Meyer Corporation, U.s. v. United States

United States Court of Appeals
for the Federal Circuit
______________________
MEYER CORPORATION, U.S.,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2023-1570
______________________
Appeal from the United States Court of International
Trade in Nos. 1:13-cv-00154-TJA, 1:13-cv-00181-TJA, 1:13-
cv-00182-TJA, 1:13-cv-00226-TJA, 1:13-cv-00227-TJA,
1:13-cv-00258-TJA, 1:13-cv-00259-TJA, 1:13-cv-00266-
TJA, 1:13-cv-00322-TJA, 1:13-cv-00323-TJA, 1:13-cv-
00405-TJA, 1:14-cv-00118-TJA, 1:14-cv-00277-TJA, 1:15-
cv-00018-TJA, 1:15-cv-00019-TJA, 1:15-cv-00091-TJA,
1:15-cv-00092-TJA, 1:15-cv-00191-TJA, 1:15-cv-00332-
TJA, 1:16-cv-00112-TJA, 1:16-cv-00271-TJA, 1:17-cv-
00186-TJA, 1:20-cv-03835-TJA, 1:21-cv-00103-TJA, Senior
Judge Thomas J. Aquilino, Jr.
______________________
Decided: December 13, 2024
______________________
JOHN M. PETERSON, Neville Peterson LLP, New York,
NY, argued for plaintiff-appellant. Also represented by
PATRICK KLEIN; JOHN DONOHUE, Philadelphia, PA;
RICHARD F. O'NEILL, Seattle, WA.
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MEYER CORPORATION, U.S. v. US 2
BEVERLY A. FARRELL, Commercial Litigation Branch,
Civil Division, United States Department of Justice, New
York, NY, argued for defendant-appellee. Also represented
by BRIAN M. BOYNTON, AIMEE LEE, PATRICIA M. MCCARTHY,
JUSTIN REINHART MILLER; PAULA S. SMITH, Office of the
Assistant Chief Counsel, Bureau of Customs and Border
Protection, United States Department of Homeland
Security, New York, NY.
______________________
Before PROST, HUGHES, and CUNNINGHAM, Circuit Judges.
HUGHES, Circuit Judge.
This case returns to us on appeal following a remand
in Meyer Corp., U.S. v. United States, 43 F.4th 1325
(Fed. Cir. 2022). In that case, we held that the United
States Court of International Trade had misinterpreted our
precedent by imposing requirements beyond what the
statute and regulations demand when determining that
Meyer Corporation, U.S. was not entitled to rely on a “first-
sale” price for the dutiable value of its imported cookware.
On remand, the trial court again held that Meyer was not
entitled to rely on its first-sale price, finding that Meyer’s
failure to produce financial documents for its parent
holding company was dispositive of the issue. Because the
trial court improperly applied an evidentiary presumption
against Meyer and failed to address record evidence, we
once again vacate and remand for the trial court to
reconsider whether Meyer may rely on its first-sale price.
I
We briefly discuss the parties and the history of this
case before turning to the merits of the current appeal. This
case concerns duties that U.S. Customs and Border
Protection assessed on cookware imported by Meyer
Corporation, U.S. (Meyer). Some cookware was
manufactured in Thailand, and some was manufactured in
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China. The manufacturers in Thailand and China sold
finished cookware to distributors in Macau and Hong
Kong, respectively, and then to the U.S. importer, Meyer.
The manufacturers, distributors, and importer are all
related, with common parent and shareholder Meyer
International Holdings, Ltd. (Meyer Holdings).
Relevant here, Meyer requested that Customs value its
cookware based on the first-sale price that its affiliated
distributors paid to the manufacturers. See Meyer Corp.,
U.S. v. United States, No. 13-00154, 2021 WL 777788, at *3
(Ct. Int’l Trade Mar. 1, 2021) (Meyer II).1 Customs rejected
Meyer’s request to use the first-sale price and instead
assessed duties based on the second-sale price that Meyer
paid to its distributors. Id. at *4.
