All international trade lawyers and consultants should be aware that after 88 years, the 1916 Antidumping Act has finally come to life.

On December 4, 2003 a Federal District Court jury returned a verdict in the first case ever tried under the Act. Goss Graphics, brought a damage action under the act against the TKS, Ltd. and its American importer, TKS USA for selling large newspaper printing presses in the States at costs lower than in Japan. While rejecting a majority of Goss's claims, the jury did award over $10,000,000 for certain lost sales, an amount which will be trebled and costs awarded. Post-trial motions have been filed and an appeal is imminent.

Traditionally the Trade Bar has considered the Act a relic of an earlier time. The Litigation Bar has taken another view. They view the Act as alive and well and the newest weapon in international business competition litigation.

For those of you unfamiliar with the 1916 Anti-Dumping Act,here is the statute:

15 U.S.C. Section 72

Section 72. Importation or sale of articles at less than market value or wholesale price

It shall be unlawful for any person importing or assisting in importing any articles from any foreign country into the United States, commonly and systematically to import, sell or cause to be imported or sold such articles within the United States at a price substantially less than the actual market value or wholesale price of such articles, at the time of exportation to the United States, in the principal markets of the country of their production, or of other foreign countries to which they are commonly exported after adding to such market value or wholesale price, freight, duty, and other charges and expenses necessarily incident to the importation and sale thereof in the United States: Provided, That such act or acts be done with the intent of destroying or injuring an industry in the United States, or of preventing the establishment of an industry in the United States, or of restraining or monopolizing any part of trade and commerce in such articles in the United States.

Any person who violates or combines or conspires with any other person to violate this section is guilty of a misdemeanor, and, on conviction thereof, shall be punished by a fine not exceeding $ 5,000, or imprisonment not exceeding one year, or both, in the discretion of the court.

Any person injured in his business or property by reason of any violation of, or combination or conspiracy to violate, this section, may sue therefor in the district court of the United States for the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages sustained, and the cost of the suit, including a reasonable attorney's fee.

The foregoing provisions shall not be construed to deprive the proper State courts of jurisdiction in actions for damages thereunder.

[Enacted 9/8/16, ch 463, Title VIII, Section 801, 39 Stat. 798]



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Most people associate "dumping" with "lost leader". A violation of the 1916 Act, however, can occur even if your client sells for a profit. All that is necessary is that the product be sold at a higher price in the country of manufacture that in the United States. While sales and profit are normal parts of legitimate competition, ultimately your client's true intent will be judged by a jury. Intent is almost always proved by circumstantial evidence. Acting upon Advice of Counsel is evidence of the client's bona fides.

Nor does your client have to be a manufacturer to be subject to the 1916 Act as it also applies to importers. Damages are measured by the lost profit on the lost sales. Further damages may be awarded for "price suppression" caused by your client's actions.

Neither predatory intent nor product identicality required. There can be differences between the export and home product. The degree of difference will be a significant issue. Generally differences are viewed from the standpoint of consumer use, preference and technological differences.

The fact that the 1916 Act was declared illegal by the WTO has no effect on the legality of the statute or private claims to enforce it. Many bills have been introduced in Congress to repeal the Act but all have failed. Currently bills are pending, but little action is anticipated given 2004 is an election year.

Those of you familiar with the Byrd Amendment may ask why someone file under the 1916 Act instead of claiming injury under the Byrd Amendment? The 1916 Act measure of damage greatly exceeds the compensation granted under the Byrd Amendment. The 1916 Act also compensates for damage suppression. Plus the 1916 Act is punitive in nature, all damages are trebled and prosecution fees and costs are assessed as damages.

Your client is not without protection,however. The Act, while providing a civil remedy, is criminal in nature being malum prohibitum rather than malum in se. A such it requires specific intent. As with all claims requiring specific intent, the bona fides of your client become extremely powerful evidence. In this regard, Advice of Counsel may be a defense. However the Advice of Counsel defense does not come without cost. One claiming the defense waives the attorney or barrister client privilege. Consequently you should not so advise. Instead, you should advise them to immediately obtain advice of experienced and competent 1916 Act counsel to determine if their trade activities in the past, as well as those contemplated in the future are at risk under the Act. Should litigation ensue, it will be necessary for counsel advising on the 1916 Act to provide expert opinion testimony in support of the advice.

See www.1916AntiDumpingAct.com for more information.

As the world continues to get smaller and international travel more common, areas of the law once thought to be of primarily local jurisdiction are now turning out to have international complications. Nowhere is this more evident then in the area of family law.

Marriages between US citizens and non-US citizens can be extremely beneficial and worthwhile, but when they break down the fight over child custody and visitation can quickly become quite complex. Simply serving a legal notice of lawsuit on non-US resident can be difficult. (See Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil and Commercial Matters). . Further complications develop when one spouse decides to take matters into their own hands and simply disappears with the child, returning to their homeland.

In order to provide a remedy for such “abductions,” the international community came up with the Hague Convention on the Civil Aspects of International Child Abduction (implemented within the US by the International Child Abduction Remedies Act (ICARA), 42 U.S.C.A. §§ 11601-11610.) The Convention aims to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence. As of this date, some 52 countries are signatories to the Convention. Some of these countries, however, are more than reluctant to comply with the terms of the Convention. (See Report on Compliance with the Hague Convention on the Civil Aspects of International Child Abduction covering cases through September of 2002.)

