February 12, 2010
In a Law360 article titled “SKF Looks to High Court to Nullify Byrd Amendment,” partner Michael J. Coursey was quoted. The article discusses a petition for certiorari before the U.S. Supreme Court filed by SKF USA Inc., appealing a decision of the U.S. Court of Appeals for the Federal Circuit upholding the constitutionality of the so-called Byrd Amendment to the U.S. antidumping ("AD") law. That amendment limits dumping duty proceeds to only the U.S. producers that vocally supported the initial duty petition — a violation of free speech, according to SKF.
The U.S. International Trade Commission circulates mandatory questionnaires among U.S. producers asking whether they support, oppose or take no position on the potential duties in question. Under the Byrd Amendment, respondents who affirm their support are eligible for proceeds of any duties ultimately imposed. Those that oppose or take no position, on the other hand, get nothing. As counsel for Monterey Mushrooms Inc., a defendant intervenor on the side of the federal government in a separate case challenging the Byrd Amendment, Coursey characterized the ITC questionnaires as a “reality check of what's really going on” in the affected industries. “It isn't an effort to elicit the views of the producers on whether they agree with the dumping duties,” Coursey said. “It's a way of seeing if there's injury. And if you respond, 'No, I'm doing just fine,' why should you get money?”
Mr. Coursey also notes the fact that the amendment has been repealed could cause the Supreme Court, which is always besieged with many more appeal requests than it can handle, to decline hearing SKF's case.