Enforcement Penalties at the ITC

The U.S. International Trade Commission (“ITC” or “Commission”) has grown in importance as a venue for U.S. companies to pursue intellectual property (“IP”) violators and to block the sale or importation of goods from overseas that infringe U.S. IP rights. Once a violation of the Section 337 of the Tariff Act of 1930 is found, an order halting further infringement, including importation, is almost always entered. In theory, potentially sizeable penalties may be imposed on entities that do not comply with the terms of an import restriction. In practice, the terms of an import restriction are almost always honored, but when they are not, maximum enforcement penalties are rarely imposed. In fact, most penalties for non-defaulting respondents are one-third or less of the maximum penalty allowed by the law. Thus, non-compliance tends not to be too harshly punished. Penalty determinations at the ITC are governed by a set of six factors, called “the EPROMs factors,” which arose from the Commission’s 1989 decision in Certain Erasable Programmable Read Only Memories (“EPROMs”). To date, no scholarship has sought to examine how courts have treated these factors collectively or evaluated their relevance individually to the penalties ultimately adopted by the ITC. Without such an investigation, parties considering enforcement actions have been left with little guidance as to the merits of their case. This paper provides a descriptive analysis of the EPROMs factors as well as an economic analysis of the relationship between these six factors and enforcement penalties imposed on ITC respondents. We undertake a qualitative and quantitative review of all ITC cases to date in which penalties have been assessed either by an Administrative Law Judge (“ALJ”) or by the Commission itself. In short, we find that maximum enforcement penalties are rarely imposed. Moreover, proof of the good faith or bad faith of respondent’s compliance with an import restriction (Factor 1) appears to be the most important of the EPROMs factors. Even proving respondent’s bad faith, however, rarely leads to imposition of the maximum penalty