Meyer protested Customs’ decisions and then appealed
to the Court of International Trade. Id. Following a bench
trial, the trial court affirmed Customs’ decision “to deny
‘first sale’ treatment.” J.A. 89. In doing so, the trial court
held that, under our decision in Nissho Iwai Am. Corp. v.
United States, 982 F.2d 505 (Fed. Cir. 1992), an importer
wishing to rely on the first-sale price bears the burden to
show that the first sales were “(1) bona fide sales that are
(2) clearly destined for the United States (3) transacted at
arm’s length and (4) absent any distortive nonmarket
influences.” Meyer II, 2021 WL 777788, at *1, *5 (citing
Nissho Iwai, 982 F.2d 505. For both Meyer’s Chinese-
manufactured products and its Thai-manufactured
products that were made in part from Chinese inputs, the
trial court found that Meyer had not provided adequate
information to prove that its first sales met the last
1 For clarity, we adopt the same short form
references as the trial court. “Meyer I,” as used by the trial
court, refers to its pre-trial opinion granting-in-part
summary judgment, Meyer Corp. v. United States, 255 F.
Supp. 3d 1348 (Ct. Int’l Trade 2017). See J.A. 1–2.
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MEYER CORPORATION, U.S. v. US 4
requirement: that they were free of “market-distortive
influence, either with respect to the plaintiff directly or the
provision of inputs generally.” Id. at *6, *51. The trial court
thus concluded that Meyer could not rely on the first-sale
prices. Id. at *50–51.
Meyer appealed to this court, and we held that “[t]he
trial court misinterpreted our decision in Nissho Iwai to
require any party to show the absence of all ‘distortive
nonmarket influences.’” Meyer Corp., U.S. v. United States,
43 F.4th 1325, 1332 (Fed. Cir. 2022) (Meyer III). We
explained that “[t]here is no basis in the statute for
Customs or the court to consider the effects of a non-market
economy on the transaction value” and that “[t]he statute
requires only that ‘the relationship between [the] buyer
and seller did not influence the price actually paid or
payable.’” Id. (quoting 19 U.S.C. § 1401a(b)(2)(B)) (third
alteration in original). Accordingly, we vacated and
remanded “for the court to reconsider whether Meyer may
rely on the first-sale price.” Id. at 1333.
On remand, the trial court repeated many of its
previous findings—with references to non-market economy
effects excised—and again held that Meyer was not
entitled to first-sale valuation of its cookware and
subsequently “affirmed” its earlier judgment in Meyer II.
Meyer Corp., U.S. v. United States, 614 F. Supp. 3d 1376,
1381 (Ct. Int’l Trade 2023) (Meyer IV). Meyer timely
appeals. We have jurisdiction under 28 U.S.C. § 1295(a)(5).
II
“We review the Court of International Trade’s
conclusions of law de novo.” Ford Motor Co. v. United
States, 286 F.3d 1335, 1340 (Fed. Cir. 2002). “Following a
trial, we review the court’s findings of fact for clear error.”
Id.
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III
On appeal, Meyer asserts that the trial court failed to
comply with our remand order requiring reconsideration of
whether Meyer may rely on the first-sale price. In raising
this argument, Meyer alleges that the trial court
improperly relied on an adverse evidentiary inference and
failed to give due consideration to other record evidence.
Meyer also argues that this case requires us to provide a
definitive interpretation of “the firm” as used in 19 C.F.R.
§ 152.103(l)(1)(iii). We address each issue in turn.
A
1
Under Section 402(b) of the Tariff Act of 1930, as
amended, Customs is instructed to set the transaction
value of imported merchandise as “the price actually paid
or payable for the merchandise when sold for exportation
to the United States” plus additional amounts for certain
specified costs not relevant here. 19 U.S.C. § 1401a(b)(1).
Where the transaction takes place between a related buyer
and seller, the statute states that the transaction value is
viable “if an examination of the circumstances of the sale
of the imported merchandise indicates that the
relationship between such buyer and seller did not
influence the price actually paid or payable.” Id.
