WEST/CRSNO. 2010-1395

UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT

. --_ _TIANRUI GROUP COMPANY LIMITED and¢-_-_ _v_-_"NRUI GROUP FOUNDRY COMPANY LIMITED

" Appellants,

and

B_"_ STANDARD CAR TRUCK COMPANY, INC. and

BARBER TIANRUI RAILWAY SUPPLY, LLC

Appellants,

Vi

UNITED STATES INTERNATIONAL TRADE COMMISSION,

Appellee,

AMSTED INDUSTRIES INCORPORATED,]ntervenor.

On appeal from the United States International Trade Commission

in Investigation No. 337-TA-655.

APPELLANTS' REPLY BRIEF ON APPEAL

Tom M. Schaumberg

Jonathan J. EnglerADDUCI, MASTRIANI g4 SCHAUMBERG LLP

1200 17 th Street NW, 5 th Floor

Washington, DC 20036

Telephone: (202) 467-6300

Joel M. Freed

MCDERMOTT WILL & EMERY LLP

600 13 th Street NW

Washington, DC 20005

Telephone: (202) 756-8029

Counsel for Appellants Standard Car

Truck Company Inc. and Barber

TianRui Railway Supply LLC

Continued on next page...

Ruixue Ran

JUN HE LAW OFFICES

China Resources Building

8 Jianguomenbei Avenue

Beijing 100005 P. R. CHINA

Telephone: 86-10-85191300

r.

e-

t,

Counsel for Appellants TianRui Group

Company Ltd, TianRui Group Foundry

Company Ltd and Barber TianRui Railway

Supply LLC

u .'

i .

TABLE OF CONTENTS

I°

II.

INTRODUCTION ........................................................................................... 1

THE COMMISSION HAS NO AUTHORITY TO APPLY

TRADE SECRET LAW EXTRATERRITORIALLY ................................... 2

A° Tianrui Has Not Acquiesced to the Commission's

Determination That It Misappropriated Trade Secrets inChina ..................................................................................................... 2

B° The Commission and Amsted Have Effectively

Conceded That Section 337 Does Not Authorize the ITC

to Apply U.S. State Trade Secret Law Extraterritorially ...................... 4

C° The Commission Forsakes Its Adjudication of Acts in

China Under Illinois Law in Favor of a New Theory ofActs in the United States ....................................................................... 6

° The ID Did Not Find That Any of the Underlying

Acts of Alleged Misappropriation Occurred in theUnited States ............................................................................... 8

2_ The Domestic Acts Identified by the Commissionand Amsted in Their Briefs Do Not Establish

Trade Secret Misappropriation Under Illinois Law ................... 9

, The Domestic Acts Alleged by the Commissionand Amsted in Their Briefs Are Insufficient to

Overcome Morrison's Presumption Against

Extraterritorial Application of U.S. Law .................................. 11

D° The Commission's Interpretation of Section 337 As

Granting Unlimited Extraterritorial Authority to Find

Unfair Acts Abroad Is Unsupported ................................................... 12

l° The Commission's Arrogation of Authority to

Apply U.S. Law Extraterritorially to Find "Unfair

Acts" Overseas Finds No Support in the Statute

and Cannot Be Aligned with Morrison .................................... 12

Ill.

, The Commission Improperly Conflates Its In Rem

Jurisdiction Over Imported Goods with Its Claim

of Authority to Apply U.S. Law Extraterritorially ................... 14

THE COMMISSION ERRONEOUSLY FOUND A

DOMESTIC INDUSTRY WHEN AMSTED ADMITTEDLY

DOES NOT PRACTICE THE ASSERTED TRADE SECRETS

IN THE UNITED STATES .......................................................................... 17

A° The "Plain Language" of Section 337 Does Not Resolve

the Dispute .......................................................................................... 17

o The 1988 Amendments Built on Commission

Precedent and Enacted Discrete Changes to the

Domestic Industry Requirement ............................................... 18

, The 1988 Amendments Left the Statute Essentially

Unchanged with Respect to Non-Statutory IP ......................... 19

B, The Commission Has Consistently Interpreted Section

337 to Require Complainants in IP-Based Investigationsto Utilize the Asserted IP in the United States ................................... 21

, The Commission and Amsted Mischaracterize

Floppy Disk Drives ................................................................... 22

, There Is No Commission Precedent Departing

from the Rule That Complainants in All IP-Based

Investigations Must Use the Asserted IP in theUnited States ............................................................................. 24

, The Investigations Cited Do Not Support the

Commission's Departure from the Requirement

That Complainants in IP-Based Investigations Usethe Asserted IP .......................................................................... 26

° Ink Markers Does Not Support the Commission's

Argument That Domestic Use of Asserted IP Is

Required Only with Respect to Statutory IP Rights ................. 29

IV. CONCLUSION ............................................................................................. 31

ii

TABLE OF AUTHORITIES

Cases

Am. Antenna Corp. v. AmperexElec. Corp., 546 N.E.2d 41 (Ill. App. Ct. 1989) .... 9

Amgen, Inc. v. Int'l Trade Comm'n, 902 F.2d 1532 (1990) ..................................... 15

Bourdeau Bros. v. Int'l Trade Comm'n, 444 F.3d 1317 (Fed. Cir. 2006) ............... 13

Dodrill v. Ludt, 764 F.2d 442 (6th Cir. 1985) ........................................................ ,.. 4

In reAmtorg Trading Corp., 75 F.2d 826 (CCPA 1935) ........................................ 16

In re Banco Santander Securities-Optimal Litig., Nos. 09-MD-02073-CIV,

09-CV-20215-CIV, 2010 WL 3036990 (S.D. Fla. July 30, 2010) ........................ 5

IRSv. NoelEstate, 380 U.S. 678 (1965) ........................................................... 17, 20

Morrison v. NationalAustralia BankLtd., 130 S. Ct. 2869 (2010) ................. passim

Norex Petroleum Ltd. v. Access Indus., Inc.,

No. 07-4553-cv, 2010 WL 3749281 (2d Cir. Sept. 28, 2010) ............................... 5

Viscofan, S.A.v. Int'l Trade Comm'n, 787 F.2d 544 (Fed. Cir. 1986) .................... 13

Other Authorities

H.R. Rep. No. 100-40 (1987) .................................................................................. 19

H.R. Rep. No. 100-576 (1988) .......................................................................... 18, 19

H.R. Rep. No. 76-1781 (1940) ................................................................................ 16

