United States v. Univar USA Inc.

Slip Op. 18-157
UNITED STATES COURT OF INTERNATIONAL TRADE
UNITED STATES,
Plaintiff,
v.
UNIVAR USA INC.,
Defendant.
Before: Mark A. Barnett, Judge
Court No. 15-00215
PUBLIC VERSION
MEMORANDUM AND ORDER
[Defendant’s Motion for Summary Judgment is denied.]
Dated: November 13, 2018
Reta E. Bezak, Trial Attorney, Commercial Litigation Branch, Civil Division, Department
of Justice, of Washington, DC, argued for Plaintiff. With her on the brief were Chad A.
Readler, Acting Assistant Attorney General, Jeanne E. Davidson, Director, Patricia M.
McCarthy, Assistant Director, Stephen C. Tosini, Senior Trial Counsel, and William G.
Kanellis, Trial Attorney.
Lucius B. Lau, White & Case LLP, of Washington, DC, argued for Defendant. With him
on the brief were Gregory J. Spak, Sadie L. Gardner, and Jessica E. Lynd.
Barnett, Judge: In this action, the United States of America (“Plaintiff” or the
“Government”) seeks to recover unpaid duties and a monetary penalty pursuant to
Section 592 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1592 (2012), 1 plus
interest, costs, and attorney fees, stemming from 36 entries of saccharin, allegedly
transshipped from the People’s Republic of China (“China”) through the Republic of
1 Further citations to the Tariff Act of 1930, as amended, are to the relevant portions of
Title 19 of the U.S. Code, 2012, edition, which are the same in all relevant respects to
the versions in effect when the entries were made.
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China (“Taiwan”), which Univar entered into the commerce of the United States
between 2007 and 2012. See generally Compl., ECF. No. 2. Before the court is
Defendant, Univar USA Inc.’s (“Univar” or “Defendant”) motion for summary judgment.
Confidential Univar’s Mot. For Summ. J., ECF No. 143, and Confidential Univar USA
Inc.’s Mem. of P. & A. in Supp. of its Mot. for Summ. J. (“Def.’s Mem.”), ECF No. 143-2.
Defendant seeks summary judgment with respect to all entries. See Def.’s Mem. at 1-2.
Alternatively, Defendant seeks dismissal of Plaintiff’s penalty claims, asserting that U.S.
Customs and Border Protection (“Customs” or “CBP”) failed to comply with the statutory
obligations of Section 592(b)(2), thereby depriving this court of subject matter
jurisdiction. Def.’s Mem. at 42-44; Confidential Univar USA Inc.’s Reply in Supp. of its
Mot. for Summ. J. (“Def.’s Reply”) at 19-21, ECF No. 161. The motion is fully briefed, 2
and the court held oral argument on May 23, 2018. See Docket Entry, ECF No. 192;
Oral Arg. Tr., ECF No. 196. For the reasons discussed below, Defendant’s motion for
summary judgment is denied.
2See Def.’s Mem.; Confidential Pl.’s Opp’n. to Univar’s Mot. For Summ. J. (“Pl.’s
Opp’n”), ECF No. 154; Def.’s Reply; Confidential Univar USA Inc.’s Suppl. Br. in Supp.
of its Mot. for Summ. J. (“Def.’s Suppl. Mem.”), ECF No. 184; Confidential Pl.’s Resp. to
Univar’s Suppl. Br. in Supp. of its Mot. for Summ. J. (“Pl.’s Resp. to Def.’s Supp.
Mem.”), ECF No. 188; Univar USA Inc.’s Comments Regarding Pl.’s Exhibit, Rule
801d(2) of the Federal Rules of Evidence, and Annotated Chart Two (“Def’s 2nd Suppl.
Mem.”), ECF No. 193; Pl.’s Mot. for Leave to Respond to Univar’s Suppl. Br. and Resp.
(“Pl.’s Resp. to Def’s 2nd Suppl. Mem.”), ECF Nos. 195, 198.
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B ACKGROUND
Evidentiary Objections
Pursuant to United States Court of International Trade (“USCIT”) Rule 56.3(a), a
motion for summary judgment must include a separate document that contains a “short
and concise statement, in numbered paragraphs, of the material facts as to which the
moving party contends there is no genuine issue to be tried.” The movant must follow
each statement with citation to evidence that would be admissible. USCIT Rule 56.3(c).
Citations may be to “particular parts of materials in the record,” such as “depositions,
documents, electronically stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only), admissions, interrogatory
answers, or other materials.” USCIT Rule 56(c)(1)(A). Pursuant to USCIT Rule
56(c)(2), “[a] party may object that the material cited to support or dispute a fact cannot
be presented in a form that would be admissible in evidence.”
In compliance with USCIT Rule 56.3, the parties have filed their proposed
statements of facts and supported those statements with citations to evidence. See
generally Confidential Univar’s Rule 56.3 Statement in Supp. of its Mot. For Summ. J.
(“DSOF”), ECF No. 143-3; Confidential Pl.’s Rule 56.3 Counterstatement of Fact
(“PCSOF”), ECF No. 154-1; Confidential Univar USA Inc.’s Rebuttal to Pl.’s Rule 56.3
Counterstatement (“Def.’s Resp. to PCSOF”), ECF No. 161-1; Confidential Univar USA
Inc.’s Suppl. Rule 56.3 Statement (“Suppl. DSOF”), ECF No. 184-1; Confidential Pl.’s
Conditional Suppl. Rule 56.3 Counterstatement of Fact (“Suppl. PCSOF”), ECF No.
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188-1. 3 	Plaintiff has cited numerous exhibits to support its statements of fact. See
generally PCSOF. 4 Univar objects to the admission of nearly all of Plaintiff’s exhibits on
the grounds of hearsay or relevance. The disputed evidence can be grouped in four
general categories.
3 Subsequent to Univar’s filing of the instant motion, the parties filed motions in limine.
See Mem. and Order (Mar. 2, 2018) (“Order on Mots. In Limine”), ECF No. 177
(resolving three motions in limine). After ruling on these motions, the court invited the
parties to file a joint status report or proposed order for amending or supplementing their
summary judgment papers. Id. at 36. The parties agreed that Univar would file a
supplemental brief, limited to 10 pages, to its summary judgment briefing. Stip. and
Proposed Joint Scheduling Order Concerning Suppl. Summ. J. Briefing at 2, ECF No.
180. Thereafter, Univar filed a supplemental brief consisting of 10 pages and appended
a separate statement of material facts as support. See Def.’s Suppl. Mem.; Suppl.
DSOF. Plaintiff requests that the court reject Defendant’s Supplemental Rule 56.3
statement as impermissible. Pl.’s Resp. to Def.’s Supp. Mem. at 2. The court’s order
inviting the parties to supplement their “summary judgment papers” was not limited to
briefs only, nor did the parties’ stipulation include such a limitation. Moreover, USCIT
Rule 56.3(a) requires that a party file its factual positions in a “separate, short and
concise statement.” For these reasons, the court will not reject Defendant’s
supplemental Rule 56.3 statement.
4 Plaintiff’s opposition memorandum includes 23 attachments. See Pl.’s Opp’n.,
Attachs. 1-23, ECF Nos. 154-3 to 154-25; see generally Decl. of Stephen C. Tosini
(“Tosini Decl.”), ECF No. 154-2. Some of the attachments include multiple numbered
deposition exhibits. The parties refer to Plaintiff’s attachments as “Ex.” or “Gov. Ex.”
See, e.g., PCSOF ¶ 220 (referring to Plaintiff’s attachment 12, which is Deposition
exhibit 11, as “Ex. 12”). For clarity and ease of reference, the court’s initial citation
refers to Plaintiff’s exhibits as “Attach.” and, where applicable, includes in parenthesis
the deposition exhibit number, i.e.: Pl.’s Attach __, (Dep. Ex. __). Any subsequent
citations are to the deposition exhibit number only. Additionally, where helpful to identify
the particular portion of an exhibit, the court provides the pin cite to the Bates Number,
ECF page number, or both. The court refers to Plaintiff’s supplemental exhibits in the
manner in which they have been identified, i.e.: Pl.’s Suppl. A1, etc. See Confidential
Pl.’s Suppl. App. in Supp. of its Opp’n to Univar’s Mot. for Sum. J., ECF No. 191.
During oral argument, Plaintiff proffered an additional exhibit, see Ex. 1, ECF No. 192,
to which the court refers as “Pl.’s OA Ex. 1.”
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The first category of evidence to which Univar objects includes emails sent by
Univar employees to Univar agents or third parties. For convenience, the exhibits, the
relevant corresponding source where Univar makes the objection, and a brief
description of the exhibit are set forth in the following table:
Table 1
Item
No.
Plaintiff’s Exhibit 	Brief Description 	Univar’s Objection
1 	Pl.’s Attach. 1 at Univar_011207,
ECF No. 154-3 at p. 4
Email from Hung-
yao Chin (“Mr.
Chin”) 5 to
Thomas Biggs
(“Mr. Biggs”) 6
Hearsay. Def.’s
Resp. to PCSOF
¶ 206
2 	Pl.’s Attach. 1 at Univar_014737,
ECF No. 154-3 at p. 9
Email from Mr.
Biggs to third
party
Hearsay. Def.’s
Resp. to
PCSOF ¶ 246
3 	Pl.’s Attach. 1 at Univar_066462,
ECF No. 154-3 at p. 13
Email from Mr.
Biggs to Mr. Chin
Hearsay. Def.’s
Resp. to PCSOF
¶ 205
4 	Pl.’s Attach. 2 (Dep. Ex. 162),
ECF No. 154-4 at p. 367
Email from a
Univar General
Manager to Mr.
Biggs and others
Hearsay. Def.’s
Resp. to PCSOF
¶ 227
5 	Pl.’s Attach. 2 (Dep. Ex. 163),
ECF No. 154-4 at p. 371
Email from a
Univar General
Manager to Mr.
Biggs
Hearsay. Def.’s
Resp. to PCSOF
¶¶ 225-226, 260
6 	Pl.’s Attach. 2 (Dep. Ex. 288),
ECF No. 154-4 at pp. 144-147
Emails from Mr.
Biggs and Mr.
Chin
Hearsay. Def.’s
Resp. to PCSOF
¶¶ 191-193
7 	Pl.’s Suppl. A7 (Dep. Ex. 215),
ECF No. 191 at p. 9
Email from a
Univar employee
to third party
Hearsay. Def.’s
Resp. to PCSOF
¶ 198
8 	Pl.’s Attach. 2 (Dep. Ex. 311),
ECF No. 154-4 at p. 268
Email from Mr.
Biggs to Mr. Chin
Hearsay. Def.’s
Resp. to PCSOF
¶ 210
5 Univar refers to Mr. Chin as its independent contractor. Def.’s Resp. to DSOF ¶ 135.
6 Mr. Biggs was the director of Univar’s International Sourcing Group. PCSOF ¶ 185;
Def.’s Resp. to PCSOF ¶ 185.
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9 	Pl.’s Attach. 2 (Dep. Ex. 316),
ECF No. 154-4 at p. 285
Email from Mr.
Biggs to third
party
Hearsay. Def.’s
Resp. to PCSOF
¶¶ 200, 244
10 	Pl.’s Attach. 2 (Dep. Ex. 312),
ECF No. 154-4 at p. 269
Email from Mr.
Chin to Mr. Biggs
Hearsay. Def.’s
Resp. to PCSOF
¶ 207
11 	Pl.’s Attach. 2 (Dep. Ex. 314),
ECF No. 154-4 at pp. 275-282
Email from a
Univar employee
attaching an
Application for
Kosher
Certification
Hearsay. Def.’s
Resp. to PCSOF
¶¶ 203, 213, 237
12 	Pl.’s Attach. 2 (Dep. Ex. 318),
ECF No. 154-4 at p. 292
Email from Mr.
Biggs to third
party
Hearsay. Def.’s
Resp. to PCSOF
¶ 212
13 	Pl.’s Attach. 2 (Dep. Ex. 323),
ECF No. 154-4 at p. 337
Email from a
Univar employee
to at least one
other Univar
employee
Hearsay. Def.’s
Resp. to PCSOF
¶ 217
14 	Pl.’s Attach. 2 (Dep. Ex. 327),
ECF No. 154-4 at p. 345
Email thread
between Univar
employees
Hearsay. Def.’s
Resp. to PCSOF
¶ 224
15 	Pl.’s Attach. 2 (Dep. Ex. 328),
ECF No. 154-4 at pp. 350-351
Univar internal
email
Hearsay. Def.’s
Resp. to PCSOF
¶ 242
16 	Pl.’s Attach. 2 (Dep. Ex. 329),
ECF No. 154-4 at p. 353
Email from a
Univar General
Manager to at
least one other
Univar employee
Hearsay. Def.’s
Resp. to PCSOF
¶ 228
The second category of evidence includes emails or other written
communications sent to Univar employees or agents by third parties:
Table 2
Item
No.
Exhibit 	Brief Description 	Objection
1 	Pl.’s Attach. 1 at UNIVAR_USCIT-
0531, ECF No. 154-3 at pp. 87-88
Email from
William Huang to
Mr. Chin
Hearsay. Def.’s
Resp. to PCSOF
¶ 186
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2 	Pl.’s Attach. 1 at Univar 13344-47,
ECF No. 154-3 at pp. 5-8
Email from Food
and Drug
Administration
(“FDA”) to a
Univar employee
Hearsay. Def.’s
Resp. to PCSOF
¶ 198
3 	Pl.’s Attach. 2 (Dep. Ex. 310),
ECF No. 154-4 at p. 266
Email from a third
party to a Univar
employee
Hearsay. Def.’s
Resp. to PCSOF
¶ 209
4 	Pl.’s Attach. 2 (Dep. Ex. 313),
ECF No. 154-4 at pp. 271-274
Fax from Mr.
Biggs to William
Huang
Hearsay. Def.’s
Resp. to PCSOF
¶ 211
5 	Pl.’s Attach. 2 (Dep. Ex. 315),
ECF No. 154-4 at p. 283
Production
process flow chart
Hearsay. Def.’s
Resp. to PCSOF
¶¶ 186, 203, 213, 237
6 	Pl.’s Attach. 2 (Dep. Ex. 317),
ECF No. 154-4 at p. 290
Email from a third
party to a Univar
employee
Hearsay. Def.’s
Resp. to PCSOF
¶ 208
7 	Pl.’s Attach. 2 (Dep. Ex. 322),
ECF No. 154-4 at p. 336
Email to a Univar
employee
Hearsay. Def.’s
Resp. to PCSOF
¶ 216
8 	Pl.’s Attach. 2 (Dep. Ex. 325),
ECF No. 154-4 at p. 343
Email from a third
party to a Univar
employee
Hearsay. Def.’s
Resp. to PCSOF
¶ 218
9 	Pl.’s Attach. 11 (Dep. Ex. 12),
ECF No. 154-13 at p. 4
Letter from U.S.
Immigration and
Customs
Enforcement
(“ICE”) to Univar
Hearsay. Def.’s
Resp. to PCSOF
¶ 220
The third category of evidence includes Univar’s internal documents, such as trip
notes, inspection reports, letters or memoranda, and a PowerPoint presentation:
Table 3
Item
No.
Exhibit 	Brief Description 	Objection
1 	Pl.’s Attach. 2 (Dep. Ex. 303),
ECF No. 154-4 at pp. 245-250
Mr. Biggs’s “2005
Korea-Taiwan
Trip Notes”
Hearsay. Def.’s
Resp. to PCSOF
¶ 235
2 	Pl.’s Attach. 2 (Dep. Ex. 306),
ECF No. 154-4 at pp. 258-261
Mr. Biggs’s 2008
“Korea-Taiwan
Visit notes”
Hearsay. Def.’s
Resp. to PCSOF
¶ 236-238
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3 	Pl.’s Attach. 2 (Dep. Ex. 297),
ECF No. 154-4 at p. 217
Inspection Report 	Hearsay. Def.’s
Resp. to PCSOF
¶ 190
4 	Pl.’s Attach. 2 (Dep. Ex. 298),
ECF No. 154-4 at p. 218
Inspection Report 	Hearsay. Def.’s
Resp. to PCSOF
¶ 190
5 	Pl.’s Attach. 2 (Dep. Ex. 179),
ECF No. 154-4 at p. 387-397
Univar Internal
Memorandum
Hearsay. Def.’s
Resp. to PCSOF
¶¶ 195-196
6 	Pl.’s Attach. 18 (Dep. Ex. 277),
ECF No. 154-20
Univar Internal
Letter
Hearsay. Def.’s
Resp. to PCSOF
¶ 239
7 	Pl.’s Attach. 2 (Dep. Ex. 292),
ECF No. 154-4 at p. 164
Univar
PowerPoint
Presentation
Hearsay. Def.’s
Resp. to PCSOF
¶ 221
The remaining evidence includes deposition testimony of two witnesses; an
affidavit and an email, including exhibits, of Special Agent Wally Tsui (“Mr. Tsui”), who
assisted in the investigation of the alleged transshipment; a 2017 version of the
Taiwan’s Customs Act; and statistical tables:
Table 4
Item
No.
