Certain Cigarettes and Packaging Thereof; Notice of Commission Determination To Review and Affirm an Initial Determination Terminating the Investigation as to Respondent Allstate Cigarette Distributors, Inc. on the Basis of a Consent Order; Issuance of Consent Order

AGENCY:

U.S. International Trade Commission.

ACTION:

Notice.

SUMMARY:

Notice is hereby given that the U.S. International Trade Commission has determined to review and affirm an initial determination (“ID”) (Order No. 30) issued by the presiding administrative law judge (“ALJ”) terminating the above-referenced investigation as to respondent Allstate Cigarette Distributors, Inc. (“Allstate”) on the basis of a consent order; to grant complainant Brown & William Tobacco Corp.'s (“complainant”) motion for leave to reply to Allstate's motion to strike the petition for review; and to deny Allstate's motion to strike the petition for review.

FOR FURTHER INFORMATION CONTACT:

Shara L. Aranoff, Esq., Office of the General Counsel, U.S. International Trade Commission, telephone 202-205-3090, e-mail saranoff@usitc.gov.

SUPPLEMENTARY INFORMATION:

The Commission instituted this trademark-based investigation on September 16, 1999, based on a complaint filed by Brown & Williamson Tobacco Corp. (“complainant”) alleging violations of section 337 by reason of: (a) Infringement of 11 federally registered U.S. trademarks; (b) unfair competition under the Lanham Act; (c) improper importation of products under the Lanham Act; and (d) dilution of the registered trademarks. On January 7, 2000, Allstate filed a motion to terminate the investigation based on a proposed consent order. Complainant opposed the motion and the Commission investigative attorney (“IA”) supported the motion. On January 20, 2000, the ALJ issued the subject ID granting the motion to terminate the investigation as to Allstate by consent order. On January 27, 2000, complainant timely moved for a two-day extension of time within which to file its petition for review. The Chairman granted the request pursuant to Commission rule 210.14(b) (19 CFR 210.14(b)). On January 31, 2000, complainant timely filed a petition for review. On February 7, 2000, Allstate and the IA filed timely responses to the petition for review, and Allstate filed a motion to strike the petition for review. On February 8, 2000, complainant filed a motion for leave to respond to the motion to strike and an opposition to the motion.

Having examined the record in this investigation, the final ID, the petition for review, and the responses thereto, the Commission has determined to review the ID, because it raises an issue of Commission policy. Specifically, the Commission has considered whether it is appropriate, as a matter of Commission policy, to grant a motion to terminate based on a consent order, over the objection of the complainant, in the circumstances of this investigation.

The Commission's rules no longer provide that a motion to terminate an investigation based on a consent order must be a joint motion of the respondent(s) and the complainant(s). However, there may be circumstances where granting a consent order motion over a complainant's objection may be inappropriate as a matter of policy. Such circumstances may include, for example, where granting a consent order and terminating an investigation as to a respondent would deprive the complainant of the opportunity to obtain a general exclusion order. Another circumstance may be where the respondent has failed to provide sufficient discovery such that a consent order may undermine the complainant's ability to obtain a general exclusion order. These circumstances are not presented by this ID. We agree with the administrative law judge's conclusion that this motion does not present a situation where the movant's discovery conduct undermines complainant's ability to seek a general exclusion order, and there is no indication that complainant would be deprived of its opportunity to pursue a general exclusion order given the particular circumstances of the participation of the intervener and the remaining respondents in this investigation. Accordingly, the Commission has determined to affirm the ID.

This action is taken under the authority of section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) and section 210.45 of the Commission's Rules of Practice and Procedure (19 CFR 210.45).

Copies of the public versions of Order No. 30 and all other nonconfidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone 202-205-2000. Hearing-impaired persons are advised that information can be obtained by contacting the Commission's TDD terminal on 202-205-1810. General information concerning the Commission may also be obtained by accessing its Internet server (http://www.usitc.gov).