S. Rep. No. 100-71 (June 11, 1987) ............ ;........................................................... 19

S. Rep. No. 1903_ 76th Cong., 3rd Sess. (1940) ..................................................... 16

Administrative Decisions

Certain Apparatus for the Continuous Production of Copper Rod,

Inv. No. 337-TA-52, 1979 ITC LExIS 99 (Nov. 1979) ...................................... 24

Certain Electric Power Tools, Battery Cartridges, and Battery Chargers,

Inv, No. 337-TA-284, 1991 ITC LEXIS 909 (June 1991) .................................. 29

Certain Floppy Disk Drives and Components Thereof,

Inv, No. 337-TA-203, 1985 ITC LEXIS 134 (Sept. 1985) ............................ 22, 23

Certain Hard Sided Molded Luggage Cases, Inv. No. 337-TA-262,

1987 ITC LEXIS 30, Unreviewed ID (Nov. 4, 1987) ......................................... 28

iii

Certain Ink Markers and Packaging Thereof

Inv. No. 337-TA-522, 2007 ITC LEXIS 1450 (Dec. 2007) ................................ 29

Certain Luggage Products, Inv. No. 337-TA-243,

1987 ITC LEXIS 212 (June 1987) ................................................................. 25, 26

Certain Miniature Plug-ln Blade Fuses,

Inv. No. 337-TA-114, 1983 ITC LEXIS 196 (Jan. 1983) ................................... 29

Certain Nut Jewelry & Parts Thereof Inv. No. 337-TA-229,

1986 LEXIS 233 (Nov. 1986) ........................................................................ 26, 27

Certain Processes for the Manufacture of Skinless

Sausage Casings & Resulting Prod.,

Inv. No. 337-TA-148/169, 1984 WL 273803, Unreviewed ID (Dec. 1984) ....... 21

Certain Woodworking Machines,

Inv. No. 337-TA-174, 1987 ITC LEXIS 226 (May 1987) ...................... 25, 26, 28

iv

I. INTRODUCTION

The U.S. International Trade Commission ("the Commission or "the ITC")

and Amsted Industries Incorporated ("Amsted" or "Complainant") have entirely

failed to address, let alone refute, the presumption against the extraterritorial

application of U.S. law expressed in Morrison v. National Australia Bank Ltd., 130

S. Ct. 2869 (2010). They argue, without any support, that no such authorization is

necessary because 19 U.S.C. § 1337 ("Section 337") already gives the Commission

jurisdiction over any importation and, therefore, unbounded authority to find an

"unfair act." See, e.g., Comm'n Br. Parts I.B-I.C.; Amsted Br. Part II. The

Commission further posits a new theory in its brief that the domestic activities

alone of TianRui Group Company Limited, TianRui Group Foundry Company

Limited, Standard Car Truck Company Inc. and Barber TianRui Railway Supply

LLC (collectively, "TianRui" or "Appellants") are sufficient to establish "trade

secret misappropriation" under Illinois law. This theory, which is lawyer argument

and found nowhere in the Initial Determination on Violation and Recommended

Determination on Remedy ("ID") (JA-62-154), is legally erroneous, both as a

matter of the Illinois law that the Commission purports to apply and under

Morrison, and is predicated on a false characterization of TianRui's U.S. activities

as "improper." See Comm'n Br. 16.

Similarly, the Commission's and Amsted's argument that the "domestic

industry" requirement can be satisfied without Amsted's use of the asserted trade

secrets in the United States is legally erroneous. The statute and legislative history

unmistakably show that in 1988 Congress left undisturbed, in relevant part, the

statutory provision that the Commission had consistently interpreted as requiring

complainants in all intellectual property ("IP")-based investigations to practice the

asserted IP in the United States.

II. THE COMMISSION HAS NO AUTHORITY TO

APPLY TRADE SECRET LAW EXTRATERRITORIALLY

A. Tianrui Has Not Acquiesced to theCommission's Determination That It

MisapDrooriated Trade Secrets in China

The Commission erroneously asserts that TianRui, for purposes of this

appeal, "does not dispute the ALJ's holding that 'there is overwhelming direct and

circumstantial evidence that TianRui obtained its manufacturing process for cast

steel railway wheels through the misappropriation of ABC Trade Secrets.'"

Comm'n Br. 11-12. This is false. TianRui has never acquiesced to the ID's

determination that, as a matter of Illinois law, it "misappropriated ABC's trade

secrets" in China (Comm'n Br. 24), but has consistently argued, both before the

Commission and here, that this holding is legally erroneous. See, e.g., Appellants'

Br. on Appeal 8 ("From the outset of this Investigation, TianRui argued that the

Commission had no statutory authority to apply Illinois law extraterritorially to

2

events that transpired exclusively in China and on that basis to find a violation of

Section 337."). This is further reinforced by the Commission's tortured discussion

of Order No. 14 (JA-155-164) and its reliance on unsupported assertions in the

Complaint, as to which the Commission writes "there subsequently were no

findings to the contrary." Comm'n Br. 10. The Commission, however, has no

authority to relieve Complainant of its burden of proof.

The reason the Commission seeks to mischaracterize TianRui as having

acquiesced to the Administrative Law Judge's ("ALJ") holding of

"misappropriation" under Illinois law is clear: without this "admission" by

TianRui, the Commission has no remaining basis to assert that there were "unfair

acts in the importation of articles into the United States," as required to find a

violation of Section 337. Comm'n Br. 26. As discussed infra, the Commission

effectively concedes that it had no authority under Section 337 to apply Illinois

trade secret law extraterritorially, and it does not argue that TianRui's activities in

the United States were themselves "improper" under the Illinois Trade Secrets

Act (ITSA), 765 Ill. Comp. Stat. 1065/2.

TianRui's decision to appeal to this Court only the most significant legal

issues, rather than the findings resulting from the ALJ's application of Illinois trade

secret law to the facts, cannot be interpreted as acquiescence to those findings.

Such an inference is particularly unjustified given that TianRui, from the start of

the Investigation, see JA-155-164, challenged the Commission's underlying legal

authority to adjudicate acts in China. To find otherwise would be contrary to the

record and to principles of judicial economy:

If a judgment could be entirely vacated yet preclusive

effect still given to issues determined at trial but not

specifically appealed, appellants generally would feel

compelled to appeal every contrary factual determination.

Such inefficiency neither lawyers nor judges ought to

court. Litigants ought to be encouraged to expend their

energies on their most compelling issues and

arguments ....

