U.S. International Trade Commission (ITC) Administrative Law
Judge Thomas B. Pender (ALJ) recently imposed sanctions on Apple
due to the intentional misrepresentations of fact in the opening
statement and briefing.1 This sua sponte ruling
indicates an increased willingness by the ITC to police alleged
misconduct, and may potentially embolden litigants to independently
The ALJ characterized Apple's attempt to "blame the
misrepresentation" on a combination of a miscommunication with
an associate and the press of litigation as "the legal
equivalent to 'the dog ate my homework
excuse.'"2 The ALJ expressly concluded that
"without sufficient or credible reason or excuse, [Apple]
misrepresented the facts and its intentions to Complainant and me
and therefore caused additional confusion, expenditures, delay, and
increased the potential for injustice."3
The provision invoked by the ALJ, 19 C.F.R. § 210.4, is the
ITC analog to Fed. R. Civ. P. 11. It was only after the ALJ ordered
Apple to show cause why it should not be sanctioned4 and
entertained briefing that he made his findings. The sanction
imposed was reimbursement to the opposing party of all legal fees
incurred during a certain time period to deal with the
representation that was found to be false.5
Historically, ALJs have shown little appetite for imposing
sanctions such as these. The last time that sanctions were imposed
sua sponte by an ITC ALJ for alleged misrepresentations
was in 2005.6 The pace of ITC proceedings does not
afford the tribunal or parties time for satellite proceedings. The
ALJ's decision to expend scarce judicial resources7
in this undertaking, thus, is particularly noteworthy.
Apple will be entitled to Commission review of the ALJ's
imposition of sanctions, and may expect some relief, at least in
the amount of damages awarded. In its review of the last sua
sponte imposition of sanctions by an ALJ, the Commission held
that the monetary penalty must be only so much as is necessary to
deter future misconduct, and must be paid to the U.S. Treasury (not
the opposing party).8
Opening statements at ITC hearings are unlike those before
juries in district courts. Not every ALJ welcomes an opening
statement since the ALJ is already familiar with the case from the
required extensive pre-hearing briefing. Accordingly, opening
statements at the ITC rarely resemble their district court
counterparts. A decision sanctioning a party for alleged
misrepresentations of fact during an opening statement is a
reminder to ITC counsel that all oral representations will be held
to as high a degree of veracity in that forum as would any
statement before a jury in a district court, irrespective of the
ultimate outcome in this case
If you have any questions about this Alert, please
contact Rodney R. Sweetland III, any member of the ITC Section 337
Litigation Practice Group or any attorney in the firm with whom you
are in regular contact.
1. Certain Wireless Communication Devices, Portable
Music and Data Processing Devices, Computers and Components
Thereof, Inv. No. 337-TA-745, Order No. 34 (April
2. Id. at 4.
4. Certain Wireless Communication Devices, Portable
Music and Data Processing Devices, Computers and Components
Thereof, Inv. No. 337-TA-745, Order No. 32 (December 15,
5. Order No. 35 at 5–6.
6. Certain Point of Sale Terminals and Components
Thereof, Inv. No. 337-TA-524, Order No. 48 (June 7,
7. The ITC's caseload is at historically high
8. Certain Point of Sale Terminals and Components
Thereof, Inv. No. 337-TA-524, Comm'n Op. at
20–22; 26 (February 28, 2006).
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