the penalties ultimately adopted by the ITC. Without such an investigation, parties considering enforcement actions have been left with little guidance as to the merits of their case. This paper provides a descriptive analysis of the EPROMs factors as well as an economic analysis of the relationship between these six factors and enforcement penalties imposed on ITC respondents. We undertake a qualitative and quantitative review of all ITC cases to date in which penalties have been assessed either by an Administrative Law Judge (“ALJ”) or by the Commission itself. In short, we find that maximum enforcement penalties are rarely imposed. Moreover, proof of the good faith or bad faith of respondent’s compliance with an import restriction (Factor 1) appears to be the most important of the EPROMs factors. Even proving respondent’s bad faith, however, rarely leads to imposition of the maximum penalty.


Friendly Skies, Unfriendly Terms: Class Action Waivers and Force Majeure Clauses in Airline Contracts of Carriage

Grant Glazebrook | January 1, 2023

The airline contract of carriage. These unassuming bits of language govern the relationship between passengers and their airlines. Over the past three years, a new term has sprouted in these agreements: the class action waiver. Before March 2020, only two of the ten largest United States-based airlines’ contracts of carriage had class action waivers. But as of April 2023, eight now have class action waivers. Why have airlines quickly adopted these copycat terms? What are the implications of this new contractual trend for flyers, airlines, and regulators? This note aims to contribute to the scholarship around these questions in three ways. First, this note tracks the development of class action waivers and force majeure clauses in airline contracts of carriage between 2020 and 2023. Second, it evaluates the enforceability of existing class action waivers in airline contracts of carriage and outlines possible defenses and challenges, including Airline Deregulation Act pre-emption and unconscionability. Third, it compares the United States’ current system for adjudicating airline-passenger disputes with a Passenger Bill of Rights system, as well as regulatory regimes in Canada, Germany, and the United Kingdom. To conclude, it proposes a system of private alternative dispute resolution modeled after the United Kingdom’s as a possible alternative to the United States’s current litigation-focused system. This solution could help airline defendants avoid classwide liability and its associated costs while ensuring that passengers receive a viable opportunity to obtain redress.

Submission of Amici Briefs in Arbitration Related to Environmental Concerns: Developing a Better Framework for Their Consideration Under ICSID Rule 37(2)

Clarissa Galaviz Lizarraga | January 1, 2023

This note examines the consideration of amicus curiae briefs in international arbitration matters under the International Centre for Settlement of Investment Disputes (“ICSID”), specifically focusing on arbitration cases involving environmental concerns. The note explores trends in consideration of amicus briefs in environmental arbitration by taking a historical look at cases and the rationales behind the decisions of the tribunals to consider amicus briefs and raises concerns regarding a better, uniform approach to amicus briefs. To achieve a better system of consideration of amicus briefs when environmental concerns are at play, given their public and ecologic interest, the author suggests reworking and expanding Rule 37(2) of ICSID for a complete guideline for arbitration tribunals when considering amicus briefs. Furthermore, the note explores the suggestion of modeling the approach to the regulation and consideration of amicus briefs after research on American domestic courts’ treatment of these types of submissions to ensure that public environmental concern remains considered while adequately moderated.