Dodrill v. Ludt, 764 F.2d 442, 444 (6th Cir. 1985) (defendant who appealed

conviction solely on constitutional grounds "was not acquiescing in adverse factual

findings made at this trial"). The same principle applies here: when a party

appeals from a Commission determination, it should not be inferred that the

appellant has acquiesced to every non-appealed issue of fact or law below.

B. The Commission and Amsted Have

Effectively Conceded That Section 337

Does Not Authorize the ITC to Apply U.S.

State Trade Secret Law Extraterritorially

The Commission and Amsted do not challenge TianRui's central legal

argument: Section 337 does not authorize the Commission to apply U.S. state

trade secret law extraterritorially. Neither the ITC nor Amsted discusses Morrison

or disputes the salience here of the Supreme Court's holding that "legislation of

Congress, unless a contrary intent appears, is meant to apply only within the

4

territorial jurisdiction of the United States," and that "the affirmative intention of

the Congress" to apply a law extraterritorially must be "clearly expressed to give a

statute extraterritorial effect." Morrison, 130 S. Ct. at 2877-78 (citations omitted).

It is not surprising that the Commission and Amsted do not dispute that

Section 337 does not authorize the Commission to apply U.S. state law

extraterritorially given Morrison's clarity and the lack of express authorizing

language in the statute. Since Morrison was decided in June 2010, numerous U.S.

courts have embraced its bright-line rule:

The Morrison Court rejected various tests devised over

the years to divine a statute's extraterritorial application

in favor of a bright line rule: "[w]hen a statute gives no

clear indication of an extraterritorial application, it hasnone."

Norex Petroleum Ltd. v. Access Indus., Inc., No. 07-4553-cv, 2010 WL 3749281,

at *3 (2d Cir. Sept. 28, 2010) (citations omitted); see also, e.g., In re Banco

Santander Securities-Optimal Litig., Nos. 09-MD-02073-CIV, 09-CV-20215-CIV,

2010 WL 3036990, at "30-31 (S.D. Fla. July 30, 2010) (citing Morrison and

dismissing case after finding foreign sovereign's interest "clearly outweighs the

United States' nominal interests in what is essentially a foreign dispute"). The

silence of the Commission and Amsted with respect to the territoriality issue in

general, and Morrison in particular, speaks to the indefensibility of the ITC's

extraterritorial application of Illinois law to acts that occurred entirely in China.

C. The Commission Forsakes Its Adjudicationof Acts in China Under Illinois Law in Favor

of a New Theo_ of Acts in the United States

After effectively conceding that Section 337 does not authorize the

extraterritorial application of U.S. state law, the Commission disavows the ID's

overarching finding that, under Illinois law, TianRui misappropriated trade secrets

through acts in China. See ID, at 31-38. The Commission now states that it "is not

in any way adjudicating TianRui's conduct in China" or "portending [sic] to apply

either Section 337 or Illinois law to conduct or activities that occur in China."

Comm'n Br. 17, 26. This statement cannot be reconciled with the ID which

applied Illinois law and relied solely on acts in China to establish TianRui's

"misappropriation of trade secrets." Compare Comm'n Br. 17 with JA-80

("[C]omplainant Amsted and two of the respondents, SCT and Barber, have their

principal place of business in Illinois. Thus, it is Illinois law that governs.") and

JA-98-138, "General Discussion of Respondents' Misappropriation."

The Commission's disavowal of the ID's adjudication of acts in China cannot

even be reconciled with its statements to this Court that the ALJ "found

that... TianRui-SCTB misappropriated the trade secrets via disclosure by former

employees of Amsted's Chinese licensee, Datong ABC Castings Co., Ltd."

Comm'n Br. 3. See also Comm'n Br. 7 ("TianRui subsequently recruited and hired

nine persons who had been or were employees of DACC .... Through these

employees, TianRui acquired the 128 asserted ABC trade secrets .... ")._ All the

acts identified in the ID leading to a finding of "misappropriation" took place in

China; the ID did not identify a single act of "misappropriation" in the United

States. See JA-98-138.

Finally, without "in any way adjudicating TianRui's conduct in China,"

Comm'n Br. 17, it is impossible for the Commission to have found a violation of

the Illinois Trade Secret Act, which requires acquisition by "improper means" or

use "under circumstances giving rise to a duty to maintain its secrecy" or by "a

person who owed a duty.., to maintain its secrecy .... " ITSA 2(b); Amsted

Br. 28. But for the unauthorized adjudication of TianRui's conduct in China, there

would be no basis for the Commission's finding of an "unfair act."

The Commission's abandonment of the 1D's central holding is followed by

its presentation of a completely new theory of trade secret misappropriation under

Illinois law. For the first time, the Commission now argues that "some of the

misappropriation actually took place in the United States and at the United States

border" because TianRui "misappropriated Amsted's trade secrets through the

I Amsted similarly states that "TianRui poached Amsted's licensee's

employees and acquired Amsted's trade secrets" in China. Amsted Br. 9-10.

Amsted also repeats certain factual allegations it made below, id. 14-17, but the ID

made no such findings, and the record does not support Amsted's allegations.

unauthorized commercial use of those trade secrets." Comm'n Br. 15, 22. 2 The

Commission's newfound domestic "acts of misappropriation" are limited to two:

TianRui's efforts (1) to obtain regulatory approval from the American Association

of Railroads to sell its wheels and (2) to sell and market its wheels in the United

States. Comm'n Br. 20-23. These acts are not mentioned in the ID as a basis for

its findings of trade secret misappropriation.

1. The ID Did Not Find That Any

of the Underlying Acts of Alleged

Misappropriation Occurred in the United States

Despite the Commission's belated attempt to re-cast its findings, the ID did

not find that TianRui's activities in the United States satisfy any element of an

Illinois trade secret misappropriation claim. The Commission implicitly

recognizes that the ID did not find that TianRui did anything improper in the

United States, as is evident from the elliptical nature of statements in its brief. For

example, the Commission weakly argues that "a number of the findings upon

which the ALJ relied.., point to additional acts of misappropriation by TianRui"

in the United States, and that the ALJ "looked at" these domestic activities.

2 BP Chemicals Ltd. v. Jiangsu SOPO Corp., 420 F.3d 810 (8th Cir. 2005),

cited by the Commission on page 21 of its brief, is inapposite, because it relates to

analysis of the statutory "commercial activity" exception to the Foreign Sovereign

Immunities Act, 28 U.S.C. § 1605(a)(2), and does not interpret state trade secretlaw. Moreover, neither that case nor General Universal Systems, Inc. v. HAL, Inc.,

500 F.3d 444 (5th Cir. 2007), also relied on by the Commission (Comm'n Br. 21),involves Illinois law.

Comm'n Br. 21-22, 23 (emphasis added). Given the Commission's duty of candor,

its careful phrasing stops short, as it must, of stating that the ID's trade secret

misappropriation holding was based on any domestic acts.