Exhibit 	Brief Description 	Univar’s Objection
1 	Pl.’s Attach. 6 & Pl.’s Suppl. A3
(“Ritell Dep.”) at 56, 71-72, ECF
Nos. 154-8, 191
Dep. Excerpt of
Bruce Ritell
Hearsay; best
evidence rule. Def.’s
Resp. to PCSOF
¶ 190
2 	Pl.’s Attach. 8 (“Talmid Dep.”) at
53-54, ECF No. 154-10
Dep. Excerpt of
Rabbi Haim
Talmid
Hearsay. Def.’s
Resp. to PCSOF
¶ 219
3 	Aff. of Special Agent Wally Tsui in
Supp. of Pl.[’] s Opp’n to Univar’s
Mot. for Partial Summ. J. (“Tsui
Aff.”) ¶¶ 8-27, ECF No. 32-11
Affidavit 	Hearsay. Def.’s
Resp. to PCSOF
¶ 190
4 	Tsui Aff., Ex. 2, ECF No. 32-13 	Photographs 	Hearsay. Def.’s
Resp. to PCSOF
¶ 204
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5 	Pl.’s Attach. 14 (Dep. Ex. 129),
ECF No. 154-16 at p. 1
Email enclosing a
business card
Hearsay. Def.’s
Resp. to PCSOF
¶¶ 186, 199, 204
6 	Pl.’s Attach. 23, ECF No. 154-25 	Taiwan Customs
Act
Relevance. Def.’s
Reply at 9
7 	Pl.’s Resp. to Def.’s Mot. in Limine
to Exclude Taiwan’s Records
Showing Transshipment from
China Through Taiwan to the
United States, Ex. 1 (“Taiwan
Customs Tables”), ECF No. 145-1
Tables reflecting
imports of
saccharin from
China into Taiwan
and exports of
saccharin from
Taiwan to the
United States
Hearsay; Inadmissible
to Prove Habit. Def.’s
Resp. to PCSOF
¶ 201; Def.’s Mem. at
7-8; 24-27; see also
DSOF ¶ 42; PCSOF
¶ 42
Hearsay is an out of court statement offered “to prove the truth of the matter
asserted in the statement.” Fed. R. Evid. 801(c). Hearsay is inadmissible at trial unless
a federal statute, Federal Rule of Evidence, or other rule prescribed by the Supreme
Court provides otherwise. Fed. R. Evid. 802. The court may nonetheless “consider a
hearsay statement in passing on a motion for summary judgment if the statement could
be reduced to admissible evidence at trial or reduced to admissible form.” United
States v. Sterling Footwear, Inc., 41 CIT __, __, 279 F. Supp. 3d 1113, 1124-25 (2017)
(quoting Jones v. UPS Ground Freight, 683 F.3d 1283, 1293–94 (11th Cir. 2012)).
Indeed, more generally, “for summary judgment purposes, the inquiry is whether the
cited evidence may be reduced to admissible form, not whether it is admissible in the
form submitted at the summary judgment stage.” Id. at 1124 (citing USCIT Rule
56(c)(2)).
“A common type of statement that falls outside the hearsay definition, because it
is not offered for its truth, is a statement that is offered to show its effect on the
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recipient.” Bady v. Murphy-Kjos, 628 F.3d 1000, 1003 (8th Cir. 2011) (quoting Barrett v.
Acevedo, 169 F.3d 1155, 1163 (8th Cir. 1999)). Additionally, a statement that “is
offered against an opposing party and . . . was made by the party’s agent or employee
on a matter within the scope of that relationship and while it existed” is not hearsay.
Fed. R. Evid. 801(d)(2)(D). Likewise, if an opposing party creates an email
incorporating content created by other individuals such that the opposing party may be
said to have adopted the contents as true or believed to be true, such incorporated
content is not hearsay. See Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 454
F. Supp. 2d 966, 973 (C.D. Cal. 2006); Fed. R. Evid. 801(d)(2)(B) (a statement is not
hearsay if it is “offered against an opposing party and . . . is one the party manifested
that it adopted or believed to be true”). The court may also consider hearsay
statements that are specifically exempted from the hearsay rule. See Fed. R. Evid. 803,
804. Relevant here, any “statement[s] of the declarant’s then-existing state of mind,” 7
Fed. R. Evid. 803(3), and business records, 8 Fed. R. Evid. 803(6), are exceptions to the
hearsay rule.
7 Pursuant to Rule 803, “[a] statement of the declarant’s then-existing state of
mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such
as mental feeling, pain, or bodily health), but not including a statement of memory or
belief to prove the fact remembered or believed,” unless in circumstances not applicable
here, is exempted from the rule against hearsay. Fed. R. Evid. 803(3).
8 Rule 803(6) exempts from the hearsay rule,
A record of an act, event, condition, opinion, or diagnosis if:
(A) the record was made at or near the time by--or from information
transmitted by--someone with knowledge;
(B) the record was kept in the course of a regularly conducted activity of a
business, organization, occupation, or calling, whether or not for profit;
(C) making the record was a regular practice of that activity;
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As to the first category of evidence (Table 1), the emails sent by Univar agents or
employees are not hearsay and Univar’s objection is overruled. See Fed. R. Evid.
801(d)(2)(D). To the extent other content was incorporated into those emails, and to the
extent Univar’s agents or employees manifested that they adopted or believed that the
content was true, the incorporated content is admissible pursuant to Fed. R. Evid.
801(d)(2)(B). With respect to emails sent by Mr. Chin, to whom Univar refers as its
independent contractor, see DSOF ¶ 135; Def.’s Resp. to PCSOF ¶ 191, the court finds
that Mr. Chin was an agent of Univar for purposes of Fed. R. Evid. 801(d)(2)(D). First,
“the precise contractual relationship between the agent and the party against whom the
evidence is offered” is not determinative for purposes of Fed. R. Evid. 801(d)(2)(D).
Metro-Goldwyn-Mayer Studios, 454 F. Supp. 2d at 973-74. Second, notwithstanding its
assertion that Mr. Chin was an independent contractor, Univar itself referred to Mr. Chin
as “our representative.” Def.’s Mem., Attach. 29 (Univar Fed. R. Civ. P. 30(b)(6) Dep.)
114:11-12, ECF No. 143-5. Therefore, Mr. Chin’s emails are not hearsay.
Regarding emails or other written communications sent to Univar employees or
agents by third parties (Table 2), Plaintiff refers to those emails and communications not
to prove the matters asserted therein, i.e., that the saccharin was being transshipped
from China through Taiwan, but, instead, to address Univar’s level of culpability.
(D) all these conditions are shown by the testimony of the custodian or
another qualified witness, or by a certification that complies with Rule
902(11) or (12) or with a statute permitting certification; and
(E) the opponent does not show that the source of information or the
method or circumstances of preparation indicate a lack of trustworthiness.
Fed. R. Evid. 803(6).
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Compare Pl.’s Opp’n at 4-6, 15-22 (discussing evidence concerning country of origin),
with Pl.’s Opp’n at 23-26 (discussing evidence concerning Univar’s gross negligence in
ascertaining the country of origin), and Table 2. At oral argument, Plaintiff clarified that
it presented certain evidence to demonstrate Univar’s awareness of its supplier’s
asserted lack of a Taiwanese production facility and Univar’s actions in the context of
reasonable care. See Oral Arg. Questions (May 18, 2018) ¶ 5, ECF No. 190; Oral Arg.
Tr. at 22-24 (discussing Pl.’s Attach. 2 (Dep. Exs. 310, 315, 317, 322)). Defendant had
no objection to the admissibility of those exhibits for that limited purpose. Oral Arg. Tr.
at 29-30. Therefore, Univar’s objection to emails or other communications sent by third
parties to Univar’s employees or agents is overruled to the extent that this evidence is
offered for the limited purpose of showing its effect on the recipient and Univar’s
knowledge and state of mind with regard to saccharin production in Taiwan. See Bady,
628 F.3d at 1003; Metro-Goldwyn-Mayer Studios, 454 F. Supp. 2d at 974.
Similarly, Univar’s internal documents, such as trip notes, inspection reports,
letters or memoranda, and a PowerPoint presentation (Table 3) are admissible pursuant
to Fed. R. Evid. 801(d)(2)(D). The director of Univar’s International Sourcing Group, Mr.
Biggs, who had the “ultimate authority within Univar [] to approve [foreign] suppliers,”
took notes on his trips to Taiwan in 2005 and 2008 and authenticated those trip notes
during his deposition. See Pl.’s Attach. 2 (“Biggs Dep.”) 69:14-21 (discussing Mr.
Biggs’s authority at Univar), 128:16-18, 133:3-12 (discussing Dep. Ex. 303), 139:16-
140:9 (discussing Dep. Ex. 306), ECF No. 154-4. The letter, memoranda, and
PowerPoint presentation bear Univar’s company name or logo and were composed and
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shared by its agents or employees. Metro-Goldwyn-Mayer Studios, 454 F. Supp. 2d at
974. These items fall squarely within the ambit of Fed. R. Evid. 801(d)(2)(D). 9
As to the remaining evidence set forth in Table 4, one item is an excerpt from the
deposition testimony of Rabbi Haim Talmid of the Orthodox Union, a kosher certification
agency. See Talmid Dep.; Biggs Dep. 217:19-20; Table 4 Item No. 1. 	From 2005 to
2013, the Orthodox Union certified the subject saccharin as kosher. See DSOF ¶ 115;
PCSOF ¶ 115. Rabbi Talmid testified that he flew to Taiwan three times to inspect the
saccharin factory of Univar’s supplier so that the Orthodox Union could continue to
certify the saccharin as kosher. Talmid Dep. 53:1-68:13. On each occasion, Rabbi
Talmid was told he could not inspect the plant because, respectively, the plant was shut
down, there was a dangerous flood, or there was dangerous construction preventing
access to the factory. Id. Univar objects to Rabbi Talmid’s testimony concerning his
conversations with third parties regarding the reasons for the inability to access the
factory as inadmissible hearsay. Def.’s Resp. to PCSOF ¶ 219. Plaintiff is not offering
the testimony to prove that the factory was, indeed, shut-down for a period of time, or
9 Deposition Exhibit 297 is a 2007 inspection report by Univar's European affiliate and
Deposition Exhibit 298 is a 2012 inspection report by Univar. See Dep. Exs. 297, 298.
Mr. Biggs testified that Univar normally utilizes inspection reports for its food grade
products. Biggs Dep. 113:10-16. Specifically in the context of Deposition Exhibit 298,
he testified that Univar “had a consistent process, whether it was from Europe or from
the [United States] or from one of [its] China colleagues” in completing the inspection
reports. Id. Because these inspection reports are prepared by Univar’s employees
based on their inspections, they are opposing party statements pursuant to Rule
801(d)(2)(D). Alternatively, based on Mr. Biggs’s testimony, these reports could be
reduced to admissible form as business records pursuant to Rule 803(6). See Biggs
Dep. 111:15-112:11, 113:5-16.
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the existence of a flood or construction near the factory. See PCSOF ¶ 219. Rather,
the testimony is offered to prove Univar’s knowledge or state of mind during this
relevant time-frame with respect to the origin of its product. See id.; Oral Arg. Tr. at 37
(“[I]t goes to Univar's understanding of where their product was coming from.”).
Therefore, the objection is overruled.
Plaintiff also relies on the deposition testimony of Bruce Ritell (“Mr. Ritell”) of Rit-
Chem, a U.S. importer who purchased saccharin from High Trans Corporation (“HTC”),
a Taiwanese producer, from 2004 to 2016. See Ritell Dep. 25:14-19, 30:21-31:4, 70:8-
71:6; Table 4 Item No. 2. The Government relies on Mr. Ritell’s testimony that Rit-
Chem was “the sole [U.S.] purchaser of saccharin from HTC during [the] relevant time
period.” PCSOF ¶ 190 (citing Ritell Dep. at 72-73). In the cited testimony, Mr. Ritell
references an “exclusivity agreement” between HTC and Rit-Chem, and further testified
as to his knowledge of HTC’s production capacity and annual output. See Ritell Dep.
72:2-73:18. Univar objects to the Government’s reliance on Mr. Ritell’s recollection of
an “exclusivity agreement” and invokes the best evidence rule. See Def.’s Resp. to
PCSOF ¶ 190 (citing, inter alia, Fed. R. Evid. 1002); see also Oral Arg. Tr. 47-48. The
Government points out that in addition to the exclusivity agreement, Mr. Ritell testified
as to his personal knowledge of HTC’s annual production of saccharin, and the degree
to which Rit-Chem and HTC’s other customers were responsible for purchasing that
production amount. Oral Arg. Tr. at 86.
To the extent that the Government relies on Mr. Ritell’s recollection of an
exclusivity agreement, Univar’s objection is sustained. Rule 1002 requires production of
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the original of a document, such as an exclusivity agreement, to prove its contents. See
Fed. R. Evid. 1002. Rule 1004 provides circumstances in which production of an
original is excused and other evidence of the content of a writing is admissible;
however, Plaintiff has not asserted that those circumstances exist here. 	Univar did not
object to the remaining portions of Mr. Ritell’s testimony. See Ritell Dep. 72:1-16-73:3-
18; Def.’s Resp. to PCSOF ¶ 190. Therefore, the court will consider the remaining
testimony.
Concerning the affidavit of Agent Tsui, 10 Univar objects to paragraphs 8 through
27 and exhibit 2 on hearsay grounds. See Def.’s Resp. to PCSOF ¶ 190; Table 4 Item
Nos. 3-4. Pursuant to USCIT Rule 56(c)(4), “[a]n affidavit or declaration used to support
or oppose a motion must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is competent to testify on
the matters stated.” The court notes that the affidavit is made under “penalty of perjury”
and is said to be “true and correct.” Tsui Aff. at 15; 28 U.S.C. § 1746 (governing
unsworn declarations made under penalty of perjury). There is no indication that Agent
Tsui is not “competent” to testify; thus, the issue is whether the affidavit is based on
10 Agent Tsui “was a Special Agent with the Department of Homeland Security (DHS),
U.S. Immigration and Customs Enforcement (ICE), Homeland Security Investigations
(HSI), from 2004 through 2015.” Tsui Aff. ¶ 1. His duties included “the investigation of
. . . customs violations involving illegal entry of goods . . . into the United States.” Id.
He “was assigned to the Office of International Affairs, ICE Attaché in Hong Kong from
2009 through 2013, with an area of investigative responsibility that encompassed Hong
Kong, Taiwan and Macau.” Id. ¶ 2.
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personal knowledge and states “facts that would be admissible in evidence.” USCIT
Rule 56(c)(4).
The court finds that paragraphs 10, 11, and 13 through 16 are not hearsay
because they convey information based on Agent Tsui’s personal knowledge and
observation. See Tsui Aff. ¶¶ 10-11, 13-16 (discussing Agent Tsui’s visits to Taiwan in
April and June 2010, the purpose of his visits, and his personal observations). In
contrast, paragraphs 8, 9, 12, and 17 through 27 recount Agent Tsui’s telephone and
email conversations with Teddy Weng (“Mr. Weng”) from HTC concerning HTC’s
corporate and manufacturing office locations, its corporate officers’ identities, the
identity of its U.S. client, and, largely, HTC’s relationship with Univar’s saccharin
supplier. 	Id. ¶¶ 8-9, 12, 17-27.
The Government acknowledged during oral argument that to the extent any of
those paragraphs convey information from HTC about HTC’s relationship with Univar’s
saccharin supplier, they constitute hearsay. Oral Arg. Tr. at 24. The Government
asserted that it does not intend to have a representative of HTC testify at trial. Id.
Thus, those hearsay statements could not be reduced to admissible form. The
Government argued, however, that this evidence is nonetheless admissible pursuant to
the residual exception of Fed. R. Evid. 807. Id. at 25.
