Legal Case Summary

Thank you. Our next case is Cleo, Incorporated Versus the United States. Mr. Trossovan? Good morning, Your Honors. There are two fundamental issues in this case. The Commission's failure to determine the like products that accordance with statute and the Commission's failure to take into account factors unrelated to dumping which caused virtually all of the decline in the industry's performance. The police is the court. I will discuss the like product issue and my colleague, Mr. Iconson will address the remaining issue. What should be the standard of review here? The standard of review is the standard of review applied in the lower court, which is... Why do we redo what the lower court does? You will review the lower court's decision to know about applying the same standard. Why do we redo what they do? They did something. Shouldn't that be given some sort of difference? You're on or I'm under the case law. The court here is to step into the shoes of the Court of International Trade and ensure that the court reached the right conclusion by applying the standard to which that court was to have applied in the first instance. You're aware this is a somewhat controversial issue and has been for some time. Yes, Your Honor, I am aware of that. What would you advise us to do? Your Honor, I would advise you to look at this denobo under the standard of review established under Chevron in terms of... Because you want us to reverse the law. Because you want us to reverse

. Yes, we want you to reverse. We'll ask the other party as well. That's right. The statutory construct for the injury analysis is based on market economics. This price, volume and impact all considered in the context of the business cycle and conditions of competition. And the definition of like product is the foundation of that market based analysis. What's the most important argument that these are different products? Do you think? I think the most important argument is that when you look at the facts, there is no question that these products are absolutely distinct in the market. Why don't you say what you just said? The price is so different. It's not just the price is so different. But what isn't the price probably the best indicator of difference in the marketplace? What's the best indicator of the marketplace? I'm helping you out here. Well, the price is certainly one indicator. Everything tells you that these products have absolutely no relationship in the market. Price, distribution, customer base, production, none of them is the same. And so you've reached the fundamental point that what you have is a situation in which imports of consumer tissue. No matter what the price, no matter what the volume are not going to affect performance in the bulk tissue market. And the same is the reverse result, so true. No matter how many bulk tissue imports you have, no matter what the price, it's going to have no impact on the consumer tissue market. Because the relationship of the products in the market, as you can see in the six factor analysis, is so distinct that there is no mechanism within the market for one type of import to impact the other industry. And so that's why I'm saying that in that sort of a situation, and when you look at the case law, you see that type of market-based analysis where when you have that kind of a situation like with auto glass or gift boxes or anything. And they're going to tell us in just a second that 43% of the market is all white tissue paper anyway. The two products that are in the market are packages of consumers. Right, but the product that is sold in the market is either a package of consumer tissue folds that is consumer ready for a retailer to put on display versus a big carton of bulk tissue paper that you can bring in as a store supply item

. It doesn't matter what the sheet size or color is in that carton. You cannot use it for, if you are a retailer looking for a consumer-ready product, you cannot buy that bulk tissue box. I don't care what's inside it. But in the same true if you are looking for bulk tissue as a supply item, you are not going to go out and buy 200, 300 or 400 packs of consumer-ready tissue. No matter what color they are. If I understand how far your argument goes in this direction, it's a pose that we're talking about breakfast cereal of some sort, corn flakes for lack of a better example. Would you say that corn flakes, exactly the same flakes, but on the one hand category A, flakes that are sold in very large containers to institutions, schools, or hospitals, or whatever. On the other hand, flakes that are sold in grocery stores in smaller boxes are different products. They're not, it will depend on the facts. It will depend on how you see, not just the packaging. That's one factor. But you would have to look at other factors such as how they're distributed and who's making them, and what the price differential are. And all of those things, because what you are looking for is, is there a relationship such that if you're going to look at the imports of one, can the market impact, that those imports, excuse me, is there a mechanism where that impact can be transmitted from one product to the other? If it can be, which is what the commission found, for example, in bicycles, high-end bikes and low-end bikes, but they said, you know, there's enough of an overlap in the middle for customers, enough common demand, that you have a transmission mechanism. You do not have that transmission mechanism. Why don't there's some evidence though that consumer packages of largest 400 sheets are now being sold and purchased? There is less than 10% of the market is a seasonal club pack. It is a consumer tissue item that, one time a year, I don't believe they're normally 400 count, but yet you can get 100 or 200 count packs. And a seasonal thing, it's still a consumer item. It's once a year. It's a very small segment of the market, but they're still not competing. They're still not competing for the business supply items that the department stores are buying. In cartons. Would you like to give some time to Mr