2, The Domestie Acts Identified by the Commissionand Amsted in Their Briefs Do Not Establish

Trade Seeret Misappropriation Under Illinois Law

None of the U.S. acts alleged by the Commission and Amsted constitutes

trade secret misappropriation, even under Illinois law. The Commission ignores

the necessary predicate element, required by Illinois law, of an improper act: there

must be, inter alia, "acquisition of a trade secret of a person by another person

who knows or has reason to know that the trade secret was acquired by improper

means"; or disclosure by a person who "used improper means to acquire

knowledge of the trade secret," or by a party who "owed a duty to the person

seeking relief to maintain its secrecy .... " ITSA 2(b) (emphasis added). There

can be no improper use of a trade secret unless it was improperly acquired through

a breach of confidentiality. See, e.g., Am. Antenna Corp. v. Amperex Elec. Corp.,

546 N.E.2d 41, 44 (Ill. App. Ct. 1989) CA misappropriation of trade secrets occurs

when a person acquires or discovers a trade secret by improper means or discloses

or uses a trade secret in breach of a duty of confidentiality .... ") (emphasis

added).

9

There is no evidence, however, nor does the Commission argue, that there

was any such "improper" acquisition or breach of duty in the United States. In

fact, the Commission makes its argument "regardless of the location of the

originating misappropriation." Comm'n Br. 24. Even Amsted does not

characterize as "improper" the fact that, almost ten years prior to the time they

were hired by TianRui, two Datong ABC Castings Company Limited (DACC)

employees were given "access to ABC Trade Secrets in the United States" when

they were given "training" and subsequently returned to China. Amsted Br. 9. The

Commission simply assumes that TianRui's importation of its wheels was

"improper" based solely on the false statement that TianRui "does not dispute the

ALJ's holding that 'there is overwhelming direct and circumstantial evidence that

TianRui obtained its manufacturing process for cast steel railway wheels through

the misappropriation of ABC Trade Secrets.'" Comm'n Br. 11-12. This

assumption, as previously discussed, is improper and begs the essential legal

question on appeal: whether the Commission has the authority to apply Illinois

law extraterritorially to find "improper" conduct by TianRui, when all the

underlying acts took place abroad. Without these predicate acts, which occurred

entirely in China, none of the domestic activities identified by the Commission

constitutes "trade secret misappropriation" under Illinois law and none can

therefore constitute an "unfair act" under Section 337.

10

3. The Domestic Acts Alleged by the Commissionand Amsted in Their Briefs Are Insufficient to

Overcome Morrison's Presumption Against

Extraterritorial Application of U.S. Law

The domestic acts relied upon by the Commission are also insufficient to

overcome the presumption against extraterritoriality set forth in Morrison, because

simply alleging some domestic conduct cannot cure an improper effort to apply

domestic law extraterritorially. Morrison, 130 S. Ct. at 2884-85. Instead, a

plaintiff must establish that the domestic conduct alleged is of a type that is the

"focus" of that law, as reflected in the statutory text. ld. at 2884. TianRui's

otherwise lawful domestic sales, marketing and regulatory activities, identified by

the Commission in support of its new domestic misappropriation theory (Comm'n

Br. Part I.A.), are not, however, the types of acts that are the focus of Section 337

or Illinois trade secret law. None of TianRui's domestic acts is "improper" unless

one first assumes that unlawful misappropriation has already occurred. Comm'n

Br. 21-23.

Like the plaintiffs in Morrison, the Commission cannot overcome the

presumption against the extraterritorial application of U.S. law by identifying

minor, lawful U.S. acts by TianRui, "[f]or it is a rare case of prohibited

extraterritorial application that lacks all contact with the territory of the United

States." Morrison, 130 S. Ct. at 2884 (emphasis in original). Only those domestic

acts that are "the objects of the statute's solicitude" suffice to overcome the

1"1

presumption against the extraterritorial application of U.S. law. Id. That rule of

analysis forecloses the Commission's and Amsted's belated efforts to rely upon a

lawful domestic actions to establish "trade secrethandful of otherwise

misappropriation."

D. The Commission's Interpretation of

Section 337 As Granting Unlimited

Extraterritorial Authority to Find

Unfair Acts Abroad Is Unsupported

1. The Commission's Arrogation of Authority to

Apply U.S. Law Extraterritorially to Find

"Unfair Acts" Overseas Finds No Support in

the Statute and Cannot Be Aligned with Morrison

The Commission, again ignoring Morrison, argues that "[a]s long as there is

a nexus between the unfair acts, i.e. trade secret misappropriation in this case, and

the importation of the resulting article.., then the Commission has the authority to

find a violation of Section 337(a)(1)(A) and to take appropriate remedial action to

exclude the misappropriated imports .... " Comm'n Br. 23-24. The Commission

thereby again assumes away a central question of law in this appeal: whether the

1TC had the authority to apply Illinois law extraterritorially to find that exclusively

Chinese conduct constitutes an "unfair act."

The Commission points to no language in the statute, however, to support its

blanket arrogation of extraterritorial authority. The Commission's interpretation of

Section 337 cannot be aligned with Morrison, which requires an "affirmative

12

indication" of extraterritorial reach "in the... Act." 130 S. Ct. at 2883. Nothing

in Section 337 affirmatively confers on the Commission plenary authority to apply

U.S. substantive law, let alone state law, to entirely foreign conduct to find "unfair

acts."

The two cases relied on by the Commission to suggest that this C_urt has

endorsed the extraterritorial application of U.S. law through Section 337, Viscofan,

S.A. v. Int'l Trade Comm'n, 787 F.2d 544 (Fed. Cir. 1986) and Bourdeau Bros. v.

Int'l Trade Comm'n, 444 F.3d 1317 (Fed. Cir. 2006), are inapposite. See Comm'n

Br. 27, 28. Although Viscofan did involve trade secrets, the question whether the

Commission had authority to apply U.S. law abroad was not before the Court.

That case, moreover, predates Morrison, which has removed any possible

ambiguity as to the presumption against extraterritoriality. Similarly, Bourdeau

Bros. does not address the extraterritoriality issue but, rather, clarifies that Section

337 applies to domestically produced gray market items that were exported and

subsequently imported. See Bourdeau Bros., 444 F.3d at 1321-23.