Pursuant to Rule 807, a hearsay statement not otherwise covered by a hearsay
exception is admissible if:
(1) the statement has equivalent circumstantial guarantees of
trustworthiness;
(2) it is offered as evidence of a material fact;
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(3) it is more probative on the point for which it is offered than any
other evidence that the proponent can obtain through reasonable
efforts; and
(4) admitting it will best serve the purposes of these rules and the
interests of justice.
Fed. R. Evid. 807(a). 11 The drafters of the rule “intended that the residual hearsay
exceptions will be used very rarely, and only in exceptional circumstances.” Fed. R.
Evid. 803(24) advisory committee’s note to 1974 Enactment. 12 When admitting
evidence pursuant to Rule 807, the court must make detailed findings concerning the
facts and circumstances that indicate that the statement has a sufficiently high degree
of trustworthiness justifying its admission. See id.; F.T.C. v. Figgie Int’l, Inc., 994 F.2d
595, 608 (9th Cir. 1993) (“District courts must make detailed findings when admitting
evidence under Rule [807].”). 13
The court recognizes that the Government is offering paragraphs 8, 9, 12, and 17
through 27 of Agent Tsui’s affidavit as evidence of material facts, satisfying the second
11 Rule 807 also has a notice requirement, which is not at issue here. Fed. R. Evid.
807(b).
12 In 1997, the contents of Rule 803(24) and 804(b)(5) were combined and transferred
to Rule 807. Fed. R. Evid. 807 advisory committee’s note to 1997 amendment.
13 Factors that may weigh on the trustworthiness inquiry can vary widely and
include:
whether the declarant had a motivation to speak truthfully or otherwise;
the spontaneity of the statement[;] . . . whether the statement was under
oath; whether the declarant was subject to cross-examination at the time
the statement was made; the relationship between the declarant and the
person to whom the statement was made; whether the declarant has
recanted or reaffirmed the statement; whether the statement was recorded
and particularly whether it was videotaped; and whether the declarant’s
firsthand knowledge is clearly demonstrated.
2 Kenneth S. Broun, McCormick on Evidence § 324 (7th Ed. 2013) (footnotes omitted).
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prong of Rule 807. See Fed. R. Evid. 807(2); PCSOF ¶¶ 190, 199, 202, 204. The
Government suggests that the statements in those paragraphs are “more probative on
the point[s] for which [they are] offered than any other evidence that the proponent can
obtain through reasonable efforts” because the Government attempted to contact HTC
personnel through the issuance of a letter rogatory but received an incomplete
response. See Fed. R. Evid. 807(3); Oral Arg. Tr. at 24; Pl.’s Mot. for Leave to File A
Status Report and Status Report, Ex. B, ECF Nos. 175, 175-2 (HTC’s incomplete
response to letter rogatory). Of concern to the court, however, is a lack of adequate
explanation for why Mr. Weng’s statements to Agent Tsui have “equivalent
circumstantial guarantees of trustworthiness” to any of the other hearsay exceptions.
See Fed. R. Evid. 807(a). The Government contends that the affidavit “recount[s] the
contents of the reports of investigation, which were made contemporaneous[ly] and with
his visits and his discussions with those individuals.” Oral Arg. Tr. at 25. In other
words, according to the Government, these statements offer “equivalent circumstantial
guarantees of trustworthiness” to the hearsay exception set forth in Rule 803(8)(A)(iii).
Rule 803(8)(A)(iii) exempts from the hearsay rule “[a] record or statement of a public
office if [] it sets out . . . in a civil case . . ., factual findings from a legally authorized
investigation.” Fed. R. Evid. Rule 803(8)(A)(iii).
A review of Agent Tsui’s reports of investigation (“ROI”) demonstrates that the
paragraphs in his affidavit merely introduce the information contained in the ROI.
Compare Tsui Aff. ¶¶ 8-9, 12, 17-27, with Tsui Aff., Ex. 1 (ROI) at 63-64, ECF No. 32-
12; see also Tsui Aff. ¶ 5 (stating that the ROI contains Agent Tsui’s “contemporaneous
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recordation of events related to the Univar investigation.”) The paragraphs in the
affidavit and the ROI appear to be merely a transcript of Agent Tsui’s interview with Mr.
Weng. Without further information on the record, the court cannot make the detailed
findings regarding the “special facts and circumstances which, in the court’s judgment,
indicate[]” that Mr. Weng’s statements to Agent Tsui have “a sufficiently high degree of
trustworthiness and necessity to justify [their] admission;” therefore, the court sustains
Univar’s objections with respect to those paragraphs. See Fed. R. Evid. 803(24)
advisory committee’s note to 1974 Enactment; F.T.C., 994 F.2d at 608.
The court likewise sustains Univar’s objection concerning the email authored by
Agent Tsui and the attachment therein. See Dep. Ex. 129; Def.’s Resp. to PCSOF
¶¶ 186, 199, 204; Table 4 Item No. 5. Agent Tsui’s email contains, as an attachment, a
purported “business card” of William Huang (“Mr. Huang”) that lists Mr. Huang as the
president of Long Hwang Chemical Co. (“LH Chemical”) and Lung Huang Trading
Company, Ltd. (“LH Trading”). Dep. Ex. 129. The Government is offering this business
card to show the truth of the matter asserted therein—that Mr. Huang was the president
of both companies—and to establish the address for those companies. See PCSOF ¶¶
186, 199, 204; Oral Arg. Tr. at 20, 21, 29. Plaintiff has offered no justification why this is
not hearsay. Plaintiff argues that this document is nonetheless admissible to impeach
Mr. Huang’s testimony regarding the location of the saccharin production facility and his
lack of affiliation with LH Chemical. See Pl.’s Resp. to Def.'s 2nd Suppl. Mem. at 4
(citing Fed. R. Evid. 613(b)). Rule 613(b) permits introduction of “extrinsic evidence of a
witness’s prior inconsistent statement” under certain circumstances. Fed. R. Evid.
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613(b) (emphasis added). In this email, Agent Tsui states that he received the business
card from a “Taiwan source.” Dep. Ex. 129. In his affidavit, he explains that the Taiwan
source was Mr. Weng. 14 See Tsui Aff. ¶ 8, 27. Therefore, the Government has not
shown that this exhibit contains a statement by Mr. Huang, such that it would be
admissible for impeachment purposes pursuant to Rule 613(b).
With respect to Exhibit 2 to Agent Tsui’s affidavit, the court, pursuant to its
discretion, may admit photographs as substantive or illustrative evidence, provided that
the proponent lays a proper foundation for the photographs. See United States v. May,
622 F.2d 1000, 1007 (9th Cir. 1980); Fed. R. Evid. 901(a). Mr. Tsui’s affidavit states
that Exhibit 2 includes “true and correct photographs of the site that [he] visited [in June
2010] from Google maps.” Tsui Aff. ¶ 15. Thus, the photographs are illustrative of his
visit, properly authenticated, and therefore admissible.
The remaining evidentiary objections of Univar are based on relevance. See
Table 4 Item Nos. 6-7. The Government relies on certain provisions of the Taiwan
Customs Act, as amended on January 18, 2017, to establish import and export
declaration requirements in Taiwan as they pertain to the 2009-2012 saccharin entries.
See PCSOF ¶ 58, 62-63; Pl.’s Attach. 23; Table 4 Item No. 6; see also Pl.’s Opp’n at 16
14 “To satisfy the requirement of authenticating or identifying an item of evidence, the
proponent must produce evidence sufficient to support a finding that the item is what the
proponent claims it is.” Fed. R. Evid. 901(a). One way of authenticating an item of
evidence is through the testimony of a witness with knowledge stating that “that an item
is what it is claimed to be.” Fed. R. Evid. 901(b)(1). The Government has failed to
authenticate Exhibit 129 because Mr. Tsui does not have personal knowledge that the
business card belongs to Mr. Huang. Rather, the extent of his knowledge is that Mr.
Weng produced the business card.
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(citing Taiwan Customs Act, arts. 10, 16, 18, 44). Univar objects to the relevance of
Taiwan Customs Act, as amended on January 18, 2017, to establish the status of
Taiwanese law during the 2009 to 2012 time period. Def.’s Reply at 9. During oral
argument, the Government provided a print-out from the Global Legal Information
Network displaying a history of the revisions to this Act, but asserted it had difficulty
obtaining the English translation of the language of the amendments. See Oral Arg. Tr.
at 10-11; Pl.’s OA Ex. 1. The Government’s new exhibit shows, and both Univar and
the Government acknowledge, that only Article 10 of this Act has been amended since
2012. See Pl.’s OA Ex. 1; Def.’s 2nd Suppl. Mem. at 2; Oral Arg. Tr. at 10-11.
Relevant evidence is that which “has any tendency to make a fact more or less
probable than it would be without the evidence; and . . . the fact is of consequence in
determining the action.” Fed. R. Evid. 401. Because the court cannot ascertain
whether the current language of Article 10 is substantively the same as the language of
Article 10 as it existed in the relevant period, the current version is irrelevant and,
therefore, inadmissible. The court overrules Univar’s objection with respect to the
remaining provisions of the Taiwan Customs Act.
During the course of discovery, Plaintiff procured four versions of tables from the
Department of Investigation, Customs Administration, Ministry of Finance, Republic of
China (“Taiwan Customs”) that purport to reflect imports of saccharin from China into
Taiwan by LH Chemical and exports of saccharin from Taiwan to the United States
made by LH Trading during the period 2009 to 2012. 	DSOF ¶ 42; PCSOF ¶ 42;
Taiwan Customs Tables; Table 4 Item No. 7. While these Taiwan Customs Tables
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concern only imports and exports to and from Taiwan from 2009 to 2012, Plaintiff seeks
to rely on this evidence as relevant to the shipments in 2007 and 2008, asserting they
prove a habit of transshipment by Mr. Huang. 15 See Pl.’s Opp’n at 17-19. Univar
objects to the admissibility of the Taiwan Customs Tables for this purpose. See Def.’s
Mem. at 24-27; Def.’s Reply at 5-8.
Rule 406 provides that
[e]vidence of a person’s habit or an organization’s routine practice may be
admitted to prove that on a particular occasion the person or organization
acted in accordance with the habit or routine practice. The court may
admit this evidence regardless of whether it is corroborated or whether
there was an eyewitness.
Fed. R. Evid. 406. “[B]efore a court may admit evidence of habit, the offering party must
establish the degree of specificity and frequency of uniform response that ensures more
than a mere ‘tendency’ to act in a given manner, but rather, conduct that is ‘semi-
automatic’ in nature.” Simplex, Inc. v. Diversified Energy Sys., Inc., 847 F.2d 1290,
1293 (7th Cir. 1988); see also Fed. R. Evid. 406 advisory committee’s note to the 1972
proposed rules (“The doing of the habitual acts may become semi-automatic in nature”).
The Government has failed to establish that the Taiwan Customs Tables
demonstrate conduct by Mr. Huang or his purported companies that is “‘semi-automatic’
in nature.” The Taiwan Customs Tables indicate that between 2009 and 2011, LH
Chemical imported from China 20 shipments of sodium saccharin into Taiwan from five
15 Between 2007 and 2012, Univar made 36 entries of saccharin into the United States.
PCSOF ¶ 181; Def.’s Resp. to PCSOF ¶ 181; see also DSOF ¶ 2; Gov’s Resp. to DSOF
¶ 2. Univar made 20 entries in 2007 and 2008 and 16 entries between 2009 and 2012.
DSOF ¶¶ 13, 48; PCSOF ¶¶ 13, 48.
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different sellers at two different ports of entry. See Taiwan Customs Tables at ECF p. 5.
The mesh sizes (reflecting the particle size), quantities, and weight of these imports
vary. See id. The Taiwan Customs Tables also indicate that between 2009 and 2012,
LH Trading exported 16 shipments of sodium saccharin to the United States, and Univar
was the importer. Taiwan Customs Tales at ECF p. 6. The Government argues that
these tables, which represent “the evidence of transshipment between 2009 and 2012”
are “relevant regarding the alleged transshipment of pre-2009 entries.” Pl.’s Opp’n at
17. The activities of LH Chemical and LH Trading, during the 2009-2012 period, do not
reflect the type of uniform conduct that would suggest a habit or routine practice for
purposes of Rule 406. Notwithstanding the fact that LH Chemical imported from China
and LH Trading exported to the United States, differences in the shipments—including
different suppliers and different ports—make the Taiwan Customs Tables insufficiently
probative with respect to the 2007 and 2008 entries. Therefore, the court sustains
Univar’s objection to the use of these tables to establish a habit of Mr. Huang or routine
practice of his purported companies relative to the earlier time period.
Lastly, the Government objects to the admissibility of an affidavit upon which
Univar relies in support of its summary judgment motion. See DSOF ¶ 60; PCSOF
¶ 60; Def.’s Mem., Attach. 38 (Aff. of Sun, Chia Ling) (“Sun Aff.”), ECF No. 143-5.
Univar relies on the affidavit of Chia Ling Sun (“Ms. Sun”), a branch manager at ECI
Taiwan Co. Ltd., which is a subsidiary of Expeditors International, a global “logistics and
freight forwarding company.” Sun. Aff. ¶ 1. Univar relies on Ms. Sun’s affidavit to
establish a definition of the “import declaration date” as reflected in the Taiwan Customs
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Tables and the length of time it typically takes for goods to clear customs in Taiwan.
See Def.’s Mem. at 9-12.
Ms. Sun opines that “to the best of [her] knowledge, the import declaration date is
the date on which the customs documentation (the ‘declaration’) is submitted to the
Taiwanese customs authority with respect to a particular shipment of imported goods.”
Sun Aff. ¶ 3. According to Ms. Sun, “[t]hese documents are normally submitted when
the shipment arrives in Taiwan,” and “[o]nce goods arrive in Taiwan by ship, it typically
takes four to five working days for those goods to clear customs and an additional one
working day for those cleared goods to be delivered to a local consignee.” Id. ¶ 3-4.
Ms. Sun concluded that “to the best of [her] knowledge, it typically takes six working
days for goods to clear customs and be delivered locally after arrival in Taiwan by ship.”
Id. ¶ 4.
Plaintiff objects to Univar proffering Ms. Sun’s “undisclosed expert report in
conjunction with its motion for summary judgment,” but has no objection to Univar
bringing Ms. Sun “to the United States for deposition and trial.” PCSOF ¶ 60; Pl.’s
Opp’n at 3 n.1. 16 At oral argument, Univar maintained that Ms. Sun is a lay witness,
within the ambit of Rule 701, who may permissibly opine upon matters within her
16 Plaintiff states that “Univar proffers testimony from three previously undisclosed
Taiwanese expert witnesses,” but objects only to Ms. Sun’s affidavit. See Pl.’s Opp’n at
3 n.1 (citing Sun Aff.; Def.’s Mem., Attach. 40 (Decl. of Chen Che-Hung), ECF No. 143-
5 at pp. 842-44; Def.’s Mem., Attach. 40 (Written Test. of Secretary General, Kaohsiung
Yuan City Chamber of Commerce) (“Chamber of Commerce Test.”), ECF No. 143-5 at
pp. 845-46); DSOF ¶¶ 131-133; PCSOF ¶¶ 131-133 (not disputing Univar’s statements
of facts for which Univar cites Attachment 40 as evidence).
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personal knowledge. Oral Arg. Tr. at 6-7. The Government countered that Ms. Sun is
an expert, within the ambit of Rule 702, whose testimony is purely based on her
experience at Expeditors International. Oral Arg. Tr. at 8-9.
Rule 701 permits a lay witness to testify on matters “rationally based on the
witness’s perception,” helpful to a clear understanding of the determination of a fact in
issue, and “not based on scientific, technical, or other specialized knowledge within the
scope of Rule 702.” Fed. R. Evid. 701. The rule was amended in 2000 to add the latter
portion “to eliminate the risk that the reliability requirements set forth in Rule 702 will be
evaded through the simple expedient of proffering an expert in lay witness clothing.” 17
Fed. R. Evid. 701 advisory committee’s note to 2000 amendments. Nevertheless, “the
line between expert testimony under [Rule] 702 ... and lay opinion testimony
under [Rule] 701 ... is not easy to draw.” Kahrs Int’l, Inc. v. United States, 33 CIT 1297,
1302 (2009) (quoting United States v. Ayala–Pizarro,407 F.3d 25, 28 (1st Cir. 2005)).