§ 1401a(b)(2)(B). The transaction price between related
parties is also acceptable “if the transaction value of the
imported merchandise closely approximates . . . the
transaction value of identical merchandise, or of similar
merchandise, in sales to unrelated buyers in the United
States.” Id. § 1401a(b)(2)(B)(i).
The statute’s corresponding regulation, 19 C.F.R.
§ 152.103(l)(1), lists ways for Customs to find that the
relationship between the buyer and seller did not influence
the price. Two of the three tests are relevant here: the
“normal pricing practices” test and the “all costs plus
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profit” test. As the name suggests, Customs will find that
the “normal pricing practices” test is satisfied “[i]f the price
has been settled in a manner consistent with the normal
pricing practices of the industry in question.” Id.
§ 152.103(l)(1)(ii). Likewise, the “all costs plus profit test”
is met “[i]f it is shown that the price is adequate to ensure
recovery of all costs plus a profit which is equivalent to the
firm’s overall profit realized over a representative period of
time . . . , in sales of merchandise of the same class or
kind.” Id. § 152.103(l)(1)(iii).
In Nissho Iwai, we addressed which price Customs
should use as the transaction value in a multi-tiered
import scheme in which all the entities are related—the
first-sale price the distributor paid to the manufacturer or
the second-sale price the importer paid to the distributor.
982 F.2d at 508–11. There, we explained that “once it is
determined that both the first- and second-sale prices are
statutorily viable transaction values, the rule is straight-
forward: the manufacturer’s first-sale price, rather than
the distributor’s second-sale price, is used as the basis for
determining transaction value.” Meyer III, 43 F.4th at 1332
(quoting Nissho Iwai, 982 F.2d at 509) (cleaned up and
alterations omitted). The Nissho Iwai decision also
elaborated on the meaning of “statutorily viable,” stating
that “[t]he manufacturer’s price constitutes a viable
transaction value when the goods are clearly destined for
export to the United States and when the manufacturer
and middleman deal with each other at arm’s length, in the
absence of any non-market influences that affect the
legitimacy of the sales price.” Id.
2
As explained above and in our Meyer III opinion, the
trial court in Meyer II erroneously interpreted Nissho
Iwai’s statement about “the absence of any non-market
influences” to mean that, because China was a non-market
economy, Meyer had “the burden of demonstrating that
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MEYER CORPORATION, U.S. v. US 7
inputs from [China], as well as with respect to the
transactions from its producer/seller to its
middleman/buyer, were procured at undistorted prices.”
Meyer II, 2021 WL 777788, at *6. To that end, the trial
court held that financial records pertaining to Meyer
Holdings, the ultimate parent company of the Meyer group,
were “relevant to examining whether any non-market
influences affect the legitimacy of the sales price.” Id.
Meyer did not produce any Meyer Holdings financials,
asserting that it did not possess such records and that they
were not relevant to the issues posed by the case.
Subsequently, the trial court’s rejection of Meyer’s first-sale
price hinged almost entirely on the absence of Meyer
Holdings financials. The trial court noted that for the “all
costs plus profit” test, “costs are obviously critical to that
determination, and the real costs of inputs from [China]
are suspect, given its status as a nonmarket economy
country.” Id. at *50. The trial court went on to explain its
concerns about interference by Meyer Holdings:
Even if “true” costs of such inputs could be
determined, Meyer Holding presumptively has had
the ability to influence the price paid or payable for
them, for example by providing its subsidiaries
access to credit and capital on terms that are not
available to competitors without the same level of
bargaining power with creditors, or even at “below
market” rates. Without financial statements, the
court has no concept of the extent to which the
finances of the Meyer group units are truly
independent “silos” of one another, or the extent to
which there might have been state influence or
assistance to some degree. Statutory assists do not
encompass financial assistance, of course, but the
broader concern here is over market-distortive
influence, either with respect to the plaintiff
directly or the provision of inputs generally.