The Commission's generic reference to the legislative history of Section 337

is similarly unavailing. See Comm'n Br. 24. Nothing in the legislative history

indicates that Congress intended to give the Commission unfettered extraterritorial

authority to find unfair acts abroad based on U.S. state law "regardless of [the]

original location of the unfair acts." /d. Morrison is clear that "possible

13

interpretations of statutory language," which is the most Section 337's legislative

history can offer, "do not override the presumption against extraterritoriality." 130

S. Ct. at 2883.

2. The Commission Improperly Conflates

Its In Rein Jurisdiction Over Imported

Goods with Its Claim of Authority

to Apply U.S. Law Extraterritorialiy

The Commission's brief, without citing any authority, asserts that it must

have extraterritorial authority, otherwise, it would not be able to comply "with its

mandate to effectively enforce importation based on trade secret misappropriation,

since a tradesecret causes [sic] of action commonly could involve

misappropriation in the overseas manufacture of articles that are then imported into

and sold within the United States." Comm'n Br. 25-26. This position is

unsupportable. Section 337 makes no mention of trade secret misappropriation.

Moreover, there is no statutory basis for the Commission's implication that it

possesses a special congressional mandate to police alleged trade secret

misappropriation abroad that trumps the presumption against the extraterritorial

application of U.S. law. Rather, Morrison applies universally: there is no basis for

a special exception for trade secret actions brought under Section 337. As the

Supreme Court explained:

The results of judicial-speculation-made-law - divining

what Congress would have wanted if it had thought ofthe situation before the court - demonstrate the wisdom

14

of the presumption against extraterritoriality. Rather thanguess anew in each case, we apply the presumption in all

cases, preserving a stable background against which

Congress can legislate with predictable effects.

Morrison, 130 S. Ct. at 2881 (emphasis added).

The Commission claims that TianRui's "proposed interpretation," which it

does not define, would "read Congress' deliberate inclusion of the 'in the

importation' portion out of the statute." Comm'n Br. 25-26. This is not correct.

There is no question that the ITC has in rein jurisdiction over imports, as the

Commission correctly points out (Comm'n Br. 28) and this Court has consistently

affirmed. But the question whether the Commission has the authority to apply

U.S. state law extraterritorially is a question on the merits unrelated to

jurisdiction. 3 The Commission has failed, both in the ID and in its brief to this

Court, to address TianRui's argument that Section 337 does not authorize the

Commission to apply U.S. law extraterritorially to find "unfair acts" based solely

on foreign conduct. The Commission has therefore ignored the fundamental issue

on the merits: whether the presumption against extraterritoriality has been

overcome in this case. See Amgen, Inc. v. Int'l Trade Comm'n, 902 F.2d 1532,

1536 (1990) (issue of jurisdiction is unrelated to whether Complainant can sustain

3 Amsted similarly confuses the Commission's jurisdiction and the question

of statutory authority. See Amsted Br. 30-31.

15

substantive allegations). Jurisdiction over the case based on importation is not

sufficient to allow the Commission to find a violation under Section 337; it must

also have the authority to adjudicate the "unfair act" at issue.

The Commission's failure to grapple with the extraterritorial limitations

imposed by Morrison is particularly apparent in its discussion of the differences

between protection for process patents and trade secrets. See Comm'n Br. 29-31.4

The salient commonality between some trade secrets, as here, and process patents

is that both relate to a means of producing something, rather than to the res itself.

To extend substantive U.S. law to manufacturing processes used abroad to find an

"unfair act" under Section 337 requires express statutory authority.

As discussed at length in TianRui's opening brief, Congress in 1940

expressly created just such an exceptional extraterritorial grant of authority.

Section 1337a was enacted after In re Amtorg Trading Corp., 75 F.2d 826 (CCPA

1935), to allow the Commission to treat the act abroad of process patent

infringement as an "unfair act" under Section 337. S. Rep. No. 1903, 76th Cong.,

3rd Sess., at 1-2 (1940), H.R. Rep. No. 76-1781, at 1 (1940). Congress has not

enacted an equivalent exception for state trade secret law. Consequently, absent

predicate unfair acts in the United States, the Commission has no authority to find

4 Amsted posits a series of nearly identical arguments in its brief. Amsted

Br. 38-41.

16

that the importation of products manufactured overseas using an alleged trade

secret process, as variously defined by the U.S. states, is an "unfair act" within the

meaning of Section 337.

IH. THE COMMISSION ERRONEOUSLY FOUND ADOMESTIC INDUSTRY WHEN AMSTEDADMITTEDLY DOES NOT PRACTICE THEASSERTED TRADE SECRETS IN THE UNITED STATES

Neither the Commission nor Amsted disputes that longstanding agency

interpretations have the "effect of law" when Congress substantially re-enacts the

applicable statutory provision. See IRS v. Noel Estate, 380 U.S. 678, 682 (1965).

While the Commission and Amsted deny the existence of a longstanding agency

interpretation, they fail to identifY even one prior IP-based investigation in which

the Commission found a domestic industry to exist when the Complainant did not

use the asserted IP in the United States.

A. The "Plain Language" of

Section 337 Does Not Resolve the Dispute

It is undisputed that the subsection of Section 337 applicable to this

investigation, 19 U.S.C. § 1337(a)(1)(A)(i), does not define "industry in the United

States" (commonly referred to as "domestic industry"). Both the Commission and

Amsted nevertheless argue for a "plain language" interpretation, emphasizing the

distinctions in the statutory language between subsection 19 U.S.C.

§ 1337(a)(1)(A) governing unfair acts generally and 19 U.S.C. §§ 1337(a)(1)(B)-

17

(E), the subsections specifically applicable to investigations based on certain forms

of federally protected IP (hereinafter referred to as "statutory IP"). Comm'n Br.

34-38; see also Amsted Br. 46-55. The Commission and Amsted are correct in

noting that, with respect to the latter four subsections, the statute explicitly defines

a domestic industry as "relating to the articles protected by [the statutory IP right at

issue]." Comm'n Br. 35 (citing 19 U.S.C. § 1337(a)(2)); see also Amsted Br. 48.

There is no basis, however, for the argument that, by including this explicit

requirement with respect to statutory IP, Congress intended that no such

requirement apply to investigations under the first subsection involving non-

statutory IP.