Many courts, including the U.S. Court of International Trade, “have permitted
specialized opinion testimony, without first qualifying the witness as an expert, because
‘the particularized knowledge that the witness has [is derived] by virtue of his or her
position in the business.’” Kahrs Int’l, 33 CIT at 1302 (alteration in original) (citations
omitted) (quoting Fed. R. Evid. 701 advisory committee’s note to 2000 amendments);
see also Lerner New York, Inc. v. United States, Slip-Op. 11-149, 2011 WL 6019334
(CIT Dec. 5, 2011) (citing Fed. R. Evid. 701 advisory committee’s note to 2000
17 Pursuant to Rule 702, an expert is “[a] witness who is qualified as an expert by
knowledge, skill, experience, training, or education.” Fed. R. Evid. 702.
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amendments). Pursuant to this standard, the court finds that Ms. Sun’s affidavit is not
admissible as opinion testimony by a lay witness.
Based on her 10-year employment with Expeditors International, Ms. Sun states
that she has “developed a deep familiarity with Expeditors’ day-to-day customs
operations in Taiwan by assisting importers and exporters through processing
documentation, calculating duties, arranging for inspections, [and] arranging for
delivery.” Sun Aff. ¶ 1. Ms. Sun, however, indicates that her experience is limited to the
Taipei location and she does not provide any indication of having personal knowledge
relevant to food additive or chemical import/export practices. While Ms. Sun provides
her opinion on questions posed by Univar’s counsel, she provides no linkage between
those opinions and her personal knowledge for the court to consider. Thus, Ms. Sun’s
affidavit does not constitute lay witness testimony admissible pursuant to Rule 701.
See Fed. R. Evid. 701(a) (lay witness’s testimony must be “rationally based on the
witness's perception”). Moreover, Ms. Sun’s affidavit may not be considered as expert
testimony because Univar has neither sought to qualify it as such and has not disclosed
it in accordance with the court’s scheduling order. See Order (Nov. 25, 2015), ECF No.
16. Accordingly, the court will not consider Ms. Sun’s affidavit for purposes of ruling on
Univar’s summary judgment motion.
To the extent the parties’ remaining evidentiary objections concerned issues
already addressed in the court’s order resolving previously filed motions in limine, that
order remains undisturbed and the court need not re-address those objections here.
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See Order on Mots. In Limine (addressing admissibility of Taiwan Customs Tables
concerning the 2009 to 2012 entries and expert reports).
Facts Not Genuinely in Dispute
Upon review of the parties’ facts (and supporting exhibits) and taking into
account the above evidentiary rulings, the court finds there is no genuine dispute with
the following material facts. 18
A. Saccharin and the Antidumping Duty Order
Saccharin is a non-nutritive sweetener generally used in beverages and foods,
personal care products, table top sweeteners, and animal feeds. Saccharin from the
People’s Republic of China, 68 Fed. Reg. 40,906, 40,907 (Dep’t Commerce July 9,
2003) (notice of antidumping duty order) (“AD Order”). There are four primary chemical
compositions of saccharin: (1) sodium saccharin; 19 (2) calcium saccharin; (3) acid or
insoluble saccharin; and (4) research grade saccharin. Id. Acid saccharin may refer “to
a crude form of the product that is . . . further processed to make sodium saccharin.”
Pl.’s Attach. 20 (Expert Report of Henry B. McFarland, Ph.D.) (“McFarland Report”) at 2,
18 Citations are provided to the relevant paragraph number of the undisputed facts and
response; internal citations generally have been omitted. Citations to the record are
provided when a fact is controverted based on objections to the cited evidence, the
court has overruled the objection, and the fact is supported by the proponent’s cited
evidence. Citations to the record are also provided when a fact, though not admitted by
both parties, is uncontroverted by record evidence. See USCIT Rule 56(c)(3)(“The
court need consider only the cited materials, but it may consider other materials in the
record.”).
19 Chemists refer to “sodium saccharin” and “saccharin sodium” interchangeably. Def.’s
Mem., Attach. 33 (Expert Report of Leonard J. Chyall, Ph.D) (“Chyall Report”) ¶ 28,
ECF No. 143-5.
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ECF No. 154-22; see also Chyall Report ¶ 38 (stating that a chemical process to
prepare sodium saccharin may use acid saccharin as the starting point).
The “mesh size” of saccharin refers to the particle size of the product. Def.’s
Mem., Attach. 36 (Expert Report of Michael Coffield) ¶ 7, ECF No. 143-5. “A common
method used to characterize the particle size . . . is to pass the material through a
standard wire mesh screen.” DSOF ¶ 83; PCSOF ¶ 83. “[M]esh screen openings . . .
are classified according to the number of openings along a linear inch of the mesh”; “the
larger the numerical value of the mesh size, the smaller the opening.” DSOF ¶¶ 83, 85;
PCSOF ¶¶ 83, 85. Thus, a high numerical value of the mesh size corresponds with
small physical particles of the material. DSOF ¶ 86; PCSOF ¶ 86.
In July 2003, the U.S Department of Commerce (“Commerce”) issued an
antidumping duty order covering saccharin from China. PCSOF ¶ 179; Def’s Resp. to
PCSOF ¶ 179; see also AD Order. At all times relevant to this action, the China-wide
antidumping duty rate for imported saccharin was 329.33 percent or 329.94 percent.
PCSOF ¶ 180; Def.’s Resp. to PCSOF ¶ 180.
B. Univar and the Subject Entries
Univar 20 “is the leading chemical distributor in the United States, providing more
chemical products and related services than any other company in the marketplace.”
PCSOF ¶ 178; Def.’s Resp. to PCSOF ¶ 178. Prior to 2003, Univar imported saccharin
20 At all times relevant to the matters described in Plaintiff’s complaint, Defendant was a
wholly-owned subsidiary of Univar Inc. PCSOF ¶ 177; Def.’s Resp. to PCSOF ¶ 177.
Defendant objects to Plaintiff referring to Defendant and Univar Inc. interchangeably as
“Univar.” Def.’s Resp. to PCSOF ¶ 178. The court refers only to Defendant as “Univar.”
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from China. PCSOF ¶ 184; Def.’s Resp. to PCSOF ¶ 184. After Commerce issued the
antidumping duty order, Univar internally declared itself “temporarily out of the sodium
saccharin business” while it considered other sources for its saccharin imports. 	DSOF
¶ 153; 21 Def.’s Mem., Attach. 51 (Univar internal email), ECF No. 143-5; PCSOF ¶ 184;
Def.’s Resp. to PCSOF ¶ 184.
Mr. Biggs is the director of Univar’s International Sourcing Group, PCSOF ¶ 185;
Def.’s Resp. to PCSOF ¶ 185, and had the “ultimate authority within Univar [] to approve
[foreign] suppliers, Biggs Dep. 69:14-21. After Commerce issued the antidumping duty
order, Mr. Biggs consulted the World Wide Directory of Chemical Producers to search
“for non-Chinese manufacturers [of saccharin].” 22 DSOF ¶ 139; PCSOF ¶ 139; Def.’s
Mem. at 18. He sent a list from that database to Mr. Chin, who then informed Mr. Biggs
that Mr. Huang was “the only viable manufacturer in Taiwan.” DSOF ¶ 140; PCSOF
¶ 140.
21 Univar relies on the opinions of its proposed expert, Michael O’Rourke, as evidentiary
support for some of its statements of fact. Because the court has previously determined
that Mr. O’Rourke’s testimony is inadmissible, see Order on Mots. In Limine at 29-36, it
has not considered Univar’s Rule 56.3 statements of fact that are supported only with
Mr. O’Rourke’s report, but has considered those statements that are supported with
additional cited evidence.
22 Shortly before Commerce issued the AD Order, in April of 2003, Mr. Biggs had
inquired into purchasing saccharin from a Spanish company. See DSOF ¶ 156; Def.’s
Mem., Attach. 47 (Univar USA, Inc.’s Resp. to Pl.’s First Set of Interrogs., Reqs. for
Admiss. and Reqs. for Produc. of Docs. to Third-Party Def.) (“Univar’s Resp. to Pl.’s
First Set of Disc. Req.”) at 26, ECF No. 143-5; see also Def.’s Mem., Attach. 53 (Email
to Mr. Biggs), ECF No. 143-5. Upon receiving information that saccharin imported into
the United States from the Spanish company would have originated in China, Mr. Biggs
declined to purchase saccharin from this company. Univar’s Resp. to Pl.’s First Set of
Disc. Req. at 26.
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In October 2003, Mr. Chin obtained prices from Mr. Huang “of [LH] Chemical”
and reported those prices to Mr. Biggs. PCSOF ¶ 191; Dep. Ex. 288 at
UNIVAR_013664-013665. Mr. Huang quoted a price of $3,850 per metric ton (“MT”) for
20-40 mesh size saccharin delivered freight on board in Taiwan. 23 See PCSOF ¶ 192;
Dep. Ex. 288 at UNIVAR_013664-013665. Univar was informed that the quoted price
was higher than the price for saccharin from China but lower than the price for
saccharin from Japan. See Dep. Ex. 288 at UNIVAR_013664; see also PCSOF ¶ 194;
Def.’s Resp. to PCSOF ¶ 194 (Mr. Biggs “understood that [in October 2003], Japanese
product was more expensive than $3,850” per MT).
“Univar began the process of approving LH Trading/LH Chemical as a supplier in
late 2003, early 2004.” PCSOF ¶ 195; Dep. Ex. 179. 24 At that time, LH Trading/LH
Chemical were not registered with the FDA. See Dep. Ex. 179 at Univar_069041 (“FDA
Registration NO: will advies [sic] !!!!!!”); Biggs. Dep. 79:22-23, 81:15-20. As of January
8, 2004, Univar completed the FDA registration for these companies, and listed LH
Trading as the supplier and LH Chemical as the manufacturer in the registration
documents. Dep. Ex. 215 (Univar email containing FDA registration number); Pl.’s
23 A “20-40” mesh size “refers to saccharin that will pass through a [Number] 20 mesh
screen but not a Number 40 mesh screen.” DSOF ¶ 87; PCSOF ¶ 87 (alteration in
original). On the other hand, a “10-40” mesh size “refers to saccharin that will pass
[through] a Number 10 mesh screen but not a Number 40 mesh screen.” DSOF ¶ 87;
PCSOF ¶ 87 (alteration in original).
24 Exhibit 179 is an internal Univar memorandum containing a December 9, 2003 Import
Product/Vendor Request and a January 2, 2004 Import Product Profile. Dep. Ex. 179.
The December 2003 request lists LH Trading as foreign supplier and manufacturer, and
the January 2004 product profile lists LH Chemical as the manufacturer. See id. at
Univar_069039, Univar_069041.
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Attach. 3 (Dep. of Annie Chang) (“Chang Dep.”) 58:3-59:12 (discussing email). The
final registration listed the address for both companies as: 19 Lane 142 Wen Chu Road
4FL Tso Ying Dist. Kaohsiung, Taiwan. Dep. Ex. 215; see also Chang Dep. 59:6-9.
In April 2004, Mr. Biggs visited Taiwan and met with Mr. Huang, the president of
LH Trading. DSOF ¶ 124; PCSOF ¶¶ 124, 185; Def.’s Resp. to PCSOF ¶ 185. The
purpose of this visit was to conduct “an inspection for . . . a new supplier.” DSOF ¶ 124;
PCSOF ¶ 124. Mr. Huang informed Mr. Biggs that he owned a factory in Taiwan that
manufactured saccharin. PCSOF ¶ 187; Def.’s Resp. to PCSOF ¶ 187. During this
visit, Mr. Biggs and Mr. Huang toured a factory in Taiwan. See PCSOF ¶ 189; Def.’s
Resp. to PCSOF ¶ 189. However, the factory that they toured was owned by HTC.
PCSOF ¶ 190; Def.’s Resp. to PCSOF ¶ 190. HTC’s factory is located at 115 Qinan
Road, Dashe District, Kaohsiung City 815. DSOF ¶ 17; PCSOF ¶ 17.
By May 2004, Univar had begun importing saccharin from Taiwan. See PCSOF
¶ 200; Dep. Ex. 316 at Univar_066465; Biggs Dep. 167:21-23. On August 30, 2004,
Univar submitted an application for kosher certification to the Orthodox Union, indicating
it promotes its “artificial sweetener” as a “food additive.” 25 	See Dep. Ex. 314 at
Univar_065703. Univar listed LH Chemical—located at 4 Fl. Number 19, Lane 142,
25 The kosher certification application included a production process flow chart. See
Dep. Ex. 314 at Univar_065709. According to this document, the source of Mr. Huang’s
acid saccharin was “Sei Cheng Chemical Co., Ltd, (Japan).” Id.; Dep. Ex. 315; see also
PCSOF ¶ 213; Def.’s Resp. to PCSOF ¶ 213 (O-Sulfobenzoic acid imide is acid
saccharin).
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Wen Chu Road, Tso Ying District, in Kaoshiung, Taiwan—as the manufacturer, and Mr.
Huang as LH Chemical’s president. Id. at Univar_065704.
On or around March 10, 2005, Rabbi Grunberg from the Orthodox Union visited
the plant owned by “[LH] Chemical,” located in “Tso Ying Dist, Kaohsiung, Taiwan” to
inspect the facility for purposes of certifying the plant as kosher. Def.’s Mem., Attach. 1
(Rabbi Grunberg Inspection Report), ECF No. 143-5; DSOF ¶¶ 144-45; PCSOF ¶¶ 144-
45. That year, the Orthodox Union certified the plant as kosher. DSOF ¶ 145; PCSOF
¶ 145. Subsequent to Rabbi Grunsberg’s visit, Rabbi Talmid flew to Taiwan three times
to inspect the saccharin factory so that the Orthodox Union could continue to certify it as
kosher. Talmid Dep. 53:1-68:13. 26 On each occasion, Rabbi Talmid was told that he
could not inspect the plant because, respectively, the plant was shut down, there was a
dangerous flood, or there was dangerous construction preventing access to the factory.
Id. Between 2007 and 2012, the Orthodox Union was unable to inspect Mr. Huang’s
factory. Biggs Dep. 218:6-9, 219:12-220:4. Nonetheless, from 2005 to 2013, the
Orthodox Union continuously certified the saccharin that Univar purchased from Mr.
Huang as kosher. DSOF ¶ 145; PCSOF ¶ 145.
Between July 9, 2007, and April 3, 2012, Univar made 36 entries of saccharin
into the United States. PCSOF ¶¶ 181, 183; Def.’s Resp. to PCSOF ¶¶ 181, 183; see
also DSOF ¶¶ 2, 13; PCSOF ¶¶ 2, 13. Specifically, Univar made 20 entries in 2007 and
2008, and 16 entries between 2009 and 2012. DSOF ¶¶ 13, 48; PCSOF ¶¶ 13. 48.
26 In order to re-certify a product as kosher, the Orthodox Union requires annual
inspection of the production facility. Talmid Dep. 60:9-15; see also id. 58:21-59:1.
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Univar declared Taiwan as the country of origin for all entries of subject merchandise.
See DSOF ¶ 3 (“The ‘36 entries of saccharin’ identified by the government in its [p]re-
[p]enalty [n]otice form the basis of this action); PCSOF ¶ 3; PCSOF ¶ 183; (“Univar
entered, introduced, or caused to be entered or introduced, merchandise consisting of
‘saccharin and its salts’ under the entry numbers, entered values, and duties paid listed
in the [p]re-[p]enalty [n]otice”); Def.’s Resp. to PCSOF ¶ 183; Univar’s Resp. to Pl.’s
First Set of Disc. Req. at 16 (“Univar admits that it asserted at the time of entry that the
country of origin was Taiwan for all entries of [s]ubject [m]erchandise identified in the
[p]re-[p]enalty [n]otice”).
Univar received a certificate of origin issued by the Kaohsiung Yuan City
Chamber of Commerce for each of the 36 entries. DSOF ¶ 133; PCSOF ¶ 133. “The
Kaohsiung Yuan City Chamber of Commerce is authorized by the Taiwan Board of
Foreign Trade to issue certificates of origin.” DSOF ¶ 131; PCSOF ¶ 131. Issuance of
the certificates “is a routine business activity,” DSOF ¶ 132; PCSOF ¶ 132, and occurs
upon receipt of an application by an exporter and “on the basis that the customs
declaration information is verified to be correct,” Chamber of Commerce Test. ¶ 5.