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Id. at *51. The trial court also acknowledged that Meyer
Holdings was not a party to the litigation and Meyer was
entitled to assert its inability to obtain parent company
information, but it nevertheless found the lack of
documents meaningful, stating:
However, given that the parent has an interest in
seeing these types of matters resolved favorably, it
is therefore presumed to be forthcoming, even
unprompted, to provide whatever [Customs] deems
necessary to assist in their resolution, and the fact
that in that regard there has apparently been
considerable “resistance” throughout this case to
that not-unreasonable discovery request and the
“assistance” that the parent could have provided its
subsidiary to address necessary questions with
respect to concerns over nonmarket influences,
speaks volumes.
Id. In conclusion, the court held that “[a]ll of the foregoing
leads the court to doubt that accurate ascertainment of the
‘true’ value of the ‘price paid or payable’ at the first sale
level in the customs duty sense has been demonstrated in
this case.” Id.
Following our remand order, the trial court’s Meyer IV
opinion once again held that the lack of Meyer Holdings
documents was dispositive to Meyer’s case. The trial court
concluded that “[e]ven ignoring the fact that the claimed
transaction values involve inputs from a non-market-
economy country in the merchandise at issue, this court
still cannot ignore plaintiff ’s non-responsiveness to
defendant’s request for information during discovery.”
Meyer IV, 614 F.Supp.3d at 1380. The court also stated that
“[t]he fact that the government herein was not provided
with the financial information pertinent to plaintiff ’s
parent company hampered its ability to discern whether or
not the parent of the plaintiff provided any form of
assistance to reduce costs.” Id. Next, the trial court quoted
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MEYER CORPORATION, U.S. v. US 9
nearly the entirety of its analysis from Meyer II but noted
that it had “excis[ed] any inference of ‘nonmarket
consideration’ in accordance with the CAFC opinion.” Id.
The trial court concluded this opinion by stating:
[T]he prior analysis shows that plaintiff ’s failure to
provide the financial information requested by it
during discovery provided an independent reason
as to why Meyer could not demonstrate a true first-
sale value absent of influence—not from a
nonmarket-economy country per se—but from the
relationships of the related parties. And the
plaintiff had been forewarned by the court’s Meyer
I decision as to the importance of that financial
information but chose not to supplement its
discovery responses.
Id. at 1380–81.
3
We agree with Meyer that the trial court failed to
comply with our remand order instructing it to “reconsider
whether Meyer may rely on the first-sale price” by
disregarding the trial record and instead applying an
improper evidentiary presumption. The trial court’s
opinion makes clear that it suspected Meyer of being
dishonest in its reporting of “costs” for use in the “all costs
plus profit” test. See id. at 1379 (trial court repeating its
prior statement that, even ignoring non-market economy
effects, “the costs of the inputs from [China] are suspect”);
id. at 1380 (“[T]he foregoing leads the court to doubt that
accurate ascertainment of the ‘true’ value of the ‘price paid
or payable’ at the first sale level in the customs duty sense
has been demonstrated in this case.”). In reaching this
conclusion, the trial court cites no record evidence to
support its belief that Meyer inaccurately reported costs.
Rather, the court relied entirely on speculation that,
because Meyer did not produce the Meyer Holdings
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MEYER CORPORATION, U.S. v. US 10
financial documents, the documents might have shown
underreported costs.
During discovery, Meyer objected to the production of
Meyer Holdings’ documents on the grounds that it did not
have possession, custody, or control of such documents.
J.A. 33. There is nothing in the record to show that the
government ever objected to the lack of production or
pursued a motion to compel or subpoena against Meyer or
Meyer Holdings. See Appellant’s Br. 14 n.6. Further, other
record evidence seems to support Meyer’s position that it
did not possess Meyer Holdings’ documents. See, e.g., Meyer
II, 2021 WL 777788, at *8 (noting that Mr. Johnston,
Meyer’s former managing director, “averred that, despite
being related companies within the Meyer [g]roup,” each
separate company is “structured with different ‘silos’ of
business that operate independently of and competitively
with each other, and that” Meyer “was accountable for its
own profitability, independent of any other Meyer group
entity.”). Yet, without citing any of this record evidence, the
trial court presumed ill intent. The trial court mused that
“Meyer Holding[s] presumptively has had the ability to
influence the price paid or payable” and that Meyer
Holdings was “presumed to be forthcoming, even
unprompted, to provide whatever [Customs] deems
necessary to assist in their resolution.” Meyer IV,
614 F.Supp. 3d at 1380. The trial court accordingly found
that it “sp[oke] volumes” that Meyer exhibited
“considerable ‘resistance’ throughout this case to that not
unreasonable discovery request,” given “the ‘assistance’
that the parent could have provided its subsidiary to
address necessary questions.” Id.
