U.S. Intern. Trade Com'n v. Asat, Inc.

• Decision Date: 01 December 2004
• Docket Number: No. MISC.04-0395(PLF).,MISC.04-0395(PLF).
• Citation: 355 F.Supp.2d 67
• Parties: UNITED STATES INTERNATIONAL TRADE COMMISSION, Petitioner, v. ASAT, INC., Respondent.
• Court: U.S. District Court — District of Columbia

Page 67

355 F.Supp.2d 67

UNITED STATES INTERNATIONAL TRADE COMMISSION, Petitioner, v. ASAT, INC., Respondent.

No. MISC.04-0395(PLF).

United States District Court, District of Columbia.

December 1, 2004.

Wayne Walker Herrington, U.S. International Trade Commission, Office of the General Counsel, Washington, DC, for Petitioner.

Jonathan G. Graves, Cooley Godward LLP, Reston, VA, for Respondent.

MEMORANDUM OPINION AND ORDER

PAUL L. FRIEDMAN, District Judge.

Before the Court is a petition by the United States International Trade Commission ("ITC") for an order compelling respondent ASAT, Inc., to comply with an administrative subpoena issued by the ITC on February 11, 2004. Because the Court concludes that it has personal jurisdiction over respondent, and because none of respondent's substantive challenges to the administrative subpoena fall within this Court's limited scope of review, the Court will grant the ITC's petition.

I. BACKGROUND

The subpoena under consideration was issued in the course of the ITC's administrative investigation of the alleged importation of products infringing on a U.S. patent, in violation of Section 337 of the Tariff Act of 1930, 19 U.S.C. § 1337. ASAT, Inc., is not a party to the complaint that precipitated the investigation; it or its related companies, ASAT Limited (a Hong Kong manufacturer) and ASAT Holdings (a Cayman Islands holding company), however, are in possession of information relevant to defenses likely to be raised in any administrative prosecution for violations of the Tariff Act.¹

At the request of Carsem Semiconductor and Carsem, Inc. (collectively, "Carsem"), the subjects of the ITC's investigation, the administrative law judge handling the investigation issued subpoenas duces tecum and ad testificandum to ASAT, Inc., ASAT Limited, and ASAT Holdings (collectively, "ASAT") on February 11, 2004. On March 19, 2004, ASAT moved before the ALJ to quash the subpoenas. Finding process to have been served improperly on ASAT Limited and ASAT Holdings, the ALJ quashed the subpoenas as to those companies. The ALJ also found, however, that ASAT, Inc. has control over the documents in possession of the related corporate entities, and ordered ASAT, Inc. to produce most of the requested discovery, including documents from ASAT Limited and ASAT Holdings. See Petition for an Order to Enforce Subpoena Issued by the United States International Trade Commission ¶ 8 (Aug. 11, 2004) ("Pet. to Enforce"); In the Matter of Certain Encapsulated Integrated Circuit Devices and Products Containing Same, Inv. No. 337-TA-501, Order No. 29 (U.S.I.T.C. April 13, 2004), Attachment E to Pet. to Enforce ("Order No. 29").²

Respondent produced some of the requested documents, but not those pertaining to communications between the parties to the administrative investigation and ASAT Limited or ASAT Holdings. In response, Carsem requested that the ALJ certify to the ITC a request for judicial enforcement of the subpoena. ASAT, Inc. opposed the certification, stating that it had produced all the documents in its possession and that it had submitted written requests for the other subpoenaed documents to ASAT Limited and ASAT Holdings, but that its requests had been denied. See Pet. to Enforce ¶ 10. Inasmuch as he had already found that ASAT, Inc. had control over the documents in the possession of the other entities, the ALJ found respondent's lack of possession an insufficient defense to production, and certified to the ITC the request for judicial enforcement. Id. ¶ 11; see In the Matter of Certain Encapsulated Integrated Circuit Devices and Products Containing Same, Inv No. 337-TA-501, Order No. 63 (June 7, 2004), Attachment F to Pet. to Enforce.

The ITC, after taking the ALJ's certification under advisement, commenced this action to compel compliance with its subpoena.

II. DISCUSSION

Respondent objects to enforcement of the subpoena on two grounds. First, it argues that this Court lacks the personal jurisdiction over ASAT, Inc. necessary to enforce the ITC's subpoena, because the Tariff Act does not provide for extraterritorial service of process in proceedings to enforce subpoenas issued under its auspices. See Respondent ASAT Inc.'s Opposition to Petition for an Order to Enforce Subpoena Issued by the United States International Trade Commission; Request for Oral Argument ("Opp.") at 5-8.³ Second, respondent claims that the ALJ erred in finding that ASAT, Inc. had "control" over documents in the possession of ASAT Limited and ASAT Holdings. See Opp. at 10-14.