1. The 1988 Amendments Built on Commission

Precedent and Enacted Discrete Changes

to the Domestic Industry Requirement

Prior to the 1988 amendments, Section 337 did not contain a definition of

the term "industry." See H.R. Rep. No. 100-576, at 634 (1988) (under the heading

"Present law": "[t]here is no specific definition of the term 'industry'"). The

domestic industry requirement, however, had been construed and applied by the

Commission in numerous investigations, which Congress was well aware of when

it enacted the 1988 amendments to Section 337. The legislative history indicates

that the requirement that a domestic industry "relate to" the articles protected by

the statutory IP at issue in newly enacted 19 U.S.C. §§ 1337(a)(2) and (3) was not

18

new but was instead "maintained" from previous practice. S. Rep. No. 100-71,

at 129 (June 11, 1987). Congress simply expanded the definition of "industry" in

19 U.S.C. § 1337(a)(3)(C) to include "substantial investment in [the statutory IP

right's] exploitation, including engineering, research and development, or

licensing," going beyond then-existing Commission precedent. See S. Rep. No.

100-71, at 129; H.R. Rep. No. 100-40 (1987), at 157. The first two factors set

forth in 19 U.S.C. § 1337(a)(3)(A) and (B), "significant investment in plant and

equipment" and "significant employment of labor or capital," were not new. As

recognized by both the Senate Finance Committee and the House Ways and Means

Committee, the original two industry tests had "been relied on in prior Commission

decisions .... " S. Rep. No. 100-71, at 129; H.R. Rep. No. 100-40, at 157.

Contrary to the Commission's argument (Comm'n Br. 37-38), nothing in the

legislative history of the 1988 amendments suggests that Congress intended to

make any further changes to the definition of domestic industry in IP-based

investigations. See H.R. Rep. No. 100-576, at 633-34; see also H.R. Rep: No. 100-

40, at 154-55.

2. The 1988 Amendments Left

the Statute Essentially Unchanged

with Respect to Non-Statutory IP

With respect to investigations based on unfair acts other than infringement

of statutory IP rights, Congress in 1988 simply retained the existing law, enacting

19

current subsection (a)(1)(A) of Section 337 essentially unchanged from the pre-

1988 Section 337(a). Congress' reenactment of pre-1988 Section 337(a)

substantially unchanged in subsection (a)(1)(A) of Section 337 gives "effect of

law" to the Commission's interpretation of the domestic industry requirement under

the pre-1988 law. See Noel Estate, 380 U.S. 678, 682. To suggest otherwise, as

the Commission and Amsted do, is to presume that Congress intended to wipe out

the extensive pre-1988 case law governing non-statutory IP, while providing no

guidance for the future.

Amsted suggests that Congress intended to create two separate, "mutually

exclusive" regimes, one for investigations under subsection (a)(1)(A) and the other

for investigations under subsections (a)(1)(B)-(E). See Amsted Br. 50; see also

Comm'n Br. 37. Following this logic, by which anything explicitly set forth in 19

U.S.C. §§ 1337(a)(2) and (3) is implicitly inapplicable to 19 U.S.C. § 1337(a)(1), a

complainant relying on subsection (a)(1)(A), such as Amsted here, would be barred

from relying on "significant investment in plant and equipment" and "significant

employment of labor or capital" to prove a domestic industry. This would be an

untenable result, as Amsted appears to recognize. See Amsted Br. 50 (providing a

table setting forth alleged differences between investigations under subsections

(a)(1)(A) and (a)(1)(B)-(E), but conspicuously omitting "significant investment in

20:

plant and equipment" and "significant employment of labor or capital" from the

table).

B. The Commission Has Consistently Interpreted

Section 337 to Require Complainants in IP-Based

Investigations to Utilize the Asserted IP in the United States

As set forth in Appellants' initial brief, longstanding Commission precedent

requires the domestic industry in any IP-based investigation - both statutory and

non-statutory IP - to utilize the IP at issue in the United States. See Appellants'

Br. 35-38. Indeed, in the context of trade secret misappropriation, the Commission

has stated unequivocally:

When the unfair acts or methods of competition alleged

under § 337 are based on the misappropriation of trade

secrets, the domestic industry is defined as consisting of

that portion of complainant's domestic operations devoted

to the utilization of the confidential and proprietary

technology at issue which is the target of the unfair acts

or practices.

Certain Processes for the Manufacture of Skinless Sausage Casings & Resulting

Prod., Inv. No. 337-TA-148/169, 1984 WL 273803, Unreviewed ID, at * 120 (Dec.

1984) (emphasis added).

Neither the Commission nor Amsted can point to a single IP-based

investigation in which the Commission found a domestic industry that did not

utilize the asserted IP. Nevertheless, the Commission and Amsted argue that the

Commission applies an unbounded "realities of the marketplace" approach in

2_

defining the domestic industry. Comm'n Br. 44-46; see also Amsted Br. 55-58.

This argument is without merit, as a review of the cases cited by the Commission

and Amsted makes clear.

1. The Commission and Amsted

Miseha racterize Floppy Disk Drives

The Commission and Amsted rely prominently on Certain Floppy Disk

Drives and Components Thereof Inv. No. 337-TA-203, 1985 ITC LEXIS 134

(Sept. 1985), a post-Sausage Casings trade secret-based investigation. See

Comm'n Br. 43-44; Amsted Br. 56-59. That reliance is misplaced. The

Commission and Amsted fail to note that the ALJ's decision in Floppy Disk Drives

explicitly supports TianRui's position that the Commission had an established

practice of requiring complainants in all IP-based investigations to utilize the

asserted IP to establish a domestic industry: "The Commission customarily defines

the domestic industry as the domestic operations of the intellectual property owner

and its licensees devoted to the exploitation of the intellectual property." Floppy

Disk Drives, at *73 (emphasis added).

Moreover, Floppy Disk Drives involved unusual circumstances not present

here, namely, that the asserted unfair acts included not only misappropriation of

trade secrets but also industrial espionage and sabotage, which by their nature

physically prevented the complainant from exploiting the technology at issue in the

United States. See id. at *71-78 (citing evidence showing that "the majority of the

227

drawings [of the technology at issue] were stolen or destroyed and the prototype

deliberately modified to render it useless"). Under these unusual circumstances the

ALJ concluded that the Commission might consider a departure from its

"customary" domestic industry rule and include, within the scope of the domestic

industry, disk drives "functionally comparable to the disk drives that would have

been produced" but for the alleged acts of theft and destruction. Id. at *78.

Finding "substantial factual issues and complicated legal questions that need fuller

development," the ALJ denied summary determination. Id.

