Acciai Speciali Terni, S.P.A. v. U.S.

• Decision Date: 06 August 2002
• Docket Number: No. 01-00051.,SLIP OP. 02-82.,01-00051.
• Citation: 217 F.Supp.2d 1345
• Parties: ACCIAI SPECIALI TERNI S.p.A., et al., Plaintiffs, v. UNITED STATES of America, Defendant, and Allegheny Ludlum Corp., et al., Defendant-Intervenors.
• Court: U.S. Court of International Trade

Page 1345

217 F.Supp.2d 1345

ACCIAI SPECIALI TERNI S.p.A., et al., Plaintiffs, v. UNITED STATES of America, Defendant, and Allegheny Ludlum Corp., et al., Defendant-Intervenors.

SLIP OP. 02-82.

No. 01-00051.

United States Court of International Trade.

August 6, 2002.

Hogan & Hartson L.L.P., Washington, DC (Lewis E. Leibowitz, Lynn G. Kamarck, H. Deen Kaplan) for Plaintiff.

Robert D. McCallum, Jr., Assistant Attorney General; David M. Cohen, Director, Commercial Litigation Branch, Civil Division, United States Department of Justice; Lucius B. Lau, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice; Brent M. McBurney, Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, Michele D. Lynch, Attorney, Office of the Chief Counsel for Import Administration, United States Department of Commerce, Of Counsel, for Defendant.

Collier Shannon Scott, PLLC, Washington, DC (Eric R. McClafferty, Michael J. Coursey, Kathleen W. Cannon, David A. Hartquist) for Defendant-Intervenors.

Dewey Ballantine L.L.P., Washington, DC (John A. Ragosta, John R. Magnus, Hui Yu) for Amici Curiae.

OPINION

CARMAN, Chief Judge.

In Acciali Speciali Terni, S.p.A. v. United States, 206 F.Supp.2d 1344 (CIT 2002), this Court remanded Grain-Oriented Electrical Steel From Italy; Final Results of Countervailing Duty Administrative Review, 66 Fed.Reg. 2,885 (Jan. 12, 2001) (Final Results) to the Department of Commerce ("Commerce" or "the Department") to explain whether the Department had determined that the private holding company KAI, in a capacity as a separate purchaser, became legally responsible for all Acciai Speciali Terni, S.p.A.'s ("AST") assets and liabilities upon purchasing AST. Alternatively, Commerce was to explain whether AST, after its sale to KAI ("Post-Sale AST"), continued to have responsibility for the assets and liabilities attributed to AST before the sale ("Pre-Sale AST").

On June 24, 2002, Commerce filed with this Court Results of Redetermination on Remand Pursuant to Acciai Speciali Terni S.p.A., et al., v. United States, Slip. Op. 02-51 (Ct. Int'l Trade, June 4, 2002) (Remand Redetermination). In the Remand Redetermination, Commerce states that upon review of the administrative record, Commerce determined that Post-Sale AST "continued to have responsibility for all of pre-sale AST's assets and liabilities." Remand Redetermination at 1. In support of this determination, Commerce first notes "there is nothing in the record to suggest that, as a result of the privatization, AST relinquished its direct, legal ownership and control over any of its assets. Likewise, there is nothing in the record to suggest that, as a result of privatization, AST relinquished responsibility for any of the debt obligations of pre-sale AST." Id. at 3.

Commerce next points to two pieces of affirmative record evidence that support its "conclusion that there was complete continuity of financial position between pre- and post-sale AST": first, a comparison of AST's financial statements as of December 31, 1993 with AST's financial statements as of December 31, 1994; and second, the text of the Purchase Agreement, signed by KAI, making clear that AST sold shares to KAI but nowhere suggesting AST transferred assets or liabilities to KAI. Id. at 3-4.

Finally, Commerce remarks its finding is consistent with the primary reason many companies incorporate-to shield owners of company shares (here KAI) from liability for the company (AST). Id. at 4-5. In response to AST's assertion that, according to the Italian Civil Code, a 100 percent sole shareholder is fully and solely responsible for a company's assets and liabilities, Commerce states it has found no record evidence to support this assertion and that even if KAI assumed some residual or contingent responsibility for AST's debts, privatized AST could continue to be found to have full and direct responsibility for its debts. Id. at 5.

This Court will sustain the Remand Determination unless it...