Sanction for Breaches of Commission Protective Order

AGENCY:

International Trade Commission.

ACTION:

Sanction for breaches of Commission protective order.

SUMMARY:

Notice is hereby given of the sanction imposed by the Commission for breaches of the administrative protective order (“APO”) issued in Crawfish Tail Meat From China, Inv. No. 731-TA-752 (Final). The Commission found that Steven B. Lehat, Esq., and Surjit P. Soni, Esq., breached the APO by (1) delegating primary responsibility for APO compliance to a junior attorney and then failing to provide appropriate supervision of that attorney, which resulted in two APO breaches, (2) repeatedly failing to remedy obvious flaws in their firm's procedures for protecting business proprietary information (“BPI”) released to the firm under APO, and (3) failing to certify to the return or destruction of the BPI obtained under the APO. As a sanction, the Commission is issuing this public reprimand and barring them from access to BPI for a period of six months from the date of publication of this notice.

FOR FURTHER INFORMATION CONTACT:

Carol McCue Verratti, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone 202-205-3088. Hearing impaired individuals are advised that information on this matter can be obtained by contacting the Commission's TDD terminal at 202-205-1810. General information concerning the Commission can also be obtained by accessing its Internet server ( http://www.usitc.gov ).

SUPPLEMENTARY INFORMATION:

In connection with the Crawfish investigation, Messrs. Lehat, Soni, and several other attorneys filed applications for APOs with the Commission. In the applications, they swore (i) not to disclose without written permission any of the information obtained under the APO except to certain enumerated categories of approved persons, (ii) to serve all materials containing BPI disclosed under the APO as directed by the Secretary, and (iii) to otherwise comply with the terms of the APO and the Commission's regulations regarding access to BPI. They also acknowledged in the APO that violation of the APO may subject them, and their firm, to debarment from practice before the Commission, referral to the U.S. Attorney or appropriate professional association, or “such other administrative sanctions determined to be appropriate * * * .” The Commission granted their applications.

The firm had little experience with practice before the Commission. Early in the investigation, one of the firm's attorneys breached the APO by releasing BPI obtained from the Commission to the Commerce Department. Commerce personnel were not authorized to have access to such materials under the Commission APO. As a result, the firm decided to place Mr. Soni and Mr. Lehat in charge of the investigation. They delegated primary responsibility for APO compliance to a junior attorney. Mr. Soni and Mr. Lehat each deny that they had responsibility for supervising the junior attorney.

After finalizing the prehearing brief, the junior attorney mistakenly served it on individuals who were not subject to the APO. Those copies of the brief were retrieved before any unauthorized person saw the BPI. The junior attorney was admonished to be more careful, but the firm did not make any additional effective changes in its procedures for protecting BPI from public release. In finalizing the public version of the post-hearing brief, the junior attorney failed to redact BPI from one page. Again, copies of the erroneous public version were retrieved before any unauthorized person saw the BPI. In both instances, the breaches were inadvertent and the attorneys made prompt efforts to prevent the dissemination of BPI to the public.

Both Mr. Soni and Mr. Lehat argued that they should bear limited blame for the breaches because they either did not supervise the junior attorney's compliance with APO compliance or were not present during the finalization of the briefs. This argument evinces a failure to understand that their noninvolvement is the problem, not an exculpation. By remaining removed, they effectively left the junior attorney with the ultimate responsibility for protecting BPI. Such a delegation might be reasonable if made to a junior attorney who had extensive experience with Commission practice or to a senior attorney who had a longer experience with the general practice of law, but the junior attorney in this case had neither.

Therefore, the Commission found that Mr. Soni and Mr. Lehat breached their obligation to take reasonable steps to prevent the release of BPI at the time of the prehearing brief. They committed a second, more egregious breach in continuing to allow the junior attorney to operate unsupervised in the preparation of the post-hearing brief when they knew that the junior attorney's inexperience had already resulted in one breach. They committed an additional breach in failing to remedy the problems with the firm's APO compliance procedures that were exposed by the earlier breaches. Finally, Mr. Soni and Mr. Lehat again breached the APO by failing to certify to the return or destruction of the BPI obtained under the APO. This breach came about, in part, by the reliance on the same inexperienced junior attorney to prepare and transmit the certifications without appropriate supervision.

The breaches outlined above show a serious disregard for the protection of BPI that “rise[s] to the level of willful misbehavior or gross negligence characteristic of investigations where the Commission has issued public letters of reprimand.” Summary of Commission Practice Relating to Administrative Protective Orders, 62 FR 13164, 13167 (Case 8). The Commission did not place great weight on the fact that none of the breaches resulted in a widespread dissemination of sensitive information, since it viewed that circumstance as purely fortuitous. See Investigations Relating to Potential Breaches of Administrative Protective Orders, Sanctions Imposed for Actual Violations, 56 FR 4846, 4849 (Case 5).

In light of the foregoing, the Commission determined to issue Mr. Lehat and Mr. Soni this public reprimand and to bar them from access to BPI for six months, starting with date of the publication of this notice in the Federal Register. In addition, the Commission will require that the next application, if any, that Mr. Lehat or Mr. Soni files with the Commission for access to materials released under APO must be accompanied by a detailed description of the procedures of his firm for protecting APO materials.

Steven B. Lehat and Surjit P. Soni are reprimanded for (1) delegating primary responsibility for APO compliance to a junior attorney and then failing to provide appropriate supervision of that attorney, which resulted in two APO breaches, (2) failing to remedy obvious flaws in procedures for protecting BPI released to the firm under APO, and (3) failing to certify to the return or destruction of the BPI obtained under the APO. They are also barred from access to BPI for six months, starting with the date of publication of this notice in the Federal Register.

The authority for this action is conferred by section 777(c)(1)(B) of the Tariff Act of 1930 (19 U.S.C. 1677f(c)(1)(B)) and by section 207.7(d) of the Commission's Rules of Practice and Procedure (19 CFR 207.7(d)).