TKS Files Antidumping Appeal

By: Jim Rosenberg Tokyo Kikai Seisakusho and its TKS (U.S.A.) subsidiary have filed their appeal of the antidumping lawsuit brought by Goss International in March 2000 and for which Goss was awarded triple damages amounting to $31.5 million last May.

Filed Aug. 19 in the United States Court of Appeals for the Eighth Circuit in St. Louis, the appeal followed a federal trial court judge's denial of TKS motions to either reverse the verdict or retry the case (E&P Online, June 1, June 29).

In its notification of appeal filed with Japan's stock exchanges, TKS stated that "a decision on the appeal may be in the spring of 2005."

The notification also states that Japan's government has proposed to file an amicus curiae brief on behalf of TKS, "requesting revocation of the decision." It stated that the Japanese government views a judicial decision as "inappropriate" because the law under which the case was brought, the Antidumping Act of 1916, contradicts "international standards of trade" -- specifically U.S. treaty obligations recognized by the World Trade Organization. TKS goes on to say that the U.S. government "manifested its support to repeal" that law in its "Third Report on the United States-Japan Regulatory and Competition Policy Initiative."

TKS expressed its hope that Congress will retroactively repeal the statute without delay.

TKS has asked the appellate court to allow each side time for oral argument in order to consider questions of interpretation of the Antidumping Act. Its request refers specifically to two issues: the meaning of the law's requirement that an importer intend to destroy, injure or prevent establishment of a U.S. industry or restrain or monopolize commerce in goods produced by that industry, and "whether a plaintiff can recover damages for alleged 'price erosion' on sales won by the plaintiff, even though there was no proof that the defendant offered to sell its products to the customers involved in those sales at 'dumped' prices."

Asking that the district court judgment be reversed or a new trial granted, TKS makes the following arguments:

* The act requires "specific predatory intent," something that "Goss neither pleaded nor proved."

* In price-erosion claims in two sales, Goss presented no evidence of TKS dumping and that TKS bids for the business were higher than Goss'.

* The district court committed "a clear abuse of discretion" by excluding what TKS calls evidence of Goss' "widespread reputation for poor quality and financial instability" -- an alternative to dumping as an explanation "for why Goss felt compelled to lower its prices" in the two sales.

* A "legally inappropriate" method to compare prices of products sold in the U.S. and Japan.

* A four-year statue of limitations that applies to antidumping lawsuits bars Goss' claim for damages on a third sale.

Goss executives declined to comment on TKS's announcement in Japan and its appeal in the United States.