Trade Court Denies Stay Bid Over 'd' Test Question
The Court of International Trade in a May 20 order denied plaintiff Koehler Paper's stay motion in antidumping case. The U.S. opposed the stay motion which requested that the case be halted until the Court of Appeals for the Federal Circuit sorted out what to do about the use of the Cohen's d test when detecting masked dumping on the grounds that the impact of a Federal Circuit decision is "speculative at best" (see 2204220041). The U.S. pointed out that resolution of the Federal Circuit case Stupp Corp. v. United States may only affect two legal issues in the case leaving six issues unaffected (Matra Americas LLC v. United States, CIT Consol. #21-00632).
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Just prior to the order denying the stay, Koehler filed a brief further defending the stay. The plaintiff addressed the U.S.'s claim that the stay wouldn't affect six out of the eight issues in the case. "But simply counting the number of claims in a litigation is not a reasonable way to determine the centrality of a claim to the ultimate outcome of that litigation," the brief said. "As alleged in Koehler’s and Matra’s complaints, Commerce misapplied the Cohen’s d statistical test and that misapplication resulted in a weighted average dumping margin that exceeded the de minimis threshold. If Stupp Corp. is ultimately resolved in favor of Koehler’s position, then the entire antidumping order could be invalidated.
"At a minimum, the Stupp Corp. decision will cause the parties to re-evaluate other claims. On the other hand, if Stupp Corp. is ultimately resolved in favor of Commerce’s position, that likewise could affect how the parties proceed with other claims. The Cohen’s d issue is the 'keystone' issue in this case." Ultimately, the argument fell short.