AMA Explains DOJ Terminology in Withdrawal Statement

May 6, 2020  by Laurie Northington in Business Strategy, Industry   

On April 22, 2020, the United States Department of Justice (DOJ) filed a Statement of Interest with the U.S. International Trade Commission (ITC) in regard to the antidumping investigation of Mattresses from Cambodia, China, Indonesia, Malaysia, Serbia, Thailand, Turkey, and Vietnam, Inv. Nos. 701-TA-645 and 731-TA-1495-1501.

In that statement, the DOJ noted that “promoting competition that provides consumers with better access to mattresses at competitive prices may support the health and safety of millions of Americans.” The DOJ asked that the ITC “consider the competitive effects of any action particularly in light of the ongoing national emergency related to Coronavirus Disease 2019 (“COVID-19”) in evaluating allegations of material injury in the domestic market and deciding how to remedy any such injury.”

On May 1, 2020, the DOJ withdrew the statement “as not yet ripe.”

The AMA consulted lawyer Wayne Mack regarding the legal issue of “ripeness.” Mack is co-chair of the Trial Practice Group at the international law firm, Duane Morris LLP, and has represented clients in antitrust and competition matters before the courts and administrative agencies for over 30 years.

Mack said, “The decision of the Department of Justice to file a Statement of Interest in support of respondents at the inception of the investigation was the first time in recent history that the DOJ has done so. The withdrawal of that unprecedented statement does not indicate that the DOJ is now coming down on the side of petitioners, rather than the respondents.”

“Instead, given that the DOJ stated that matter was ‘not yet ripe,’ it appears the DOJ decided it was too early in proceeding to weigh in and instead will await the development of a full evidentiary record and possibly until after the agency reaches a decision.” Mack continued, “Under the judicial doctrine of ripeness, administrative matters are often not considered as ‘ripe’ for review until an actual decision is rendered by the agency so that there is no interruption in the administrative process and all the details of a concrete factual situation are available for consideration.”

The entire body of the Notice of Withdrawal from the DOJ read: “On April 22, 2020, the United States Department of Justice filed a Statement of Interest in this proceeding. The Department hereby withdraws that Statement of Interest as not yet ripe.” The DOJ in no way disavowed the substance of its arguments or its conclusion.

According to Mack, “Any attempt to attribute additional meaning or intent to the DOJ statement would be overreaching and unfounded.”