I hope we have enough to show a Domestic Industry .

From the Public Version of Order 61

Regarding Complainants’ claim of unfairness, Complainants made a tactical decision

before this Investigation began to rely exclusively on TPL’s investments to support their

domestic industry claims. By deciding to forego reliance on domestic investments by PDS and Patriot, it can only be assumed that Complainants felt TPL’s investments were more than sufficient to meet the domestic industry requirements of Section 337. In light of this, the Administrative Law Judge finds that Complainants have not identified any change in circumstances that would make it manifestly unfair to deny allowing them to now rely on investments by PDS and Patriot.1 Further, given the late stage of this Investigation, any unfairness to Complainants is now greatly outweighed by the prejudice to Respondents and Staff that would occur by granting Complainants’ motion. This is particularly so in light of the fact that Complainants waited until the eve of trial to file their motion2 even though the issue was originally addressed in Order No. 28, which issued on April 15, 2013.

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1 While Complainants refer to TPL’s bankruptcy filing on this point, Complainants “vehemently dispute” that this filing undermines TPL’s domestic industry investments. (See Mot. Mem. at 6-7.) Although the Administrative Law Judge takes no position at this time as to the underlying merits of Complainants’ domestic industry case, Complainants’ arguments that the bankruptcy has no impact does undermine the persuasiveness of Complainants’ arguments somewhat here. The Administrative Law Judge is also mindful of instances in which a change of circumstances in an investigation would warrant a change in position. See e.g., Certain Devicesfor Mobile Data Communication, Inv. No. 337~TA—809, Order No. 41 (U.S.I.T.C., 2012) (allowing certain amendments to the Complaint to account for a corporate sale). However, those cases are distinguishable from this one because here Complainants made unequivocal remarks and foreclosed discovery early in the Investigation, as noted above, and then failed to timely seek to formally change their stance by way of appropriate and prompt motions to amend discovery and the allegations in the Complaint. It is the “too little, too late” approach that the Administrative Law Judge finds prejudices the other parties in the case under the circumstances presented here.

2 The Administrative Law Judge notes that Complainants attempted to address this issue in supplemental briefing submitted pursuant to Order No. 27. However, Complainants should have known that a supplemental brief was not a proper substitute for a motion on this issue, which would allow for the other parties to respond