Amsted incorrectly states that "[t]he Commission expressly adopted the

ALJ's reasoning" in Floppy Disk Drives regarding the scope of the domestic

industry. Amsted Br. 58; see also Comm'n Br. 43. In fact, the opposite is true: the

Commission merely affirmed the ALJ's denial of summary determination as to the

existence of a domestic industry. Floppy Disk Drives, at *2, 8. The Commission

never reached the merits of the domestic industry issue in Floppy Disk Drives,

because it upheld the ALJ's finding of no violation on other grounds - namely, the

lack of a causal nexus between the accused imports and any injury to complainant.

Id. at *2-4, 153.

23:

2. There Is No Commission Precedent

Departing from the Rule That

Complainants in All IP-Based InvestigationsMust Use the Asserted IP in the United States

The Commission and Amsted both rely on Certain Apparatus for the

Continuous Production of Copper Rod, Inv. No. 337-TA-52, 1979 ITC LEXIS 99

(Nov. 1979), for the proposition that the Commission examines "the realities of the

marketplace" to define the domestic industry, without regard to whether the

Complainant practices the asserted IP in the United States. Comm'n Br. 43-44;

Amsted Br. 63-65. This argument mischaracterizes the Commission's use of the

"realities of the marketplace" analysis in Copper Rod, which it applied to

determine how many domestic industries existed, not whether one existed at all.

In Copper Rod, which involved both patent infringement and trade secret

misappropriation causes of action, the respondents contended that there were three

distinct domestic industries - one devoted to "continuous copper casting mill

apparatus," one devoted to "continuous cast copper rod production," and one

devoted to "spare parts for continuous casting mill apparatus." Copper Rod,

at *94. The Commission determined, in part because "[t]he apparatus and method

patents and the 14 trade secrets at issue are intimately related to the sale of the

complete system," that segmenting the industry into three, as argued by

respondents, would "ignore realities of the market for continuous copper rod

production." Id. at *94-95 (emphasis added). See also Certain Woodworking

24-

Machines, Inv. No. 337-TA-174, 1987 ITC LEXIS 226 (May 1987), at '201 n.172

("The Copper Rod 'commercial realities' test referred to the intrinsic

interrelationships between certain of the design and production patents - and, ergo

the potentially separate industries - involved in that investigation. Since all were

viewed as part of the ultimate production and sales effort relating to one product,

the Commission found that the sepai'ate patents constituted one industry."). This

can hardly be viewed as a departure from the Commission's traditional approach

requiring use of the asserted IP by the domestic industry.

The Commission's reliance on Certain Luggage Products, Inv. No. 337-TA-

243, 1987 ITC LEXIS 212 (June 1987), is similarly misplaced. See Comm'n

Br. 45 (citing Luggage Products for the proposition that "the Commission does not

adhere to any rigid formula in determining the scope of the domestic industry, as it

is not precisely defined in the statute, but will examine each case in light of the

realities of the marketplace"). In Luggage Products, which involved allegations of

trademark infringement, the ID states unequivocally that "[i]n section 337

investigations when trademark infringement is alleged as the unfair act, the

Commission has defined the domestic industry as that portion of the complainant's

facilities devoted to the exploitation of the trademark rights at issue." Luggage

Prods., at "151. Like in Copper Rod, the Commission in Luggage Products did

not use the "realities of the marketplace" approach to depart from the principle that

25

the domestic industry must use the asserted intellectual property, but rather to

answer "the question of whether it is appropriate to find a single domestic industry,

which encompasses all of the trademark rights in issue, or three narrowly defined

domestic industries [based on each of the three asserted trademarks]." Id. at * 152-

53.

Copper Rod and Luggage Products are therefore consistent with and

underscore the rule articulated in Sausage Casings, supra, and provide no support

whatsoever for the view that an unbounded "realities of the marketplace" analysis

had ever previously been used by the Commission to determine whether a

domestic industry exists in the United States.

q

3. The Investigations Cited Do Not Support

the Commission's Departure from theRequirement That Complainants in

IP-Based Investigations Use the Asserted IP

The Commission and Amsted argue that the Commission's pre-1988

approach was to define the domestic industry in terms of the "targeted" industry.

Comm'n Br. 45-46; Amsted Br. 59-67. This is incorrect; two of the investigations

cited, Certain Nut Jewelry & Parts Thereof, Inv. No. 337-TA-229, 1986 LEXIS

233 (Nov. 1986) and Certain Woodworking Machines, supra, involved non-IP

investigations. These cases, therefore, do not provide support for the use of a

"targeted industry" approach with respect to an IP-based investigation. The

Commission's and Amsted's attempt to equate this trade secret misappropriation

26

investigation with the non-IP investigations in Nut Jewelry and Woodworking

Machines must be rejected.

Nut Jewelry involved four alleged unfair acts (false advertising, failure to

mark country of origin, false designation of origin and false representation), none

of which involved an IP right, federally registered or otherwise. See Nut Jewelry,

at *40; see also id. at *110 ("This investigation does not involve intellectual

property rights."). Nevertheless, in an attempt to connect Nut Jewelry to the instant

case, both the Commission and Amsted inaccurately characterize Nut Jewelry as

involving "non-statutory IP." Comm'n Br. 48, Amsted Br. 59-60. Indeed, without

citation to the Nut Jewelry ID, the Commission purports to quote the ALJ in Nut

Jewelry as stating that the case "involved 'non-statutory IP rights.'" Comm'n

Br. 48. Appellants have found no such statement in the Nut Jewelry ID. The

Commission further mischaracterizes Nut Jewelry by stating: "[o]n review, the

Commission agreed [with the ALJ]." Comm'n Br. 48. In fact, however, the

Commission stated that "[w]e disagree with the way the ALJ has defined the

domestic industry." Nut Jewelry, at *63. Nut Jewelry simply has no applicability

here.

Woodworking Machines involved both IP and non-IP causes of action.

Contrary to the Commission's argument, Woodworking Machines affirms that

exploitation of intellectual property rights (including both federally registered IP

27

such as patents and non-federally registered IP such as common law trademarks

and trade secrets) is central to defining a domestic industry in IP-based

investigations:

In previous investigations involving patents ortrademarks, the relevant domestic industry has beendefined in terms of the exploitation of the patents ortrademarks in controversy. In investigations involvingother unfair methods of competition such as falseadvertising or passing off, the Commission has definedthe domestic industry in terms of complainant's U.S.facilities devoted to the production and sale of the articlethat was the subject of the unfair act (e.g., falseadvertising or passing off).

