Jan 10th, 2024

Trade Updates for Week of January 10, 2024


Before the Court in CVB, Inc. v. United States and Brooklyn Bedding, LLC., et al., Court No. 21-288, Slip Op. 24-02 (January 8, 2024) was a motion to retract the Court’s public slip opinion and accord confidential treatment to alleged business proprietary information contained therein. This motion related to CVB, Inc. v. United States, 47 CIT _, 2023 Ct. Intl. Trade LEXIS 189, Slip Op. 2023-184, in which the court affirmed the United States International Trade Commission’s affirmative injury finding in its investigation of mattresses from Cambodia, China, Indonesia, Malaysia, Serbia, Thailand, Turkey, and Vietnam, which contained unredacted business proprietary information. For the following reasons, the Court denied the motion.

The Commission notified the Court it believed the public opinion contained unredacted business proprietary information and filed this joint motion which the Court denied. The Court analyzed the motion according to the USCIT Rule 5(g) standard which provides that “[a]ny paper containing confidential or business proprietary information must identify that information by enclosing it in brackets.” The rule serves to (1) protect confidential and business proprietary information by clearly identifying it for the parties and the Court, (2) promote transparency and public access to judicial records by requiring parties to designate precisely what information is confidential, and (3) promotes judicial efficiency by providing the Court with one record it examines to adjudicate the case. Bracketing, the Court said, allows it to look at one place to see the entire record the agency considered and know what portion of that record the parties claim is confidential without having to move back and forth between different sources. Furthermore, since the Court’s rules do not define what constitutes confidential or business proprietary information, the Court mentioned 19 U.S.C. § 1677f(b), which governs the Commission’s treatment of business proprietary information. Information submitted to the Commission “which is designated as proprietary by the person submitting the information shall not be disclosed to any person without the consent of the person submitting the information[.]” 19 U.S.C. §1677f(b)(1)(A). Information is neither confidential nor business proprietary if it is publicly available. See Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356, 2363 (2019) (defining confidential information as information that is “private” or “secret”) (citing Webster’s Seventh New Collegiate Dictionary 174 (1963)); see also 19 U.S.C. § 1677f(b)(2) (the Commission can determine a party’s designation of information as proprietary is unwarranted based on the information’s “nature and extent … or its availability from public sources”). Cf. Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1002 (1984) (“Information that is public knowledge … cannot be a trade secret.”) (internal citations omitted). Merely claiming information is confidential does not make it so a party cannot designate everything confidential. The Court said that even when the parties agree to secrecy, courts are “duty-bound to protect public access to judicial proceedings and records.” Binh Hoa Le v. Exeter Fin. Corp., 990 F.3d 410, 417 (5th Cir. 2021). Where the parties lack any incentive to defend the public’s right of access, the Court must balance that right with the need for confidentiality. Id. at 419. Transparency — not secrecy — is the default rule. Id. at 417

In this case, the objected-to information fell into two broad categories: company names and numerical approximations. On the first category, the Court said that this information is not confidential because the Commission failed to abide by USCIT Rule 5(g) when designating information as confidential or business proprietary. On the second category, the Court said that Motion fails because the information is publicly available, the Court’s approximations do not “closely track” the Commission’s figures as the Motion to Retract suggests, or both. According to the Court, the Motion’s approach to redaction demonstrates the importance of properly designating information as confidential under USCIT Rule 5(g) and maintaining a consistent approach to what constitutes confidential or business proprietary information and suggested that in order for the Commission to encourage voluntary cooperation from companies and protect allegedly confidential information, it must abide by the appropriate legal standard found in the USCIT rules.