In December 2008, Univar participated in a “[c]ustoms mock-audit” conducted by
DHL Global Forwarding (“DHL”). See Def.’s Mem., Attach. 2 (Letter from DHL to
Univar) at Univar_DHS-003553, ECF No. 143-5; Pl.’s Attach. 10 (Dep. Ex. 11), ECF No.
154-12. DHL is a licensed corporate U.S. Customs broker that helps importers with “the
preparation and submission of the entry and entry summary documentation of Customs
in association with their importations.” Def.’s Mem., Attach. 15 (DHL Fed. R. Civ. P.
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30(b)(6) Dep.) 17:16-18:2. 	DHL concluded that Univar is a “good importer,” with a
“culture of compliance.” DSOF ¶ 160; PCSOF ¶ 160 (initial capitalization omitted).
According to DHL’s corporate representative, “[d]uring [the] approximately 18-year
period” that DHL has conducted these audits, no company “received a perfect score,”
but Univar “received a score of 90 to 92 percent,” which “is probably at or a little above
the normal average.” DSOF ¶ 161; PCSOF ¶ 161. Moreover, this representative
believed that “a good importer” need not “actually visit the factory located in a foreign
country before purchasing from that factory.” DSOF ¶ 127; PCSOF ¶ 127.
C. Third Party Communications to Univar and Univar’s Reactions
In August 2004, shortly after Univar began importing the saccharin it purchased
from Mr. Huang, Univar received notice from a U.S. Producer—PMC Specialties Group,
Inc. (“PMC”)—that it believed Mr. Huang was not producing saccharin, but importing
Chinese product and relabeling it. PCSOF ¶ 205; Pl.’s Attach. 1 at Univar_066462. Mr.
Biggs relayed PMC’s beliefs to Mr. Chin in an email, and asked Mr. Chin if there was
“any proof that [Mr. Huang] can provide that [Univar] can use to kill this question.”
PCSOF ¶ 205; Pl.’s Attach. 1 at Univar_066462. In response, Mr. Chin stated that,
according to Mr. Huang, Mr. Biggs’s visit to the factory in 2004 was “good proof.”
PCSOF ¶ 206; Pl.’s Attach. 1 at Univar_011207.
A September 15, 2004 email indicates that Univar provided a sample of the
saccharin it purchased from Mr. Huang to PMC for testing. PCSOF ¶ 209; Dep. Ex.
310; see also DSOF ¶ 158; Biggs. Dep. 150:3-23. After conducting the lab tests, PMC
informed Mr. Biggs that it was “99.99 [percent] convinced” that the saccharin originated
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in China, not Taiwan, due to the method used to produce it, which was the Maumee
process. 27 PCSOF ¶ 209; Dep. Ex. 310 at Univar_011211; see also Def.’s Resp. to
PCSOF ¶ 209 (“Univar does not dispute that this is what PMC ‘contended’ in September
2004 . . . .”). PMC explained that it “very much doubt[ed]” that the Maumee process
“exists anywhere else in the world except in the USA . . . and the PRC.” Dep. Ex. 310
at Univar_011211. Mr. Biggs “distrusted PMC’s claim” because Univar commonly
encountered U.S.-based companies that had a “false” “understanding of what was going
on in China.” 28 DSOF ¶ 98; PCSOF ¶ 98.
Also in September 2004, Robert Spear, of PepsiCo, Inc. (“Pepsi”), a Univar
customer, wrote an email to Mr. Biggs inquiring: “The Taiwan plant doesn’t make the
base saccharin molecule does it? I thought I heard the plant receives the base product
from China.” 29 Dep. Ex. 317 at Univar_066447; PCSOF ¶ 208Def.’s Mem., Attach. 26
27 There are two main processes for producing saccharin: the Remsen-Fahlberg
process and the Maumee process. Chyall Report ¶¶ 29-30; id. at 11-12 Figs.4 & 5.
28 During fact discovery, the government confirmed that “the United States does not
contend that the Maumee [p]rocess was not used to produce saccharin in Taiwan,” and
“[t]he process by which the saccharin [was produced] was not construed as a factor in
the investigation once agents discovered that the Maumee process was not used
exclusively in China.” DSOF ¶ 99; PCSOF ¶ 99.
29 The following month, in October 2004, Mr. Biggs requested confirmation from Mr.
Huang regarding the origin of the “original saccharin molecule” used in the production of
acid saccharin. 	PCSOF ¶ 210; Dep. Ex. 311. Mr. Biggs advised that if the origin was
China, Univar’s imports would be subject to the antidumping duties. Dep. Ex. 311. He
went on to state: “[T]he ‘best’ answer is an answer from [Mr. Huang’s] Japanese source
that no raw materials originating from China were used in the production of the acid
saccharin that it sells to [Mr. Huang.]” Id. Shortly thereafter, Mr. Huang informed Mr.
Biggs the following:
In some cases, we directly import ‘saccharin acid,’ and add other raw
materials to manufacture the finished product (sodium saccharin).
However, the imported quantity is very small. . . . [S]accharin acid[] is
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(Decl. of Robert Spear) (“Spear Decl.”), ECF No. 143-5 (expressing lack of recollection
regarding the email, but otherwise not disputing that he sent it); 30 see also Compl. ¶ 16;
Answer of Def. Univar USA Inc. to Pl.’s Compl. (“Answer”) ¶ 16, ECF No. 8 (establishing
that Pepsi is a Univar customer).
On April 7, 2006, Mr. Biggs received an email from a Univar colleague that
relayed some information she heard during a meeting with one of Univar’s customers.
Dep. Ex. 322; Biggs. Dep. 182:9-16. She stated, “rumor has it that Mr. Biggs from
Univar has already been buying Chinese material. Yes you were mentioned by name.”
PCSOF ¶ 216; Dep. Ex. 322; Biggs Dep. 182:9-16, 183:6-12. Mr. Biggs’s reaction to
this email was to “chuckl[e]”; he believed “there was a history of bad-unreliable
information from this buyer.” Biggs Dep. 183:14-22.
In January 2007, an account executive at Univar sent an email to the company’s
International Sourcing Group stating the following:
imported from two companies, Aisan Chemicals Ltd and Fuji Chemicals
Ltd. . . . Only in the case that the product quantity demanded by the
market is large, we will import a small quantity of . . . saccharin acid from
Japan and further process them (through chemical reaction) into the
finished products.
Def.’s Reply, Attach. 77 (Fax from Mr. Huang to Mr. Biggs) (“Huang Nov. 2004 Fax”),
ECF No. 161-3 (emphasis omitted); Def.’s Resp. to PCSOF ¶ 238.
30 During fact discovery in this case, Mr. Spear recognized that his name is referenced
in the email communications with Univar in 2004, but he did not recall either sending or
receiving the email. DSOF ¶ 104; PCSOF ¶ 104. Further, he affirmed that he “do[es]
not recall ever informing Univar that an antidumping duty order covered imports of
Taiwanese saccharin manufactured in plants that received Chinese-origin components,”
and that he did not “recall ever informing Univar (or Mr. Biggs) that ‘Mr. Huang received
subject saccharin base product from China.’” DSOF ¶ 103; PCSOF ¶ 103. Mr. Biggs
testified to his receipt of the email in question. Biggs Dep. 170:7-171:17.
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I had one of my customers tell me that one of our competitors told her that
we were getting product that is actually manufactured in China then
shipped to Taiwan and then repackaged and marked as manufactured in
Taiwan. She wanted me to look into this. We just secured this business at
this account so it may be just a competitor who is upset over losing the
business. Can you let me know about this. [sic]
PCSOF ¶ 217; Dep. Ex. 323 at Univar_012851.
John Lombard is the president of Lomco, Inc., a company that “assist[s]
companies in managing inventories, by buy[ing] and sell[ing] some of their surplus and
obsolescent chemicals and sell[ing] them into the secondary markets.” DSOF ¶¶ 107-
108; PCSOF ¶¶ 107-108 (second and third alteration in original) (internal quotation
marks omitted). In or around October 2008, Lomco, Inc. attempted to sell Univar’s
saccharin and eventually identified PMC as a potential buyer of this material. DSOF ¶
109; PCSOF ¶ 109. During the course of his attemps to sell this saccharin to PMC, a
PMC employee told Mr. Lombard “that there was no factory, no production [of
saccharin] in Taiwan,” although this employee did not elaborate why she believed there
were no such manufacturers. 31 DSOF ¶ 110; PCSOF ¶ 110.
In November 2008, Mr. Lombard informed Univar:
Our major hurdle with assisting you is the following: Regardless of what
they say, Lung Huang Trading are not manufacturers of Sodium
Saccharin. They are buying material from mainland China and
repackaging the material. As you probably know, several years ago
dumping duites [sic] were implemented against Chinese producers of
Sodium Saccharin. . . . I can’t imagine that Univar didn’t dot all the I’s [sic]
and cross all the Ts before beginning to import Sodium Saccharin.
31 Close to this time-frame, in a November 7, 2008 fax to Mr. Biggs, Mr. Huang stated
that he “told [] the truth,” and he “absolutely [had] not imported Chinese made saccharin
acid. . . . please don’t worry.” PCSOF ¶ 218; Dep. Ex. 325 (capitalization omitted).
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PCOF ¶ 218; Dep. Ex. 259 at Univar_014646 (email from Mr. Lombard to Mr. Biggs),
ECF No. 154-4. Mr. Lombard did not make those statements on personal knowledge,
but rather based on “information supplied by . . . PMC as well as information that [he]
could or could not find on the internet about manufacturing of [s]odium [s]accharin in
Taiwan.” DSOF ¶¶ 111, 113; PCSOF ¶¶ 111, 113. As he recalled during his deposition
in this case, “[he] was seeking information on Taiwanese manufacturers of [s]odium
[s]accharin” on the internet and he didn’t “believe [he] was able to find any.” DSOF
¶ 112; PCSOF ¶ 112 (alteration in original).
D. Customs’ Investigation of Univar’s Entries
On February 20, 2010, ICE informed Univar’s Chief Executive Officer that the
company was under investigation for “possible transshipment of saccharin
manufactured in [China] in order to avoid payment/deposit of anti-dumping duties
associated with the commodity.” PCSOF ¶ 220; Dep. Ex. 12 at Univar_065600. 32 At
the time it issued this letter, the Government “had suspicions transshipment was
occurring,” but “[a]t that point[,] there was nothing confirmed.” DSOF ¶ 118; PCSOF
¶ 118.
In April 2010, two Government employees, chemist Yogendra Raval and Agent
Tsui, went to Taiwan. DSOF ¶ 25; PCSOF ¶ 25. They toured HTC’s factory to
determine the type of manufacturing process that HTC was using to produce saccharin.
32 After receipt of the ICE letter in February 2010, Univar continued importing saccharin
purchased from Mr. Huang for more than two years. PCSOF ¶ 220; DSCOF ¶ 220 (not
objecting to this assertion).
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DSOF ¶¶ 25, 26; PCSOF ¶ 25, 26; see also Tsui Aff. ¶ 10 (“The purpose of the visit to
HTC was to verify that HTC in fact manufactured the saccharin that it exported to the
United States.”) During this visit, Mr. Raval reviewed a “process flow chart,” “[p]urchase
documents for raw materials,” and “took a sample for [his] lab” to ensure that the
product was saccharin; he ultimately concluded that “saccharin [wa]s being
manufactured according to the Maumee process” at HTC. 33 DSOF ¶ 27; PCSOF ¶ 27
(alteration in original).
Agent Tsui also testified that he saw raw materials, equipment, and employees at
the HTC facility during this visit. DSOF ¶ 29; PCSOF ¶ 29. He testified he smelled a
“sweet smell in the air,” which the HTC officials described to be the saccharin smell, and
tasted sweetness on his tongue. Def.’s Mem., Attach. 24 (“Tsui Dep.”) 65:1-14, ECF
No. 143-5. Based on the taste, HTC’s statements to him, and the consistency of the
end product, which he witnessed to be a “white powdery substance,” Agent Tsui
“believed it was saccharin” that was being produced at the [HTC] factory in Kaohsiung
City.” DSOF ¶ 30; PCSOF ¶ 30; Tsui Dep. 65:17-22, 66:5-9. During this visit, the “plant
manager admitted” to Agent Tsui that HTC was “in violation of local fire and
environmental regulations” but that it was “still successfully producing saccharin.”
DSOF ¶ 39; PCSOF ¶ 39.
33 Mr. Raval documented his visit with photographs. DSOF ¶ 28; PCSOF ¶ 28. Univar’s
expert, Dr. Chyall, reviewed Mr. Raval’s photographs, trip reports, and deposition
testimony concerning his visit to the HTC plant in 2010, and, based on those sources,
concluded that the HTC factory “is capable of producing acid saccharin and saccharin
sodium.” DSOF ¶ 31; PCSOF ¶ 31.
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On June 10, 2010, Agent Tsui determined that both LH Trading and LH Chemical
were located at the following address: “Section 19, Lane 142, Wun Cih Road,
Kaoshiung City, Taiwan.” Tsui Aff. ¶¶ 13, 14. A week later, on June 17, 2010, Agent
Tsui conducted a site visit to this address and observed that the building located at this
address was “a 12-story residential apartment building located in a dense residential
neighborhood.” Id. ¶ 15. He “did not observe any manufacturing, industrial activity, or
distribution at this location or its vicinity.” Id. ¶ 16. Agent Tsui provided photographs of
“Google maps” images depicting “the site that [he] visited” on this date. Id., Ex. 2
(referencing screenshots showing “Lane 142, WénCí Road, Zuoying District, Taiwan”).
E. Taiwan’s Economy and Regulation of Saccharin Production
“[I]n Taiwan, sodium saccharin is not a controlled item.” DSOF ¶ 33; PCSOF
¶ 33. Taiwan requires a saccharin manufacturing license only if the sodium saccharin
“is used [as a] food additive.” DSOF ¶ 33; PCSOF ¶ 33. Single food additive
production is regulated and managed by the Ministry of Health and Welfare. Def.’s
Mem., Attach. 31 (Jyh-Quan Pan Aff.) (“Pan Aff.”), ECF No. 143-5; Def.’s Mem., Attach.
10 at US007941 (email from Lisa Yang to Eben Roberts), ECF No. 143-5. Between
2004 and 2012, the Ministry of Health and Welfare did not issue any licenses for the
manufacture of sodium saccharin. DSOF ¶ 34; Pan Aff.
According to Professor Jane Winn, Univar’s proposed expert witness, the term
informal economy “refers to economic activities that take place outside of government
regulation.” DSOF ¶ 37; PCSOF ¶ 37. Professor Winn’s “primary focus in [her] analysis
is on activities that would otherwise be legitimate economic activities if they had been
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undertaken in compliance with all relevant laws and regulations.” DSOF ¶ 37; PCSOF
¶ 37 (alteration in original). According to Professor Winn, Taiwan’s informal economy
“remain[s] significant” and “the facts associated with [HTC] are consistent with
companies in Taiwan that operate without a manufacturing license because they are
facts that suggest that a company is operating partly or wholly in the informal economy.”
DSOF ¶ 38; PCSOF ¶ 38 (first alteration in original).
F. Administrative Proceedings
“In July 2014, CBP issued a pre-penalty notice to Univar,” claiming a penalty of
approximately $47.9 million and lost duties of $36.1 million. DSOF ¶ 165; PCSOF
¶ 165. On July 29, 2014, Univar requested that CBP identify the material facts
supporting its pre-penalty notice. DSOF ¶ 166; PCSOF ¶ 166. In response, CBP
directed Univar to submit a Freedom of Information Act request to obtain the requested
information. DSOF ¶ 167; PCSOF ¶ 167. Univar complied with this directive “and
subsequently responded to the pre-penalty notice.” DSOF ¶ 168; PCSOF ¶ 168.
On October 1, 2014, CBP issued its penalty notice, which contained allegations
identical to the pre-penalty notice. DSOF ¶¶ 169-170; PCSOF ¶¶ 169-170. “On
October 31, 2014, Univar submitted a petition for relief.” DSOF ¶ 171; PCSOF ¶ 171.
In response, CBP’s Office of International Trade – Regulations and Rulings (“CBP
Headquarters”) “provided a ‘partial decision’ to Univar’s petition for relief.” DSOF ¶ 172;
PCSOF ¶ 172. In relevant part, this partial decision stated that the CBP Headquarters’
“review of the case file revealed that the penalty notice does not include the material
facts supporting CBP’s allegation that the saccharin was of Chinese origin and
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supporting a degree of culpability of gross negligence.” DSOF ¶ 173; PCSOF ¶ 173.