Woodworking Maehs., at "195. See also id. at *200 ("[W]hen several industries

can be defined on the basis of the exploitation of various intellectual property

rights and there is considerable overlap with respect to the products associated with

the industries defined in terms of these intellectual property rights, it may be

appropriate to define the industry in terms of the commonly shared property right

that extends to a grouping of products."); Certain Hard Sided Molded Luggage

Cases, Inv. No. 337-TA-262, 1987 ITC LEXIS 30, Unreviewed ID, at "133 (Nov.

4, 1987) (stating, in a case involving common law trademark infringement, false

representation, common law passing off, and common law unfair competition,

"[t]he domestic industry in intellectual property based § 337 investigations is

composed of the domestic production related to exploitation of the intellectual

property in issue by the intellectual property owner and its licensees").

28

Certain Electric Power Tools, Battery Cartridges, and Battery Chargers,

Inv. No. 337-TA-284, 1991 ITC LEXIS 909 (June 1991), and Certain Miniature

Plug-ln Blade Fuses, Inv. No. 337-TA-114, 1983 ITC LEXIS 196 (Jan. 1983),

cited by Amsted, similarly provide no support for the argument that the domestic

industry is defined "without regard to whether the complainant utilized, practiced

or exploited the non-statutory IP." Amsted Br. 59-61. To the contrary, the ID in

Electric Power Tools explicitly states: "The scope of the domestic industry or

industries is defined in terms of the production-related activities that exploit the

intellectual property rights in issue." Elec. Power Tools, at *316. In Blade Fuses,

the Commission defined the domestic industry in terms of facilities devoted to

articles covered by the asserted patents (thereby reversing the ALJ's decision to

define separate industries for each asserted unfair practice). Blade Fuses, at *51-

52. Nothing in either Electric Power Tools or Blade Fuses even remotely suggests

that a domestic industry can include activities that do not exploit the asserted IP

rights.

o lnkMarkers Does Not Support the Commission's

Argument That Domestic Use of Asserted IP

Is Required Only with Respect to Statutory IP Rights

Amsted argues that the ALJ in Certain Ink Markers and Packaging Thereof,

Inv. No. 337-TA-522, 2007 ITC LEXIS 1450 (Dec. 2007), which involved both

registered trademarks and unregistered trade dress, "expressly declined to conduct

29

a technical prong analysis" for the trade dress cause of action, purportedly

confirming Amsted's view that no utilization of the asserted IP is required in

investigations based on subsection (a)(1)(A) of Section 337. See Amsted Br. 65;

see also Comm'n Br. 47 (arguing that the trade dress claims do not require

exploitation). In fact, the ALJ in Ink Markers, while not literally using the words

"technical prong analysis," did analyze complainant's domestic products to

determine if they practiced or utilized the non-federally registered IP at issue. See

Ink Markers, at '81 (determining the scope of the domestic industry for the trade

dress claims by conducting a "visual inspection" of the markers in question and

eliminating one category of marker that did not embody the trade dress at issue).

Contrary to Amsted's and the Commission's argument, Ink Markers, therefore,

confirms that "utilization" of the IP has remained the Commission's standard in

non-statutory IP investigations subsequent to the 1988 amendments to Section 337.

30

IV. CONCLUSION

For the reasons set forth above, Appellants respectfully request that this

Court reverse the Commission's Determination of Violation

exclusion and cease and desist orders issued in this investigation.

and vacate the

Dated: November 29, 2010 Respectfully submitted,

ADDUCI, I_4_ASTRIANI _; SCHAUMBERG, L.L.P.

1200 17 th Street, N.W., 5th Floor

Washington, DC 20036

Telephone: (202) 467-6300

Ruixue Ran

Jun He Law Offices

China Resources Building

8 Jianguomenbei Avenue

Beijing 100005 P. R. China

Telephone: 86-10-85191300

Counsel for Appellants TianRui Group

Company Limited, TianRui Group Foundry

Company Limited and Barber TianRui Railway

Supply LLC

31

Joel M. FreedMCDERMOTTWILL & EMERYLLP600 13thStreet N.W.

Washington DC 20005Telephone: 202-756-8029

Counsel for Appellants Standard Car Truck

Company Inc. and Barber TianRui Railway

Supply LLC

TIAN700910-2

32'

CERTIFICATE OF SERVICE

I hereby certify that two copies of the APPELLANTS' REPLY BRIEF

ON APPEAL was served as indicated, to those listed below, this 29 th day ofNovember 2010:

James M. Lyons, Esq.General Counsel

Office of the General Counsel

U.S. INTERNATIONAL TRADE COMMISSION

500 E Street, S.W., Room 707-E

Washington, DC 20436

(VIA FEDERAL EXPRESS)

COUNSEL FOR APPELLEE AMSTED INDUSTRIES INCORPORATED

Gregory J. Vogler, Esq.

MCANDREWS, HELD _, _[ALLOY, LTD.500 West Madison Street, 34 th Floor

Chicago, Illinois 60661

(VIA FEDE_a, Exl'm_ss)

Lyle Vander Schaaf, Esq.BRINKS HOFER GILSON & LIONESuite 675

1850 K Street, NW

Washington, DC 20006-2219

(VIA FEDERAL EXPRESS)

ADDUCI,_ASTRIXNI &SCHAUMB_RG, L.L.P.

1200 Seventeenth Street, N.W., Fifth Floor

Washington, DC 20036

TIAN 100010-2

Form19

FORM19. CertificateofComplianceWith Rule32(a)

CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION,

TYPEFACE REQUIREMENTS, AND TYPE STYLE REQUIREMENTS

1. This brief complies with the type-volume limitation of Federal Rule of

Appellate Procedure 32(a)(7)(B) or Federal Rule orAppellate Procedure 28.1(e).

[] The brief contains [ 6,7ao ] words, excluding the parts of

the brief exempted by Federal P,ule of Appellate Procedure 32(a)(7)([3)(iii),

or

[] The brief uses a monospaced typeface and contains [state the number o: ]

lines of text, excluding the parts of the brief exempted by Federal Rule

of Appellate l)rocedure 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Federal Rule of

Appellale Procedure 32(a)(5) or Federal Rule of Appellate Procedure 28. I(e) and the

type style requirements of Federal Rule el'Appellate Procedure 32(a)(6).

[] The brief has been prepared in a proportionally spaced typeface using

[ Microsoft Word 2000 ] in

[ 14pt Times New Roman ], or

[] The brief has been prepared in a monospaced typeface using

[ state name and version of word processing program ] with [[ state number of characters per inch and name of type style ],

"°rn°y)

(Name of Attorney)

Appellants(State whether representing appellant, appellee, etc.)

November 29, 2010(Date)

142