A. Personal Jurisdiction Over ASAT, Inc.

Section 333 of the Tariff Act authorizes the ITC to issue subpoenas in the course of investigating violations of the Act, and to "invoke the aid of any district or territorial court of the United States" in compelling compliance with its subpoenas. 19 U.S.C. § 1333(b). Any "such court within the jurisdiction of which such inquiry is carried on" may enforce a subpoena issued by the ITC. Id. The ITC argues that this statutory language gives the Court personal jurisdiction over respondent regardless of whether there are "minimum contacts" between ASAT, Inc. and the District of Columbia, because the District of Columbia is the jurisdiction within which the ITC is "carrying on" its inquiry.

No court has squarely held that the Tariff Act authorizes extraterritorial service of process for actions to enforce ITC subpoenas. The language of Section 333, however, is almost identical to that in Section 9 of the Federal Trade Commission Act, which gives the Federal Trade Commission power to investigate violations of that Act and to issue subpoenas for the production of documents and oral testimony in the course of its investigations. See 15 U.S.C. § 49. The Federal Trade Commission Act states that any district court "within the jurisdiction of which such inquiry is carried on" may issue an order requiring compliance with an FTC subpoena. Id. Section 9 of the Act has been held by the District of Columbia Circuit to be a general grant of jurisdiction to the district courts of the district or districts "in which the inquiry is being conducted" to obtain jurisdiction over the objects of those subpoenas, wherever they may be, "through service upon them of process in whatever district they may be found." FTC v. Browning, 435 F.2d 96, 99-100 (D.C.Cir.1970) (citing United States v. Congress Construction Co., 222 U.S. 199, 203-04, 32 S.Ct. 44, 56 L.Ed. 163 (1911)). The court of appeals in Browning found the authorization of extraterritorial service necessary to effectuate the intent of Congress, expressed in the language of the statute, to give the FTC broad investigative and subpoena powers. See id. at 98-101.⁴

Section 333 of the Tariff Act similarly confers broad investigative and subpoena power upon the ITC, using language almost identical to that of the Federal Trade Commission Act. See 19 U.S.C. § 1333(b); 15 U.S.C. § 49. Under the reasoning of Browning, this Court therefore holds that, in actions to compel compliance with subpoenas issued in the course of an investigation, the Tariff Act authorizes extraterritorial service of process by the district courts in the jurisdiction within which the investigation is being carried on.

Respondent next argues that even if the Tariff Act does authorize extraterritorial service of process, this Court is without personal jurisdiction because the District of Columbia is not the jurisdiction within which the ITC inquiry is being carried on. See Opp. at 5. The primary reason for this, respondent maintains, is that the subpoena at issue directed that the documents sought be produced at the offices of a law firm in Palo Alto, California. Id. at 7-8. The fact that the ITC has held investigatory hearings in the District of Columbia, respondent argues, does not mean that the ITC is conducting its inquiry here.

In interpreting the similar service of process provision under the Federal Election Campaign Act, the court of appeals has held that the place where subpoenas are returnable is not dispositive of the "place of inquiry" under the statute. See FEC v. Committee to Elect Lyndon La Rouche, 613 F.2d at 857 n. 7, 858 n. 9. In general, commissions with investigatory power similar to that of the ITC are held to have "broad discretion" in selecting their place of inquiry. See id.; FTC v. Browning, 435 F.2d at 100; United States v. Firestone Tire & Rubber, 455 F.Supp. at 1076. The test of whether a commission is conducting an inquiry in a particular jurisdiction is "whether that place and the activities occurring there bear a reasonable relation to the subject matter of the investigation." FTC v. MacArthur, 532 F.2d 1135, 1140 (7th Cir.1976). Among the factors to be considered in this determination are:

the convenience of the issuing agency, the location of the documents and witnesses[,] the location of the corporate headquarters of the entity subpoenaed, ... the place where the particular inquiry was authorized and where the agency found reason to believe that a violation had occurred, the place where the subpoena was issued, and the place where correspondence concerning the inquiry had emanated.

United States v. Tesoro Petroleum Corp., 503 F.Supp. 868, 872 (D.D.C.1980) (citing FTC v. MacArthur, 532 F.2d at 1140, and FEC v. Committee to Elect Lyndon La Rouche, 613 F.2d at 857).

Although ASAT, Inc.'s headquarters are in California and the subpoenas were to be returned there, the subpoenas were signed, sealed, and issued by the ALJ in Washington, D.C. See In the Matter of Certain Encapsulated Integrated Circuit Devices and Products Containing Same, Inv. No. 337-TA-501, Subpoena Duces Tecum and Ad Testificandum at 3 (Feb. 11, 2004), Exhibit 1 to Opp. ("Subpoena"). The prior orders ruling on ASAT's motion to quash were also issued from the ALJ's office in Washington. See Order No. 29 at 1 (facsimile cover sheet). Finally, the ITC's certification of the subpoena for judicial...