UNITED STATES COURT OF INTERNATIONAL TRADE

Slip Op. 25-77

In Toyo Kohan Co., Ltd. v. United States, Court No. 24-00261. Slip Op. 25-77, dated June 17, 2022, the Court of International Trade considered whether to grant plaintiff’s motion to amend its complaint. In December 2024, plaintiff Toyo Kohan filed a complaint to contest Commerce’s final results of its antidumping duty administrative review of diffusion-annealed nickel-plate flat-rolled steel from Japan, from the period of May 1, 2022, through April 30, 2023.Toyo Kohan supported its motion to amend, citing an April 2025 case decided in the United States Court of Appeals for the Federal Circuit, Marmen Inc. v. United States, 134 F.4th 1334 (Fed. Cir. 2025) (Marmen), which concluded that “Commerce unreasonably relied on the Cohen’s d test” when assessing differing prices and underlying data. Toyo Kohan then filed its motion to amend its complaint “to include an argument that Commerce unreasonably applied the Cohen’s d test to groups of sales data that did not meet the assumptions of normality and equal variances on which the test is based.” Toyo Kohan Mot. At 8. Toyo Kohan asserted that the Marmen case and the subsequent case, Stupp Corp. v. United States, 2025 WL 1178392 (Fed. Cir. Apr. 23, 2025) (Stupp), “represent[ed] a fundamental shift in controlling law that directly forecloses Commerce’s prior use of the Cohen’s d methodology and that, accordingly, a pre-Marmen or Stupp challenge would have been futile.”

Although the government responded by saying that the fact that the argument was not exhausted at the agency level precluded Toyo Kohan from being eligible to amend its complaint to consider the decisions, the Court held in favor of plaintiff Toyo Kohan and granted its motion to amend its complaint. The Court reasoned that, despite the lack or argument exhaustion at the agency level, “the Federal Circuit’s decision in Marmen fundamentally shifted the legal standard controlling Commerce’s application of the Cohen’s d test.” Citing USCIT Rule 15(a)(2), the Court affirmed that “justice so requires” Toyo Kohan to be allowed to amend its complaint to address the fundamental shift in the legal standard. Accordingly, the Court granted the motion to amend. Slip Op. 25-77, authored by Judge Restani, is significant because it affirms the Court’s power to grant a motion despite lack of agency level exhaustion to recognize fundamental shifts in legal jurisprudence and standards.