Thus, CBP Headquarters denied without prejudice Univar’s petition for relief and
remanded the case back to the CBP office “to issue an amended penalty notice that
includes the material facts supporting CBP’s allegation that the saccharin was of
Chinese origin and supporting a degree of culpability of gross negligence.” DSOF
¶ 174; PCSOF ¶ 174. “On February 10, 2015, CBP issued a ‘revised penalty notice’ to
Univar.” DSOF ¶ 175; PCSOF ¶ 175.
Procedural History
Plaintiff commenced this action on August 6, 2015. See Summons, ECF No. 1;
Compl. On October 6, 2015, Defendant filed an answer to the complaint. Answer.
Defendant previously moved for partial summary judgment in its favor with
respect to 23 entries that occurred prior to March 2010. Univar’s Mot. for Partial Summ.
J., ECF No. 18. Plaintiff cross-moved for partial summary judgment in its favor with
respect to 13 entries that occurred during or after March 2010. Confidential Pl.’s Opp’n
to Univar’s Mot. for Partial Summ. J. and Cross-Mot. for Partial Summ. J., ECF No. 30.
Both motions were filed while discovery was ongoing. On December 22, 2016,
recognizing that there were material facts in dispute and each party was in the process
of conducting discovery on relevant issues, the court denied both motions and allowed
discovery to continue. United States v. Univar USA, Inc., 40 CIT ___, 195 F. Supp. 3d
1312, 1320-23 (2016). The parties have completed discovery, and Univar now moves
for summary judgment in its favor with respect to all entries.
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DISCUSSION
Standard of Review
The Government brought this action against Defendant to recover unpaid duties
and a monetary penalty owing from allegedly transshipped saccharin from China
through Taiwan pursuant to 19 U.S.C. § 1592. See generally Compl. As such, the
court has jurisdiction to hear this action pursuant to 28 U.S.C. § 1582.
The Court of International Trade reviews all issues in actions brought for the
recovery of a monetary penalty pursuant to 19 U.S.C. § 1592 de novo and on the basis
of the record made before the court. 19 U.S.C. § 1592(e)(1); 28 U.S.C. § 2640(a); see
also United States v. ITT Indus., Inc., 28 CIT 1028, 1035, 343 F. Supp. 2d 1322, 1329
(2004), aff’d, 168 F. App’x 942 (Fed. Cir. 2006). Summary judgment is proper when
“the movant shows that there is no genuine issue as to any material fact and the movant
is entitled to judgment as a matter of law.” USCIT Rule 56(a); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986).
The movant may discharge its burden of showing the absence of a genuine issue
of material fact by demonstrating that the nonmovant “fail[ed] to make a showing
sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial,” or by pointing to “an absence of
evidence to support the nonmoving party’s case.” Id. at 322, 325; see also Exigent
Tech. v. Atrana Solutions, Inc., 442 F.3d 1301, 1307-1308 (Fed. Cir. 2006) (discussing
Celotex Corp.). The movant may do so by “identifying those portions of the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
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affidavits, if any, which it believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp., 477 U.S. at 323 (internal quotation marks omitted); see
also USCIT Rule 56(c)(1)(A) (“A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by [] citing to particular parts of materials in the
record, including depositions, documents, electronically stored information, affidavits or
declarations, stipulations . . ., admissions, interrogatory answers, or other materials[.]”).
To defeat summary judgment once the moving party has met its burden, the
nonmoving party must “‘cit[e] to particular parts of materials in the record’ to establish
the ‘presence of a genuine dispute’ warranting trial.” Macclenny Prods. v. United
States, 38 CIT ___, ___, 963 F. Supp. 2d 1348, 1358 (2014) (alteration in original)
(quoting USCIT Rule 56(c)). “‘[I]f a party ‘fails to properly address another party's
assertion of fact,’ that assertion of fact may be deemed ‘undisputed for purposes of the
motion.’” Id. (quoting USCIT Rule 56(e)(2)). There must exist more than “a scintilla of
evidence” to support the non-moving party’s claims, Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 252 (1986); conclusory assertions will not suffice, see USCIT Rule 56(e).
The court must view the evidence in the light most favorable to the nonmovant
and may not weigh the evidence, assess the credibility of witnesses, or resolve issues
of fact. See Anderson, 477 U.S. at 249, 255; Netscape Comm.’s Corp. v. Konrad, 295
F.3d 1315, 1319 (Fed. Cir. 2002).
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Legal Framework
In relevant part, § 1592 bars the grossly negligent or negligent entry, introduction,
or attempt to enter or introduce, merchandise into the commerce of the United States by
means of a material false statement or material omission. 19 U.S.C. § 1592(a)(1)(A). 34
A statement is material when it has the “potential to alter Customs’ appraisement
or liability for duty.” United States v. Horizon Prod. Int'l Inc., 39 CIT __, __, 82 F. Supp.
3d 1350, 1356 (2015) (citation omitted); see also United States v. Menard, Inc., 16 CIT
410, 417, 795 F. Supp. 1182, 1188 (1992) (materiality for purposes of § 1592 refers to
the false statement’s effect on CBP’s determination of the applicable duty); 19 C.F.R.
Pt. 171, App. B(B) (2013) (defining materiality for purposes of § 1592).
The statute does not define the term “false”; thus, it is defined according to its
ordinary meaning. United States v. Rockwell Automation Inc., 30 CIT 1552, 1557 462
F. Supp. 2d 1243, 1248 (2006) (citing Perrin v. United States, 444 U.S. 37, 42 (1979)).
34 In full, § 1592(a)(1) provides:
(a) Prohibition
(1) General rule
Without regard to whether the United States is or may be deprived
of all or a portion of any lawful duty, tax, or fee thereby, no person,
by fraud, gross negligence, or negligence--
(A) may enter, introduce, or attempt to enter or introduce any
merchandise into the commerce of the United States by
means of--
(i) any document or electronically transmitted data or
information, written or oral statement, or act which is
material and false, or
(ii) any omission which is material, or
(B) may aid or abet any other person to violate
subparagraph (A).
19 U.S.C. § 1592(a)(1).
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According to Black’s Law Dictionary, a statement is “false” when it is “untrue” or “[n]ot
genuine; inauthentic.” Id. (quoting Black’s Law Dictionary 635 (8th ed. 2004)) (citing
Koyo Seiko Co. v. United States, 36 F.3d 1565, 1571 n.9 (Fed. Cir. 1994) (dictionaries
may supply the common meaning of a term)).
Violations of § 1592(a) may be punishable by a civil penalty depending on the
degree of culpability. 19 U.S.C. § 1592(c). “[I]n ruling on a motion for summary
judgment, the judge must view the evidence presented through the prism of the
substantive evidentiary burden.” Anderson, 477 U.S. at 254. “Parties must meet their
burdens of proof regarding [culpability] by a preponderance of the evidence.” United
States v. Matthews, 31 CIT 2075, 2081, 533 F. Supp. 2d 1307, 1313 (2007) (citing
United States v. New–Form Mfg. Co., Ltd., 27 CIT 905, 918–19, 277 F. Supp. 2d 1313
(2003)); cf. Anderson, 477 U.S. at 252 (in determining whether summary judgment
should issue, “[t]he judge’s inquiry . . . unavoidably asks whether reasonable jurors
could find by a preponderance of the evidence that the [party bearing the burden of
proof at trial] is entitled to a verdict”).
A defendant’s false statement or omission is negligent when it results from a
“failure to exercise the degree of reasonable care and competence expected from a
person in the same circumstances either: (a) in ascertaining the facts or in drawing
inferences therefrom, in ascertaining the offender’s obligations under the statute; or (b)
in communicating information in a manner so that it may be understood by the
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recipient.” 19 C.F.R. Pt. 171, App. B(C)(1). 35 Plaintiff bears the initial burden of proving
the act or omission constituting the violation; the burden then shifts to the alleged
violator to “affirmatively demonstrate that it exercised reasonable care under the
circumstances.” Ford Motor Co., 463 F.3d at 1279 (Fed. Cir. 2006); 19 U.S.C.
§ 1592(e)(4). To establish gross negligence, Plaintiff must prove “an act or acts (of
commission or omission) [by Defendant] done with actual knowledge of or wanton
disregard for the relevant facts and with indifference to or disregard for the offender’s
obligations under the statute.” 19 C.F.R. Pt. 171, App. B(C)(2); see also Ford Motor
Co., 463 F.3d at 1292 (“An importer is guilty of gross negligence if it behaved willfully,
wantonly, or with reckless disregard in its failure to ascertain both the relevant facts and
the statutory obligation, or acted with an utter lack of care.”). “[A] determination of gross
negligence involves a determination of intent”; thus, “it is an issue of fact, not law.” Ford
Motor Co., 463 F.3d at 1292.
Analysis
A. Entry of Merchandise
Parties do not dispute that Univar, as the importer of record, made the subject
entries. See PSOF ¶¶ 181, 183; Defs.’ Resp. to PSOF ¶¶ 181, 183. Accordingly, there
is no dispute that Univar “enter[ed]” merchandise for purposes of § 1592(a).
35 “As a general rule, a violation is negligent if it results from failure to exercise
reasonable care and competence . . . to ensure that statements made and information
provided in connection with the importation of merchandise are complete and accurate.”
19 C.F.R. Pt. 171, App. B(C)(1).
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B. Material False Statement
Univar declared Taiwan as the country of origin for all entries of subject
merchandise. See DSOF ¶ 3; PCSOF ¶¶ 3, 183; Def.’s Resp. to PCSOF ¶ 183;
Univar’s Resp. to Pl.’s First Set of Disc. Req. at 16. Plaintiff contends Univar
misrepresented the country of origin as Taiwan because the country of origin was
China. DSOF ¶ 6; PCSOF ¶ 6; Pl.’s Opp’n at 1-2.
Univar argues it is entitled to summary judgment because the Government has
not established a violation of 19 U.S.C. § 1592; particularly “there is an absence of
evidence supporting the government’s theory.” Def.’s Mem. at 23 (citation omitted)
(internal quotation marks omitted); see also Def.’s Suppl. Mem. at 1. The Government
urges the court to deny Univar’s motion because it contends there is “direct evidence”
establishing that each entry originated in China and was transshipped through Taiwan,
and thus, Univar made material false statements to CBP concerning the country of
origin of the imported merchandise. See Pl.’s Opp’n at 15-19. According to the
Government, the available evidence “compels rejecting Univar’s motion for summary
judgment and presenting this case to a jury.” Id. at 2. Generally, the Government relies
on the same collective evidence as proof of transshipment for all of the entries. See
generally Pl.’s Opp’n. Because Univar makes separate arguments concerning its
entries in 2007 and 2008 and those in 2009 through 2012, the court bifurcates its
discussion accordingly. See Def.’s Mem. at 24, 30; Def.’s Suppl. Mem. (addressing
2007-2008 entries).
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1. 	The Presence of Disputed Facts Precludes Summary Judgment with
Respect to the 2007 and 2008 Entries
With respect to the 2007 and 2008 entries, the Government relies on the expert
report of Dr. McFarland that the “saccharin whose origin is at issue in this case was very
likely produced in China.” 36 Pl.’s Opp’n at 15-16, 19; see also id. at 5-6 (discussing
impossibility of Japanese origin). The Government further asserts that the address of
Mr. Huang’s factory that Univar provided to the FDA was an apartment building in a
residential neighborhood, not capable of producing saccharin. Id. at 6. Additionally, the
Government contends that several pieces of circumstantial evidence further
demonstrate that none of the entries could have originated in Taiwan, or any country
other than China. Id. at 19-22. The circumstantial evidence includes:
(1) Univar itself understood that Mr. Huang was a Chinese manufacturer;
(2) neither LH Trading nor LH Chemical possesses any manufacturing
capability or license; (3) there was only one possible (unlicensed)
saccharin producer in Taiwan (HTC) at all relevant times; (4) HTC
exported saccharin only to Rit-Chem, a Univar competitor; (5) HTC did no
business with Mr. Huang during the relevant period; and (6) the only third-
country from which Univar’s saccharin could have originated was China.
Id. at 19. Thus, the Government urges that the totality of circumstances would lead a
rational trier of fact to find for the Government. Id. at 22.
36 Dr. McFarland reached this conclusion with respect to all 36 entries after considering
Taiwanese import and export statistics, Japanese export statistics, U.S import statistics,
the Taiwan Customs Tables, and other evidence from discovery. See McFarland
Report; Pl.’s Attach. 20 (Suppl. Report of Henry B. McFarland, Ph.D.) (“McFarland
Suppl. Report”), ECF No. 154-3. Univar’s challenges to the factual foundation of Dr.
McFarland’s opinion concerning the 2007 and 2008 entries are addressed infra.
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Univar counters that Dr. McFarland’s testimony fails to create a genuine dispute
of material fact concerning the 2007 and 2008 entries because his opinion lacks factual
foundation and is based upon a faulty syllogism. Def.’s Suppl. Mem. at 1-9. Univar
further asserts that the street name that Agent Tsui identified as having visited on June
17, 2010, “Wen Cih Road,” differs from that depicted on the Google maps photograph,
“WénCí Road,” and the Government has not proved that these addresses identify the
same location. Def.’s Resp. to PCSOF ¶ 204; see also Def.’s Reply at 3-4. Univar
further maintains that the Government has failed to establish that Taiwan required a
manufacturing license for saccharin being produced in Taiwan for food use in a foreign
country. Def.’s Mem. at 29; Def.’s Reply at 12. Univar argues that HTC produced the
sodium saccharin in Taiwan, sold it to Mr. Huang, who then exported it to Univar. Def.’s
Mem. at 4-5, 28; see also Def.’s Reply at 13-14. Even if the Government were to
establish that HTC did not have a license to produce saccharin, Taiwan’s informal
economy remains significant, and the facts associated with HTC “are consistent with
companies in Taiwan” operating in the informal economy. Def.’s Mem. at 30; DSOF
¶ 38; PCSOF ¶ 38.
Conflicting evidence concerning the origin of the 2007 and 2008 entries
precludes entry of summary judgment in Univar’s favor. As a starting point, Univar
reported to the FDA that the address of Univar’s saccharin manufacturer was 19 Lane
142 Wen Chu Road 4FL Tso Ying Dist. Kaohsiung, Taiwan. See Dep. Ex. 215 (Univar
email discussing FDA registration); Chang Dep. 58:3-59:12. The address that Rabbi
Grunberg visited in March 2005 to inspect the plant of Univar’s saccharin manufacturer
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for purposes of certifying the plant as kosher was also located in “Tso Ying Dist,
Kaohsiung, Taiwan.” Rabbi Grunberg Inspection Report. Agent Tsui observed that the
building located on “Wun Cih Road, Kaoshiung City, Taiwan” was a residential
apartment building; he “did not observe any manufacturing, industrial activity, or
distribution at this location or its vicinity.” Tsui Aff. ¶¶ 15, 16. Although the spelling of
the street name varied, evidence suggests that the street name has been Romanized in
various ways. See Tsui Dep. 114:9-116:10.
Next, Taiwan requires a saccharin manufacturing license if the sodium saccharin
is used as a food additive, DSOF ¶ 33; PCSOF ¶ 33, and in the years 2007 and 2008,
the Ministry of Health and Welfare did not issue any licenses for the manufacture of
sodium saccharin, DSOF ¶ 34; Pan Aff. Univar promoted its saccharin as a food
additive, see Dep. Ex. 314 at Univar_065703, and saccharin was “an important food
product,” for the company, Biggs Dep. at 43:20-44:4. While Univar argues that the
Government has failed to establish that Taiwan required a manufacturing license when
saccharin was being produced in Taiwan for food use in a foreign country, the Director
of the Food and Safety Division of Taiwan’s Food and Drug Administration that
submitted the affidavit concerning Taiwan’s licensing requirements unconditionally
stated that “[s]ingle food additive production in Taiwan must be licensed.” Pan Aff. To
the extent there is any ambiguity in this unconditional statement, “[w]hen ruling on a
motion for summary judgment, . . . all justifiable inferences are to be drawn in the
nonmovant's favor.” Netscape Comm.’s, 295 F.3d at 1319.
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Further, relevant to the 2007 and 2008 entries, Dr. McFarland opined that: (1)
“Taiwan had substantial saccharin imports from China and minimal saccharin imports
from any other country;” 37 (2) “Taiwan had little or no domestic production of saccharin;”
and (3) “by a process of elimination, the saccharin in question likely was in fact
produced in China.” 	Suppl. DSOF ¶ 1; Suppl. PCSOF ¶ 1.