. Iconson? Yes, that would be just perfect. Thank you. Mr. Iconson? I'm going to please the court. The pivotal issue in this case apart from like product is how did the commission handle the special circumstances relating to Cleo and Crystal? Cleo and Crystal during this period of investigation were part of the domestic industry. But in the last full year of the commission's investigation period, they shut down production because of disruptions to the to critical supplies. As a consequence of the shutdown, the business and financial performance indicators showed declines, naturally declines in production, capacity, shipment, sales, profits, employment, and so on. Cleo's and Crystal's indicators were then aggregated with those of other domestic producers to provide a portrait of what the industry looked like. And the commission found that the industry was experiencing injury by reason of dumped inputs. Problem is, Cleo's and Crystal's negative performance indicators were not close by dumped inputs and an examination of the industry without Cleo's and Crystal's numbers do not reveal an industry that has been injured. Now, let's look at the most salient facts right here. Prior to October 2002, Cleo had been a distributor and essentially an importer of subject tissue paper. In October 2002, its business model underwent a sea change. It purchased the largest producer in the United States of tissue that was Crystal Creative Products. For that purchase, it paid $40 million. It also entered into a renewable substantial supply contract with the paper material called jumbo roll. And it developed a plan to use its newly acquired production facility in Kentucky to supply approximately 80% of its customers' requirements. About three months later, something totally unexpected happened. They're a material supplier shutdown, and the paper mill shutdown. Secondly, almost on the heels of that disappointment, they're a rotiver of printer shutdown. Cleo needed these two supplies to service its customers. Obviously needed paper to make a finished tissue

. It needed rotiver printing to satisfy one of its most important customers. So, Cleo had to scramble to determine what could it do. The production season was starting for the next holiday season. It had to determine whether it could find a substitute supplier or either. And it ended up concluding that it could not for reasons which we've discussed in our race, much of which are related to very confidential information that's under protective order. So, I'm not at liberty to go into too much detail regarding that. But they reached the decision that they could not continue to produce in the United States. And they made the decision of closing down production. And they had a turn to imports to satisfy the requirements of their customers. Now, the majority commissioners expressed misgivings about the Cleo's management decision. They, based on a staff interview of a salesperson, a base supplier, the commission of the jargon determined that Cleo could acquire product from this supplier. Even though Cleo's management determined that there would be problems with that supplier. Secondly, Cleo made the decision that it needed rotiver printing to satisfy a very important customer. And this is in the records that he was targeting. The commissioners determined that notwithstanding evidence in the record that shows what a river of printing is superior to Flexographic printing. The commissioners said Flexographic printing was suffix. There was available Flexographic supply. This is the kind of decision that could be made by board of directors questioning management's decision. It's a very unusual decision for the commission to make. But it's tasked with the responsibility of determining whether domestic industry is being injured by imports. You know your end-year bottle. Yes, I will speed up

. I do want to save some time. Okay. The majority commissioners, so they made the determination that Cleo's management decision was wrong. And still, they were left with the question of why would Cleo have Cleo be injured by imports? It really was injured by this disruption to its supply, even if its management decision was wrong. Which we don't acquiescent. As a matter of fact, we argue that there was not substantial evidence in the record to support the commission's determination. But even if the commission were correct, it doesn't indicate that there was a cause of this injury was due to increased imports. The imports came afterwards. After Cleo determined that it could not produce with the existing supplies, they don't have to import to meet its customer's requirements. The commissioners tried to support their position by saying, well, Cleo was an import or anyway. Crystal had imported in the past. But these are totally irrelevant. Cleo was an import before it decided to become a US producer. And the fact that Crystal import in the past really means nothing. Cleo made the decision, he wanted to be a US producer and it purchased Crystal. So I really believe that the commission got it wrong. They would have been better to advise to follow the outtics case, the outtics decision in which one producer in the United States was skewing the portrait of the industry because it was not injured. The claim wasn't injured by imports, but it was in bankruptcy. And its numbers adversely affected the numbers of the whole industry. So we would hope that this court would agree with the reverse and remand. Thank you, Mr. Racken