Utilization of the Convention is fairly straightforward. Each signatory to the Convention has a Central Authority to which an aggrieved parent may apply for assistance. (Click here for the United States Central Authority.) That Central Authority will contact the Central Authority of the country to which the child has been taken. An attempt will then be made to locate the child and obtain a voluntary return. In the event that the parent refuses to return the child, a lawsuit is brought on behalf of the aggrieved parent to compel the return of the child.

To establish a prima facie case of wrongful removal or retention under the Hague Convention, the aggrieved parent must show that:

(1) the child was "habitually resident" in the country before being removed;
(2) the child's removal was in breach of the "rights of custody" of "a person, an institution or any other body;" and
(3) that those rights "were actually exercised at the time of removal or would have been so exercised in the absence of his removal." See Hague Convention, Art. 3.

As one would expect, there has been a significant amount of jurisprudence develop as it concerns the above terms. Courts have concluded that the term “habitually resident" refers to a child's customary residence prior to his removal but focuses not upon a child's domicile or legal residence but rather where the child physically lived for an amount of time sufficient for acclimatization and which has a degree of settled purpose from the child's perspective.

"Rights of custody,” meanwhile, include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence. These rights may arise by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.

After the aggrieved parent has made a prima facie showing, the burden shifts to the opposing parent to show by clear and convincing evidence why the child should not be returned. Under the Convention, it is an affirmative defense if:

(1) the person seeking return of the child consented to or subsequently acquiesced in the removal or retention;
(2) the proceeding was commenced more than one year after the removal of the child;
(3) the children have become settled in their new environment; and
(4) there is a grave risk that the return of the children would expose them to physical or psychological harm.

Court decisions on this matter are quite clear that acquiescence under the Convention requires either an act or statement with the requisite formality, such as testimony in a judicial proceeding; a convincing written enunciation of rights; or a consistent attitude of acquiescence over a significant period of time. Acquiescence has been held to be a question of subjective intent.

Equally problematic is the “one year” defense. Commencement of proceedings, as used in Article 12 of the Convention, means the filing of a civil petition for relief in any court which has jurisdiction in the place where the child is located at the time the petition is filed. But Article 12 goes on to state that "even where the proceedings have been commenced after the expiration of the period of one year . . . , [the court] shall also order return of the child, unless it is demonstrated that the child is now settled it its new environment." Hague Convention, Article 12.

As for the "well settled" exception, it should be noted that the court retains the discretion to order the children returned even if an exception applies. Nor is a court obligated to take into account the child’s wishes.

Finally, Article 13(b) of the Hague Convention allows a court to deny return of a child to the country of habitual residence if "there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation." Generally speaking, such a risk arises in two situations: (1) imminent danger such as war, famine, or disease; or (2) when there is likely to be serious abuse or neglect and the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection.

Suffice to say, once the enforcement mechanism of the Hague Convention on the Civil Aspects of International Child Abduction has been implemented, it is extremely difficult to avoid having to return the child.

Counsel seeking more information should contact the National Center for Missing & Exploited Children

Advance Fee Fraud schemes are nothing new and, like us, most of you have likely had a client or two who has fallen victim to such a con. The United States Secret Service reports that they receive approximately 100 telephone calls and up to 500 letters a day from victims or potential victims. (See the USSS's "Public Awareness Advisory Regarding '4-1-9' or 'Advanced Fee Fraud' Schemes" for more info.) Recently, however, we have observed a new twist: the involvement of on-line banks.

Rather than originating out of Nigeria (home of the infamous “4-1-9" scam or, as it is known in Europe, the "Nigerian Connection"), these new schemes are being run out of England and Ireland. The unsuspecting victim is contacted by an (alleged) solicitor out of greater London and informed that they are the sole heir of a large inheritance from a hitherto unknown relative. The victim is then contacted by a bank which claims to be handling the transfer of the funds to the new beneficiary. Once an account is opened, the scam runs its ordinary course: getting the unsuspecting victim to advance greater sums of money without ever actually getting anything in return.

The involvement of the on-line banking industry–or, should we say, the alleged on-line banking industry–is a relatively new twist in the advance fee fraud scheme. These entities can be set up in a relatively short time, and the domain names used differ only slightly from established banks thus allowing for a veneer of authenticity. As a first step of your investigation, try running a domain name registry search on the bank’s domain name to determine the identity of the owner and where the bank’s website is hosted.

If your US based clients have lost money by anyone of these schemes, you should contact the United States Secret Service's Financial Crimes Division (950 H Street, NW, Washington, D.C. 20223, or telephone 202-406-5572.) If you or your clients have received a scheme letter, but have not lost any funds, you should fax a copy of the letter to the Secret Service at (202) 406-5031 as well as your local Attorney General. Those of you in the UK should contact the National Criminal Intelligence Service's West African Organised Crime Section at 020-7238-8012 if you have lost funds. If you have not, contact the Fraud Squad at your local police station.