Univar challenges the factual foundation of Dr. McFarland’s conclusion that
Taiwan had little or no domestic production of saccharin. Def.’s Suppl. Mem. at 4-5
(quoting In re Nexium (Esomeprazole) Antitrust Litig., 42 F. Supp. 3d 231, 248 (D.
Mass. 2014), aff'd, 842 F.3d 34 (1st Cir. 2016) (“[E]xpert testimony without . . . a factual
foundation cannot defeat a motion for summary judgment.”). Univar argues that “no
reasonable juror would give any weight” to Dr. McFarland’s assessment of the evidence
upon which he relied, or the conclusions that he reached. Def.’s Suppl. Mem. at 3-9.
Univar’s challenges, however, are unpersuasive and go to the weight, rather than
sufficiency of the evidence. See Def.’s Suppl. Mem. at 4-8 (challenging Dr. McFarland’s
interpretation of certain evidence, for example, or inviting the court to consider possible
bias behind witness statements that Dr. McFarland considered). The court may not
weigh the evidence or assess the credibility of witnesses at this summary judgment
stage. 38 See Anderson, 477 U.S. at 249, 255. Dr. McFarland considered Taiwan’s
37 97.8 percent of all of Taiwan’s 2007 saccharin imports and 99.7 percent of all of its
2008 imports were from China. McFarland Report at 4 Table 1.
38 The court notes, however, that while Dr. McFarland articulated several reasons for his
conclusion, two reasons provided were that “[a] document in evidence indicates there
are [no saccharin producers in Taiwan]” and “the [U.S. International Trade Commission
(“ITC”)] was unable to identify a producer of saccharin in Taiwan.” Suppl. DSOF ¶ 2;
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import and export statistics, 39 Taiwan’s licensing requirements for the manufacture of
saccharin, the possibility of illegal saccharin production in Taiwan, and the possibility
that HTC produced the saccharin at issue. 40 Suppl. DSOF ¶¶ 2, 3, 25; Suppl. PCSOF
¶¶ 2, 3, 25. Thus, when viewing the collective evidence that Dr. McFarland considered,
the court cannot conclude that his opinion lacks factual foundation.
Suppl. PCSOF ¶ 2. Univar asserts that the referenced document and the ITC report
concerned information related to production of saccharin in Taiwan in years other than
2007 and 2008. Def.’s Suppl. Mem. at 4-5. While Univar’s complaints concerning those
individual sources informing Dr. McFarland’s opinion are accurate in that the referenced
document pertained to Taiwanese production in 2010 and the ITC report pertained to
production in 2009 through 2014, Def.’s Suppl. Mem. at 4-5, Pl.’s Resp. to Def.’s Suppl.
Mem. at 5, Dr. McFarland’s opinion was not founded exclusively on those sources.
39 Taiwan’s imports of saccharin were consistently greater than its exports: in 2007,
Taiwan imported 817,886 kilograms (“kg”) of saccharin and exported 398,320 kg, while
in 2008, it imported 862,328 kg and exported 680,899 kg. McFarland Report at 14
Table 6. In both years, 99 percent of Taiwan’s exports were to the United States.
McFarland Report at 15, Table 7.
40 Dr. McFarland also considered the possibility that saccharin in the unfinished form
was imported from Japan into Taiwan and then converted to sodium saccharin in
Taiwan. McFarland Report at 3; see also Pl.’s Opp’n at 5 (arguing that Mr. Huang’s
representation to Mr. Biggs that he converted Japanese acid saccharin into sodium
saccharin in Taiwan was false) (citing Dep. Exs. 314, 315) (production process flow
chart listing Sei Cheng Chemical Co. (Japan) as the supplier of acid saccharin). In his
opinion, Taiwanese import data “discredit[ed] that explanation” because Taiwan had
“[o]nly minimal amounts” of saccharin imports from Japan. McFarland Report at 3
(explaining that 98.8 percent of Taiwanese imports “of all forms of saccharin” came from
China). Univar argues that Dr. McFarland relied on a “faulty assumption” that Mr.
Huang claimed he imported all of his acid saccharin from Japan. Def.’s Reply at 3. It
contends that Mr. Huang’s “reliance on Japanese suppliers for saccharin acid was ‘very
small,’” and only “when ‘product quantity demanded by the market [was] large.’” Id.
(quoting Def.’s Resp. to PCSOF ¶ 203). However, although Mr. Huang claimed in
November 4, 2004 that he imports only “very small” quantities of acid saccharin from
Japan that he later converts to sodium saccharin in Taiwan, his purported suppliers
listed in that fax were Aisan Chemicals Ltd. and Fuji Chemicals Ltd. Huang Nov. 2004
Fax; see also Def.’s Resp. to PCSOF ¶ 203. This claim was contradicted by his claim in
the production process flow chart, listing Sei Cheng Chemical Co. as his supplier, which
was adopted by Univar in its kosher certification application. See Dep. Exs. 314, 315.
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There is evidence that one saccharin producer, HTC, was producing saccharin in
Taiwan, albeit without a license, for its use as a food additive. Mr. Ritell visited the HTC
plant in 2004 to observe the plant’s manufacturing process. DSOF ¶¶ 20, 21; PCSOF
¶¶ 20, 21. During this visit, which lasted an entire day, Mr. Ritell witnessed “a chemical
reaction in the kettles,” “saw some packaging going on,” “saw the raw material
warehouse,” and saw the then-current stock of product. DSOF ¶ 22; PCSOF ¶ 22.
According to Mr. Ritell, he had previously visited saccharin plants, and he had “[n]o
doubt” that “it was an actual saccharin[] factory” that he visited. DSOF ¶ 23; PCSOF
¶ 23; Ritell Dep. at 29:10-12. Mr. Ritell visited the HTC plant again in “2008 or 2009” for
a “yearly meeting” that lasted “[h]alf a day,” and did not “notice anything different about
the [saccharin] production facility” during that visit. DSOF ¶¶ 20, 24; PCSOF ¶¶ 20, 24
(alterations in original); Ritell Dep. at 30:12. Additionally, as stated previously, two
government employees, Mr. Raval and Agent Tsui, who toured the HTC factory in 2010,
concluded that saccharin was being manufactured at HTC. DSOF ¶¶ 27, 29; PCSOF ¶
27, 29. During this visit, the “plant manager admitted” to Agent Tsui that HTC was “in
violation of local fire and environmental regulations” but that it was “still successfully
producing saccharin.” DSOF ¶ 39; PCSOF ¶ 39. “[T]he facts associated with [HTC] are
consistent with companies in Taiwan that operate without a manufacturing license
because they are facts that suggest that a company is operating partly or wholly in the
informal economy.” DSOF ¶ 38; PCSOF ¶ 38.
Although HTC was producing some saccharin in Taiwan during the relevant time
period, there is conflicting evidence on whether HTC produced the saccharin that Univar
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imported. 41 Mr. Ritell, whose company was a customer of HTC, testified as to his
personal knowledge of HTC’s annual production of saccharin, and the degree to which
Rit-Chem and HTC’s other customer were responsible for that production amount.
Specifically, Mr. Ritell testified that HTC’s annual production capacity was “300 to 500
tons per year.” Ritell Dep. 72:6-11. HTC’s largest customer “was a Taiwan electric
plating industry,” and Rit-Chem purchased HTC’s “excess volume,” which peaked at
“220 tons.” Id. 72:12-16, 73:3-7; see also Dep. Ex. 297 (Univar’s European affiliate’s
2007 inspection of HTC’s factory, noting that in 2007 HTC “was only producing” 100
metric tons of saccharin per year and that its main purpose was to produce for the
Taiwanese market).
Univar contends that to the extent the court considers exhibit 297, “the evidence
establishes that HTC did sell its saccharin within the domestic market – to Mr. William
Huang.” Def.’s Resp. to PCSOF ¶ 202; Def.’s Reply at 13-14. Univar relies on Mr.
Huang’s responses to the court’s letter rogatory as proof. Mr. Huang testified before a
41 The evidence also is unclear as to whether Univar itself considered LH Trading as its
“Chinese” saccharin supplier. See PCSOF ¶ 239; Def’s Resp. to PCSOF ¶ 239.
Plaintiff relies on an email from a Univar employee to Mr. Biggs that contains as an
attachment “a letter [that was] composed by Legal.” Pl.’s Opp’n at 19; Dep. Ex. 277.
The letter, which was composed on June 1, 2007, states: “Recently, there have been
requests for documentation on the use of melamine in Chinese food ingredients. In
response, Univar has requested and received documentation from Chinese suppliers
that suggests that the following FDA regulated products listed below do not contain
Melamine.” Dep. Ex. 277 at Univar_012958. The letter lists sodium saccharin as a
product produced by LH Trading. Id. Univar correctly asserts that this exhibit “does not
indicate if this alleged list of ‘Chinese suppliers’ encompasses suppliers from the
People’s Republic of China, Republic of China (‘Taiwan’) or both.” Def’s Resp. to
PCSOF ¶ 239.
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district court in Taiwan that “[t]he country of origin of the saccharin sold by [LH Trading]
to Univar was indeed Taiwan” and the saccharin was manufactured at a “plant located
on Qinan Road.” Def.’s Mem., Attach. 30 (Certified Translation of Confidential Letter
Rogatory Resp. of Mr. Huang) (“Huang Letter Rogatory”) at 7, ECF No. 143-5. The
plant that Mr. Biggs toured in 2004 was the plant located on Qinan Road. DSOF ¶ 17;
PCSOF ¶ 17; PCSOF ¶ 190; Def.’s Resp. to PCSOF ¶ 190. However, despite the
uncontroverted fact that the only plant located on Qinan Road was owned by HTC,
DSOF ¶ 17; PCSOF ¶ 17, Mr. Huang also testified in the same proceeding that that he
did not have a business relationship with HTC:
Judge: Are you familiar with the company known as ‘High Trans
Corporation’?
Witness: I don’t know this company.
Judge: When I use the term ‘HTC,’ I am referring to ‘High Trans
Corporation.’ Do you understand that?
Witness: I am not familiar with this company.
Judge: HTC once had a contract with Lung Huang Trading, is that
correct?
Witness: No, it didn’t have a contract with Lung Huang Trading.
Huang Letter Rogatory at 14. Univar attributes Mr. Huang’s latter testimony to a
translation issue, and asserts that HTC operated under different names, which may
have been the cause of confusion in Mr. Huang’s testimony. See Def.’s Resp. to
PCSOF ¶ 202; Def.’s Reply at 2, 14. Univar’s assertion is undermined by the fact that
during another portion of Mr. Huang’s testimony, he indicated he knew of HTC:
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Judge: Between July 2007 and 2012, did HTC own the saccharin
plant that you showed to Thomas Biggs of Univar, in 2004?
Witness: No, HTC was a new company at the time, and I didn’t buy
saccharin from it.
Huang Letter Rogatory 30 at 4-5.
In sum, conflicting evidence concerning the origin of the 2007 and 2008 entries
precludes entry of summary judgment in Univar’s favor. The court may not weigh the
evidence, assess the credibility of witnesses, or resolve issues of fact. See Anderson,
477 U.S. at 249, 255; Netscape Comm.’s, 295 F.3d at 1319. Because the court must
weight evidence in favor of the non-movant, Univar’s motion with respect to those
entries will be denied. As to these entries, the Government has proffered enough
evidence supporting its case such that “a fair-minded jury could return a verdict for the
plaintiff on the evidence presented.” Anderson, 477 U.S. at 252. For that reason,
Univar’s motion for summary judgment with respect to these entries will be denied.
2. 	The Presence of Disputed Facts Precludes Summary Judgment with
Respect to the 2009-2012 Entries
In addition to the above evidence relating to the 2007 to 2008 entries, the
Government relies on the Taiwan Customs Tables as “tantamount to DNA evidence” of
Univar’s wrongdoing. Pl.’s Opp’n at 3. One table purports to show 20 shipments of
saccharin imported into Taiwan from China by LH Chemical from 2009 to 2011, and a
second table purports to show 16 shipments of saccharin exported from Taiwan to the
United States by LH Trading from 2009 to 2012. See Taiwan Customs Tables. The
Government alleges that Mr. Huang imported the saccharin from China into Taiwan
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through LH Chemical, and exported same to the United States through LH Trading.
Pl.’s Opp’n at 4-5.
Among the information included in the import table is that related to the “date of
import declaration,” “Taiwanese buyer,” “commodity description” (i.e., mesh sizes),
“quantity,” and “weight.” See Taiwan Customs Tables at ECF p. 5. Likewise, the export
table includes information for “date of export declaration,” U.S. buyer, “Taiwanese
exporter,” “commodity description,” “quantity,” and “weight.” Id. at ECF p. 6. The
Government contends that the 16 entries into the United States from 2009 to 2012
“‘correspond’ to shipments of saccharin from China to Taiwan.” DSOF ¶ 52; PCSOF
¶ 52. There is, however, conflicting evidence on whether these entries truly
“correspond.”
First, the parties dispute whether Mr. Huang was the president of both LH
Chemical and LH Trading. See PCSOF ¶ 186; Def.’s Resp. to PCSOF ¶ 186. In
response to the letter rogatory, Mr. Huang testified that LH Chemical and LH Trading
are not the same companies and he has “nothing to do with LH Chemical.” Huang
Letter Rogatory at 2-3, 7. However, several of Univar’s internal documents and
documents presented to the FDA and the Orthodox Union indicate that Mr. Huang was
the president of LH Chemical or that LH Chemical was the manufacturer of the
saccharin that Univar purchased from Mr. Huang. See, e.g., Dep. Exs. 214, 215, 314;
see also Chang Dep. 58:19-59:9 (identifying LH Trading as the supplier of Univar’s
saccharin, and LH Chemical as the manufacturer); DSOF ¶ 124 (citing Biggs. Dep.
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115:25-116:13) (where Mr. Biggs identified “Long Hwang Chemical” as “William
Huang’s saccharin plant”).
In addition, the parties disagree on whether the “mesh sizes” in the tables
correspond to the actual sizes shipped. See DSOF ¶¶ 70-71, 76-79; PCSOF ¶ ¶¶ 70-
71, 76-79. While the Taiwan Customs Tables show some differences in mesh sizes
between imports and exports, such differences may be explained by nothing more than
inaccuracies, as demonstrated by evidence of customer complaints to Univar about
receiving mislabeled saccharin. See PCSOF ¶ 231; Biggs Dep. 213:5-23; Dep. Ex.
165.
In sum, the court’s inquiry is to determine whether “there are genuine factual
issues that properly can be resolved only by a finder of fact because they may
reasonably be resolved in favor of either party.” Anderson, 477 U.S. at 250. Based on
the evidence presented, the court finds that whether Univar misrepresented the country
of origin with respect to the 2009-2012 entries is an issue requiring submission to the
jury.
C. Culpability
1. 	Univar Has Not Established that it Acted with Reasonable Care
As discussed above, pursuant to the statutory negligence provision of § 1592,
Customs has the burden to show that a materially false statement or omission occurred
in order to shift to the Defendant the burden to establish affirmatively that it “exercised
reasonable care under the circumstances.” Ford Motor Co., 463 F.3d at 1279; 19
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U.S.C. § 1592(e)(4). Univar has not established that it acted with reasonable care
under the circumstances.
There is no genuine dispute that after Commerce issued the antidumping duty
order, Mr. Biggs consulted the World Wide Directory of Chemical Producers to search
for non-Chinese manufacturers [of saccharin]. DSOF ¶ 139; PCSOF ¶ 139; Def.’s
Mem. at 18. As of October 2003, Univar had located Mr. Huang, DSOF ¶ 140; PCSOF
¶ 140; see also PCSOF ¶ 191; Dep. Ex. 288 at UNIVAR_013664-013665, and began
the process of approving LH Trading/LH Chemical as a supplier, PCSOF ¶ 195; Dep.
Ex. 179. Univar registered these companies with the FDA and provided the physical
address of these companies to the federal agency. See Dep. Ex. 215; Chang Dep.
