1. State the issue before the appeals court.

2. Does the commission’s order in this case purport to regulate purely foreign conduct contravening the proper application of Section 337 of the Tariff Act?

3. Section 337 requires that the acts of unfair competition threaten “to destroy or substantially injure an industry in the United States.” Since it is fact that there is no domestic manufacturer currently practicing the protected process, must the appeals court set aside the ITC’s order?

Amsted Industries Inc. is a domestic manufacturer of cast steel railway wheels. It owns two secret processes for manufacturing such wheels, the “ABC process” and the “Griffin process.” Amsted previously practiced the ABC process at its foundry in Calera, Alabama, but it no longer uses that process in the United States. Instead, Amsted uses the Griffin process at three of its domestic foundries. However, Amsted has licensed the “ABC process” to several firms with foundries in China. TianRui Group Company Limited manufactures cast steel railway wheels in China. TianRui hired nine employees away from one of Amsted’s Chinese licensees, Datong ABC Castings Company, Limited. Datong had previously notified those employees through a written employee code of conduct that information pertaining to the ABC process was proprietary and confidential. Each employee had been advised that he had a duty not to disclose confidential information. In the proceedings brought by Amsted before the International Trade Commission (ITC), Amsted alleged that the former Datong employees disclosed information and documents to TianRui that revealed the details of the ABC process and thereby misappropriated Amsted’s trade secrets. TianRui partnered with Standard Car Truck Company, Inc., to form the joint venture Barber TianRui Railway Supply, LLC, and has marketed TianRui wheels to United States customers. Other than Amsted, they are the only companies selling or attempting to sell cast steel railway wheels in the United States. The ITC determined that the importation of the articles violated the Tariff Act and issued a limited exclusion order. TianRui appealed to the United States Court of Appeals for the Federal Circuit.

JUDICIAL OPINION

BRYSON, C. J…. The Administrative law judge’s findings establish that TianRui obtained access to Amsted’s confidential information through former Datong employees, who were subject to duties of confidentiality imposed by the Datong code of employee conduct, and that TianRui exploited that information in producing the subject goods. TianRui does not take issue with those findings, which are sufficient to establish the elements of trade secretmisappropriation under either Illinois law or the generally understood law of trade secrets, as reflected in the Restatement, the Uniform Trade Secrets Act, and previous Commission decisions under section 337….

In this case, Tian Rui argues that section 337 is inapplicable because Amsted’s confidential information was disclosed in China. The legal issue for us to decide is thus whether section 337 … applies to imported goods produced through the exploitation of trade secrets in which the act of misappropriation occurs abroad….

… [I]n this case the Commission has not applied section 337 to sanction purely extraterritorial conduct; the foreign “unfair” activity at issue in this case is relevant only to the extent that it results in the importation of goods into this country causing domestic injury. In light of the statute’s focus on the act of importation and the resulting domestic injury, the Commission’s order does not purport to regulate purely foreign conduct….

… Congress intended a … broad and flexible meaning when it used the … language to prohibit “unfair methods of competition” in importation. That provision was added to the law in the Tariff Act of 1922, Pub.L. No. 67–318, § 316(a), 42 Stat. 858, 943, pursuant to a recommendation of the Tariff Commission (the former name of the International Trade Commission) in a 1919 report. See U.S. Tariff Comm’n, Dumping and Unfair Foreign Competition in the United States and Canada’s Anti-dumping Law (1919) (“1919 Report”). In its report, the Commission identified several deficiencies in U.S. trade laws, including the absence of any remedy for unfair competition other than dumping, id. at 11, and the lack of any adequate “governmental machinery” for investigating allegations of dumping, “one element of which must be found abroad,” id. at 18. In a ………………………