Hoverboard Importer Next Attacks Statement of Facts in US Cross-Motion for Judgment
After the Court of International Trade denied hoverboard importer 3BTect’s motion to strike three expert reports from the record of its classification dispute, the importer switched Feb. 14 to targeting the factual basis of the government’s cross-motion for judgment, in a 72-page response brief (3BTech v. United States, CIT # 21-00026).
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Another hoverboard importer, GoLabs, also filed an amicus curiae brief on the classification of 3BTech’s hoverboards. It said that it wasn’t siding with either party, but simply seeking to “invite the Court’s attention to the possibility” that classification may depend on whether adults or children are the boards’ intended users.
In its Feb. 14 brief, 3BTech objected to the statement of facts in the U.S.’s cross-motion for judgment (see 2409100056), saying the section was almost entirely a mere “narrative restatement” of the experts’ declarations provided “after the close of discovery.” It also claimed that two of the three experts, Norbert Reiner and Edward Benjamin, weren’t qualified enough to serve that role.
But, though it opposed or denied some of the factual statements in the U.S.’s cross-motion as it responded to them, it also agreed that none raised “a genuine dispute as to any material fact.”
For example, it objected to the section’s opening statement: “Human powered and electrically powered vehicles that are used for transportation fall within the micro-mobility vehicles industry.”
First, it said that the terms “micro-mobility vehicles industry,” “human powered … vehicles that are used for transportation” and “electrically powered vehicles” were all too vague. It also said the statement contained legal conclusions “because the term ‘vehicles’ is a legal term subject to the Court’s interpretation.” It argued that the statement was based on the declaration of Benjamin, who it claimed doesn’t meet any of the requirements for serving as an expert under the Federal Rules of Evidence. And it “deni[ed] any inference that Hoverboards fall within the micro-mobility vehicles industry because Hoverboards are wheeled toys.”
“User manuals for children’s cars powered by a motor that are specifically listed as wheeled toys in the [Harmonized Tariff Schedule’s explanatory notes for HTS] Heading 9503 … refer to such children’s cars as ‘vehicles,’” it said.
Its responses also objected to as vague terms such as “electric propulsion,” “electric motors,” “fore-wheels,” “aft-wheels, “operating paradigm,” “components,” “use patterns,” “controllers,” “sensors” and “different maximum speeds.”
Further, it said the statement that “[s]ome [light electric vehicles] have seats, a balance bar (i.e., a structure with handlebars that ascends from the platform upward toward the chest of a user), throttles, brakes, and pedals or footrests,” among others, was “compound and confusing,” not “short and concise” as is required by court procedural rules.
References to light electric vehicles were irrelevant because hoverboards don’t fall into that category, it claimed. And it disagreed with statements that depicted hoverboards as means of transportation, saying that “[n]one of the cited materials state that Hoverboards are intended to be used or are used as modes of transportation.”
3BTech initially sought in October to have the trade court strike from the record three export declarations used in the government’s cross-motion for judgment. It argued that the declarations were untimely because they contained too much new information compared with the initial expert reports provided by the government during discovery (see 2409300023). The importer also asked for attorneys fees.
3BTech’s motion was rejected by CIT Judge Jane Restani in a paperless Oct. 31 order. In its own response, the U.S. argued that no new information actually appeared in any of the three experts’ declarations. For example, it said, 3BTech had taken issue with expert Reiner’s declaration that ride-on toys are manufactured “with/or without pedals.” But, though Reiner had said in his report that the toys “generally have pedals,” he went on to identify scooters as ride-on toys and explain that ride-on toys can be moved by pedaling, kicking against the ground or by being pushed or pulled by another person or a motor; so the report, along with other discovery documents, “contain[ed] sufficient information” to put 3BTech on notice as to Reiner’s opinion, it said.
The government also noted that the declarations were based on examinations of samples the importer only provided after the discovery deadline had passed.
In turn, another hoverboard seller, GoLabs, was permitted by the trade court to file an amicus curaie brief. It pointed out that, under the HTS's first general rule of interpretation, the government's preferred classification of the hoverboards as transportation devices under heading 8711 instead of toys under heading 9503 might be precluded by the section and chapter notes for HTS Chapter 87. The notes exclude products that also fall under heading 9503, including, explicitly, all children's cycles other than bicycles, it pointed out. It said that its products -- and 3BTech's -- are motorized "dicycles." Dating back to 1877, dicycles have been defined as vehicles built with two wheels side-by-side instead of on a single track, it said.