The trial court’s language here is tantamount to the
discovery sanction of an adverse inference. Rule 37(b)(2)(A)
of the Court of International Trade states that if a party
“fails to obey an order to provide or permit
discovery, . . . the court . . . may issue further just orders”
including “directing that the matters embraced in the order
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or other designated facts be taken as established for
purposes of the action, as the prevailing party claims.”
Given that there were no discovery orders with which
Meyer failed to comply—a prerequisite for adverse
inferences under Rule 37(b)(2)(A)—the trial court had no
basis to speculate about what the Meyer Holdings
documents might have revealed, had they been produced.
While some statutory provisions that fall within the
purview of the Court of International Trade more freely
authorize the imposition of adverse inferences, assessing
transaction value for related parties under 19 U.S.C.
§ 1401a(b)(2)(B) is not one of them. C.f. Fine Furniture
(Shanghai) Ltd. v. United States, 748 F.3d 1365, 1370
(Fed. Cir. 2014) (explaining that, in the context of
countervailing and antidumping duties under 19 U.S.C.
§ 1677e, “the statute permits Commerce to apply an
adverse inference in selecting from among the facts
otherwise available when an interested party fails to
cooperate by not acting to the best of its ability to comply
with a request for information”).
Further, the trial court’s finding that Meyer could not
prove its case without Meyer Holdings financial documents
is particularly inappropriate because, in doing so, the trial
court ignored other record evidence produced by Meyer,
including sworn testimony from employees and an expert
opinion that was based on examination of company records.
The trial court did not grapple with any of this evidence: it
did not evaluate the credibility of the witnesses, weigh the
evidence that was before it, or explain why, as a matter of
law, that record evidence was or was not sufficient for
Meyer to meet its burden. Indeed, aside from the trial
court’s wholesale adoption of the government’s proposed
findings of fact in Meyer II, the court’s analysis does not
even acknowledge—in its original determination or on
remand—that there was other record evidence besides the
missing Meyer Holdings documents. See Meyer II, 2021 WL
777788, at *50–51; Meyer IV, 614 F. Supp. 3d at 1379–81.
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In our previous decision, we instructed the trial court
to “reconsider whether Meyer may rely on the first-sale
price.” Meyer III, 43 F.4th at 1333. It did not do so in any
meaningful way. Accordingly, we vacate and remand once
more.2 The trial court should evaluate, on the extensive
record before it, whether Meyer has met its burden to show
that its first-sale price is a viable transaction value under
19 U.S.C. § 1401a(b)(2)(B). As discussed above, there are
two alternate ways that Meyer may prove its case: the “all
costs plus profit” test and the “normal pricing practices”
test. See 19 C.F.R. § 152.103(l)(1). Because Meyer raised
both tests as possible bases for using first-sale price, see
J.A. 106, 108, so too should the trial court consider both
tests in its opinion. We note that this decision should not
be read as putting a thumb on the scale regarding the
outcome on remand. Rather, it is an acknowledgement that
Meyer was entitled to have its case heard on the merits of
the record it presented, not disposed of based on conclusory
speculation.
2 By ordering a remand for further consideration, we
reject Meyer’s argument that a new trial is necessarily
required. See Appellant’s Br. 43–46. Meyer had the
opportunity to present evidence during a weeklong trial,
after which the trial court adopted the government’s
proposed findings of facts and stated that Meyer’s facts
were “not inaccurate,” Meyer II, 2021 WL 777788 at *50,
but did not make extensive conclusions of law based on
those facts. The “extensive record” developed before the
trial court, that record is “more than sufficient for
conducting reconsideration.” Meyer IV, 614 F. Supp. 3d at
1381. Allowing for additional evidentiary proceedings
would only prolong this already protracted case. To the
extent that Meyer continues to seek a new trial, that
request is best directed to the trial court.