58:3-59:12. When Mr. Biggs subsequently visited Mr. Huang in April 2004, to “inspect[]”
the “new supplier,” the factory he toured was located at an address different than that
provided to the FDA. See DSFO ¶ 124; PCSOF ¶¶ 124, 185, 189-90; Def.’s Resp. to
PCSOF ¶¶ 185, 189-90. Mr. Huang informed Mr. Biggs that he owned the factory that
Mr. Biggs toured, PCSOF ¶ 187; Def.’s Resp. to PCSOF ¶ 187; however, the factory
was owned by HTC, PCSOF ¶ 190; Def.’s Resp. to PCSOF ¶ 190.
Shortly after Univar began importing the saccharin it purchased from Mr. Huang,
Univar received notice from a U.S. producer, PMC, that it believed Mr. Huang was not
producing saccharin, but importing Chinese product and relabeling it. PCSOF ¶ 205;
Pl.’s Attach. 1 at Univar_066462. Univar requested from Mr. Huang “any proof . . . to
kill this question.” PCSOF ¶ 205; Pl.’s Attach. 1 at Univar_066462. Mr. Huang’s
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response suggested that Mr. Biggs’s visit to the factory in 2004 was “good proof.”
PCSOF ¶ 206; Pl.’s Attach. 1 at Univar_011207.
Sometime in late 2004, Univar provided a sample of the saccharin it purchased
from Mr. Huang to PMC for testing. PCSOF ¶ 209; Dep. Ex. 310; see also DSOF ¶ 158
(citing Biggs. Dep. 150:3-5). After conducting the lab tests, PMC informed Univar that it
was “99.99 [percent] convinced” that the saccharin originated in China, not Taiwan.
PCSOF ¶ 209; Dep. Ex. 310 at Univar_011211. There is no evidence that Univar took
any affirmative steps to investigate this claim. Cf. DSOF ¶ 98; PCSOF ¶ 98 (Mr. Biggs
“distrusted PMC’s claim” because Univar commonly encountered U.S.-based
companies that had a “false” “understanding of what was going on in China”).
In September 2004, Pepsi, a Univar customer, asked Univar whether Mr.
Huang’s factory was purchasing “the base product from China.” PCSOF ¶ 208; Dep.
Ex. 317 at Univar_066447; see also Compl. ¶ 16; Answer ¶ 16 (establishing that Pepsi
is a Univar customer). The following month, Univar requested confirmation from Mr.
Huang regarding the origin of the “original saccharin molecule” used in the production of
acid saccharin. 	PCSOF ¶ 210; Dep. Ex. 311. This communication from Univar to Mr.
Huang (through Mr. Chin) suggested what the “the ‘best’ answer” should be: “that no
raw materials originating from China were used in the production of the acid saccharin.”
Dep. Ex. 311. Mr. Huang’s response on the following month, November 2004, indicated
that Mr. Huang sourced his acid saccharin from two Japanese producers. Huang Nov.
2004 Fax. “Univar knew it had an affirmative duty to ensure the source of its imports,”
DSOF ¶ 157; PCSOF ¶ 157; however, it never contacted any of Mr. Huang’s purported
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suppliers to verify the accuracy of Mr. Huang’s statements, PCSOF ¶ 214; Def.’s Resp.
to PCSOF ¶ 214.
In April 2006, Mr. Biggs received yet another communication from a Univar
colleague informing him that it was “mentioned via a competitor that rumor has it that . .
. Univar has already been buying Chinese material.” PCSOF ¶ 216; Dep. Ex. 322;
Biggs Dep. 182:9-1:16, 183:6-12. Mr. Biggs did not take any steps to investigate this
claim. Cf. Biggs Dep. 183:14-22 (his reaction to this email was to “chuckl[e]”; he
believed “there was a history of bad-unreliable information from this buyer”). The
following year, Univar received a similar notice. See PCSOF ¶ 217; Dep. Ex. 323 at
Univar_012851 (January 2007 notice from customer that heard Univar was purchasing
“product that is actually manufactured in China then shipped to Taiwan and then
repackaged and marked as manufactured in Taiwan”).
In November 2008, Mr. Lombard, who owned a company that was assisting
Univar in selling excess saccharin inventory, warned Univar that the Taiwan saccharin
was in fact Chinese product. See PCOF ¶ 218; Dep. Ex. 259 at Univar_014646. Mr.
Lombard made those statements on “information supplied by . . . PMC as well as
information that [he] could or could not find on the internet about manufacturing of
[s]odium [s]accharin in Taiwan.” DSOF ¶¶ 111-13; PCSOF ¶¶ 111-13 (alteration in
original). It appears that Univar continued to rely on Mr. Huang’s assertions without
conducting further inquiry. See PCSOF ¶ 218; Dep. Ex. 325 (fax from Mr. Huang to Mr.
Biggs stating: “we told you the truth,” and “we absolutely have not imported Chinese
made saccharin acid . . . please don’t worry”) (capitalization omitted).
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Around this time frame, Rabbi Talmid from the Orthodox Union flew to Taiwan
three times to inspect the saccharin factory so that the Orthodox Union could continue
to certify it as kosher. See Talmid Dep. 53:1-68:13; Biggs Dep. 218:6-9, 219:12-220:4.
Univar was aware that between 2007 and 2012, the Orthodox Union was unable to
inspect Mr. Huang’s factory. Biggs Dep. 218:6-9, 219:12-220:4. Mr. Biggs testified that
he was aware the Orthodox Union “was having trouble gaining access to Mr. Huang’s
facility in Taiwan” and “[did not] recall [the Orthodox Union] reporting other incidents like
that.” Biggs Dep. at 220:3-4.
On February 2, 2010, ICE informed Univar that the company was under
investigation for “possible transshipment of saccharin manufactured in [China] in order
to avoid payment/deposit of anti-dumping duties associated with the commodity.”
PCSOF ¶ 220; Dep. Ex. 12 at Univar_065600. Nonetheless, after receipt of the ICE
letter, Univar continued importing saccharin purchased from Mr. Huang for more than
two years. PCSOF ¶ 220; DSCOF ¶ 220. Even in light of the repeated rumors and
warnings it received and the Orthodox Union’s inability to access the plant, Univar did
not seek to visit Mr. Huang’s purported factory until 2012, after the company learned of
the investigation involving the entries at issue. PCSOF ¶ 223; Def.’s Resp. to PCSOF
¶ 223; see also DSOF ¶ 151; PCSOF ¶ 151.
Univar relies on its receipt of a certificate of origin from the Kaohsiung Yuan City
Chamber of Commerce for each of the 36 entries as demonstrating that it exercised
reasonable care. However, the Kaohsiung Yuan City Chamber of Commerce issues the
certificates of origin as “a routine business activity,” DSOF ¶ 132; PCSOF ¶ 132, upon
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receipt of an application by an exporter and “on the basis that the customs declaration
information is verified to be correct,” Chamber of Commerce Test. ¶ 4. There is no
indication that the Kaohsiung Yuan City Chamber of Commerce independently
scrutinizes exporters’ facilities.
Univar also relies on its receipt of kosher certifications from 2005 to 2012 by the
Orthodox Union as demonstrating that it acted with reasonable care. Def.’s Mem. at 38,
40. While the Orthodox Union testified in this proceeding that it “take[s] its certification
process seriously” and would “[n]ot knowingly . . . certify a product as kosher if the
requirements of Jewish religious law are not met,” DSOF ¶ 116; PCSOF ¶ 116
(alteration in original), it also continuously certified Mr. Huang’s plant as kosher despite
an inability to inspect the factory on at least three occasions, see Talmid Dep. 53:1-
68:13; Biggs Dep. 218:6-9, 219:12-220:4; DSOF ¶ 145; PCSOF ¶ 145. In order to re-
certify a product as kosher, the Orthodox Union requires annual inspection of the
production facility. Talmid Dep. 60:9-15; see also id. 58:21-59:1.
Univar further points to the facts that it provided PMC a sample of its saccharin
for lab testing and later participated in a “mock audit,” which concluded that Univar is a
“good importer” with a culture of compliance. Def.’s Mem. at 38-39. However, Univar
appears to have taken no action when PMC suggested that its lab results indicated the
saccharin was of Chinese origin, and it is unclear to what extent Univar’s saccharin
practices were the focus of the mock audit.
Univar asserts that Mr. Biggs’s conclusion in 2004 that the factory he toured
produced saccharin aligns with that of Univar’s chemistry expert, Dr. Chyall, who
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reviewed Mr. Biggs’s factory tour photos and determined that “the chemical factory
visited by Mr. Biggs in 2004 is capable of producing saccharin sodium and acid
saccharin.” Id. at 37 (quoting DSOF ¶ 125). While that may be true, in light of the
foregoing discussion, Univar’s failure to revisit its 2004 conclusion that its saccharin was
coming from Taiwan could be found to be a failure to exercise reasonable care by the
jury. 42
2. 	Whether the Government Can Establish Univar Acted with Gross
Negligence is a Triable Issue
As previously discussed, establishing gross negligence requires Plaintiff to prove
that Univar acted “with actual knowledge of or wanton disregard for the relevant facts
and with indifference to or disregard for the offender's obligations under the statute.” 19
C.F.R. Pt. 171, App. B(C)(2); see also Ford Motor Co., 463 F.3d at 1292 (“An importer
is guilty of gross negligence if it behaved willfully, wantonly, or with reckless disregard in
its failure to ascertain both the relevant facts and the statutory obligation, or acted with
an utter lack of care.”).
42 Evidence indicates that Univar’s actions may have been motivated by a financial
incentive. In 2008, the market experienced a shortage of sodium saccharin. Biggs
Dep. 198:1-5; see also PCSOF ¶ 241; Def.’s Resp. to PCSOF ¶ 241. In April 2008,
Univar expressed that “the shortage has obviously been good for Univar.” PCSOF
¶ 242; Dep. Ex. 328 at Univar 068865; see also PCSOF ¶ 245; Dep. Ex. 306 at
Univar_006796 (“Due to the very rapidly increasing pricing, this volume now translates
for Univar to a $30 million/[year] business!”), Univar_006794 (establishing date of
document). By the end of 2008, the price of saccharin had dropped, although it is
unclear at what rate. See Def’s Resp. to PCSOF ¶¶ 241-43; Def.’s Reply, Attach. 71
(David Hansen Dep.) 40:7-41:21, 43:8-44:11, ECF No. 161-3.
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The undisputed facts establish that “Univar knew that it had an affirmative duty to
ensure the source of its imports.” DSOF ¶ 157; PCSOF ¶ 157. Because of this
uncontroverted fact, Univar asserts that the Government is unable to establish that
Univar failed to ascertain its “statutory obligations” with regard to the antidumping duty
order or reporting the proper country of origin. Def.’s Mem. at 41-42 (emphasis omitted)
(citation omitted). However, Plaintiff has presented sufficient evidence in the form of
Univar’s limited follow-up on questions about the origin of its saccharin after Mr. Biggs’s
2004 visit to HTC’s plant, which could lead a reasonable jury to find by a preponderance
of the evidence that Univar was indifferent to or disregarded its statutory obligations,
and therefore acted with gross negligence. See supra Discussion III.C.1; 19 C.F.R. Pt.
171, App. B(C)(2); Ford Motor Co., 463 F.3d at 1292.
Alleged Procedural Violations
Univar argues that the Government’s penalty claims should be dismissed for
failure to comply with the statutory obligations pursuant to § 1592(b)(2). Def.’s Mem. at
42-44. Univar asserts that the Government failed to meet the requirements of
§1592(b)(2) when, after reviewing Univar’s petition for mitigation, it determined, that
“‘the penalty notice does not include the material facts supporting CBP’s allegation[s]’ of
Chinese origin and gross negligence.” Id. at 43 (alteration in original) (quoting DSOF
¶¶ 171-73). According to Univar, at that point, CBP should have issued a decision
setting “forth the final determination,” rather than remanding the case to CBP
headquarters. Id. (emphasis omitted) (citing United States v. Tip Top Pants, Inc., 34
CIT 1020, 1027 (2010)). The Government contends that the obligation to end the
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§ 1592 proceeding was not triggered when CBP reached the partial decision, and
Univar points to no evidence “that CBP had concluded that there was no violation.” Pl.’s
Opp’n at 27-28.
If, after issuance of the pre-penalty notice and consideration of any
representations by the person concerned, “the Customs Service determines that there
was a violation [of 19 U.S.C. § 1592(a)], it shall issue a written penalty claim to such
person.” 19 U.S.C. § 1592(b)(2). Thereafter, the interested person may file a petition to
mitigate the penalty. See 19 U.S.C. § 1618 (CBP “may remit or mitigate the [penalty]
upon such terms and conditions as he deems reasonable and just”). “At the conclusion
of any proceeding under [19 U.S.C. § 1618], the Customs Service shall provide to the
person concerned a written statement which sets forth the final determination and the
findings of fact and conclusions of law on which such determination is based.” 19 U.S.C
§ 1592(b)(2). Customs regulations further provide that, “[i]f a petition for relief relates to
a violation of section[] 592 . . ., the petitioner will be provided with a written statement
setting forth the decision on the matter and the findings of fact and conclusions of law
upon which the decision is based.” 19 C.F.R. § 171.21.
“On October 1, 2014, CBP issued its penalty notice.” DSOF ¶ 169; PCSOF
¶ 169. On October 31, 2014, Univar submitted its petition for relief, DSOF ¶ 171;
PCSOF ¶ 171, pursuant to 19 U.S.C. § 1618. 	CBP Headquarters reviewed Univar’s
petition for relief and “provided a ‘partial decision,’” asserting that “the penalty notice
[did] not include the material facts supporting CBP’s allegation that the saccharin was of
Chinese origin and supporting a degree of culpability of gross negligence.” DSOF
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¶¶ 172, 173; PCSOF ¶¶ 172, 173. Thus, CBP Headquarters denied without prejudice
Univar’s petition for relief and remanded the case back to the CBP office “to issue an
amended penalty notice that includes the material facts supporting CBP’s allegation that
the saccharin was of Chinese origin and supporting a degree of culpability of gross
negligence.” DSOF ¶ 174; PCSOF ¶ 174.
CBP’s partial denial of Univar’s petition did not conclude the proceeding under 19
U.S.C. § 1618. See 19 U.S.C. § 1618 (noting CBP’s option to “order discontinuance of
any prosecution relating” to a fine or penalty incurred “without willful negligence . . . or
intention . . . to defraud the revenue or to violate the law,” or in circumstances when
CBP “finds the existence of such mitigating circumstances as to justify the remission or
mitigation of [the penalty]”). Instead, CBP Headquarters requested an amended penalty
notice containing the factual information “supporting CBP’s allegation that the saccharin
was of Chinese origin and supporting a degree of culpability of gross negligence.”
DSOF ¶ 174; PCSOF ¶ 174. On February 10, 2015, CBP issued an amended penalty
notice to Univar. DSOF ¶ 175; PCSOF ¶ 175.
Defendant’s reliance on Tip Top is inapposite. Tip Top’s holding is dependent on
Customs, in that case, having conceded that its allegation in the penalty notice was not
a violation of section 1592. Tip Top, 34 CIT at 1027. The Tip Top court reasoned, “[a]t
that point, [CBP] was required to set forth the decision on the matter, . . . including in
particular the negative conclusion of law it had reached, in the written statement
required by [19 U.S.C. § 1592(b)(2)], thus bringing to an end the proceeding under such
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[§] 1618 to which [19 U.S.C. § 1592(b)(2)] refers.” Id. at 1027 (citations omitted)
(internal quotation marks omitted).
CBP made no such non-violation determination in this case. Instead, it issued a
partial decision denying, without prejudice, Univar’s petition for relief and remanded the
case to CBP with instructions to issue an amended penalty notice that includes the
material facts supporting the allegations. CBP maintained that Univar violated § 1592
throughout and provided additional material facts to support that conclusion. Cf. 19
U.S.C. § 1592(b)(2) (“If the Customs Service determines that there was a violation, it
shall issue a written penalty claim to such person.”) Accordingly, Univar’s claims of
procedural violations by CBP are without merit.
CONCLUSION AND O RDER
For the foregoing reasons, Univar’s motion for summary judgment will be denied.
Accordingly, it is hereby
ORDERED that Defendant Univar USA Inc.’s motion for summary judgment
(ECF No. 143) is DENIED; it is further
ORDERED that no later than November 28, 2018, the parties shall file, via
CM/ECF, a proposed Pretrial Order, substantially in the form of Standard Chambers
Form 1–1 (SCP 1–1), including all Schedules provided for therein.
/s/ 	Mark A. Barnett
Mark A. Barnett, Judge
Dated: 	November 13, 2018
New York, New York
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