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B
Meyer also argues on appeal that this case requires us
to provide an interpretation of “the firm” as used in the “all
costs plus profit” test. See 19 C.F.R. § 152.103(l)(1) (“If it is
shown that the price is adequate to ensure recovery of all
costs plus a profit which is equivalent to the firm’s overall
profit realized over a representative period of time (e.g., on
an annual basis), in sales of merchandise of the same class
or kind, this would demonstrate that the price has not been
influenced.” (emphasis added)). Meyer notes that “[i]n an
uncodified policy statement interpreting this Regulation,
Customs has stated that the term ‘firm’ is ‘normally’
interpreted to be the parent company.” Appellant’s Br. 26;
see also id. at n.14 (citing Determining the Acceptability of
Transaction Value for Related Party Transactions (an
Informed Compliance Publication), U.S. Customs and
Border Protection (April 2007), at 9; J.A. 38–39). Meyer
asserts that this interpretation is incorrect, and the correct
interpretation is that “firm” refers to “the firm which
charged the price in the related party sale.” Id. at 26.
Accordingly, Meyer argues that “[s]ince the [Meyer
Holdings] financials could not be used in an ‘all costs plus
profits’ test, they lost their ‘consequence to the
determination of the action’ and became irrelevant.” Id. at
33.
We decline to address Meyer’s arguments about the
correct interpretation of “the firm” because the trial court’s
opinion was not based on any interpretation—correct or
incorrect—of that phrase. The government’s brief explains:
the trial court’s relevancy determination regarding the
Meyer Holdings financials “did not rest on [Customs’]
interpretation of the term ‘firm’ in 19 C.F.R.
§ 152.103(l)(1)(iii) as meaning a parent company, but
instead turned on whether the parent holding company
provided support or guidance that caused a market-
distortive effect on the first sale prices.” Appellee’s Br. 15.
We agree.
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In Meyer II, the trial court acknowledged Meyer’s
arguments regarding “the appropriate ‘firm’ to analyze
under the ‘all costs plus profit test,’” but noted that
regardless of whether Meyer’s argument was correct, it
wanted the Meyer Holdings financial statements in order
to assess whether Meyer had accurately reported the
“costs” arm of the “all costs plus profit” test. Meyer II,
2021 WL 777788, at *50 (“[W]hether it is true that for the
‘all costs plus profit’ test no [Customs] regulation requires
that the ‘firm’ mentioned in 19 C.F.R § 152.103(l)(1)(iii) be
the ‘parent’ of the importing party . . . , costs are obviously
critical to that determination, and the real costs of inputs
from [China] are suspect, given its status as a nonmarket
economy country.”). The Meyer IV opinion also did not rely
on any interpretation of “the firm” in its decisions, even
though the trial court appears to have voiced agreement
with Meyer on its proposed interpretation. Meyer IV, 614 F.
Supp. 3d at 1380 (trial court restating its own findings
from Meyer II and noting that “[i]t also found that ‘no
[Customs] regulation requires that the “firm” mentioned in
19 C.F.R. § 152.103(l)(1)(iii) be the “parent” of the
importing party.’”). However, because the trial court’s
opinion was not based on the challenged statutory term, we
reserve the question of proper interpretation of 19 C.F.R.
§ 152.103(l)(1)(iii) for another day.
IV
Because the Court of International Trade failed to
meaningfully evaluate whether Meyer was entitled to rely
on first-sale price in accordance with our remand order, we
again vacate and remand for the court to reconsider
whether Meyer may rely on the first-sale price. We need
not reach Meyer’s alternative argument that the trial court
should have also rejected Meyer’s second-sale price if it
found that the costs were inaccurate for first-sale price.
VACATED AND REMANDED
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COSTS
No costs.
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