. Mr. Rees? Good morning, Your Honor. What should be our standard of review? Your Honor, I think the proper standard would be the one that has been most recently articulated. The standard, the standard is that I understand it and I am thinking of the step on steel case. And there the panel described the standard of review, the standard of review that your Honor is considered and the statute. You want us to redo exactly what the Court of International Trade did or not. That's Lightning Sugar. We want to follow it, Lightning Sugar or not. I would really like it if the Court gave great weight to the informed opinion of the Court of International Trade Judge Farzaway. And in fairness, I can talk about informed opinions. To what extent is your, how has that changed when you have a 3-3 commission vote? You know, I think you live by the sword, you die by the sword. I think you have to, an informed opinion of the Court of International Trade under this framework of judicial review. It's always a starting point. I think that leaves room for the commission in a case in which it thinks the judge might have gotten something wrong. It does leave that necessary room to argue. But at the same time, counsel on the other side can do the same. Please proceed with your argument at this point. Well, with that and with this informed opinion and sort of the backdrop that brings us here, I wish to address both of these points that were made, the first about the domestic light product and then the second about this business about a Cleo. In terms of the price difference, isn't that pretty indicative of the difference in product? It's a good question. Price is one factor of six. And in fact, when you have a.

.. But it's a pretty important factor in a marketplace, isn't it? Well, it indicates a market segment and what the consumers acknowledge is the price. Well, it's because, frankly, the light product inquiry really isn't about analyzing what are their market segments. And I guess that's a fundamental distinction, a methodological distinction that I would have with counsel on the other side. Ultimately, the purpose of the light product inquiry is not to get to these ultimate questions of competition and causation, which is way when you get to material injury. Well, we can flip through some of the others. You know, 11 of the 12 producers use exclusively one of the other, consumer or bulk. Packaging is different, which calls into play our folding boxes case. Only three of 20 purchasers were surveyed, thought that they were interchangeable. We're starting to look now at more factors than just price. Right, and I think that's the proper way to approach the issue. It's from the ground up. It's not starting from always doing different markets here. Let's apply that and let that color our judgment on the six factors. It's really a ground up analysis starting from, geez, what physical uses and characteristics. The idea that you would ignore that the underlying product is identical, the tissue papers identical. You were about to say, I think, that it's not a question of whether these products compete with one another. But, and how would you characterize, then what it is we're looking for? It's really ultimately what you try to get right at this stage of the analysis is defining the domestic industry. In fact, at this stage, in a case like this, where you have... Okay, 11 of 12 produce one or the other

. End of case, right? You lose right there. Except your honor when you consider the production, their share of production wanted it. It's not simply a matter of, well let's add up, they're 11 of 12. In fact, in this case, it's a very significant portion. Even if you look at the end of the period, and that number actually jumps way up if you look at 0-1 and 0-2 and all that information is in the... ...in the record appendent. So, in terms of the domestic, actually I think the domestic producers, that's a factor that really weighs heavily in favor in the consideration. So, I would actually looking at the same facts, and I appreciate that the difference come to the absolute opposite conclusion. And I guess perhaps that's a lot of what's involved here with these very fact intensive cases that don't necessarily... Well, so we have... there's a six factor test, right? Well, what are those six factors go to? We don't just create six factor tests unless they cohesively fit together to sort of analyze a single issue. And so your ex-position of the single issue is what the domestic industry is? That's what it is. Isn't that, you know, what is this competing against? I mean, isn't it sort of going back to Judge Bryson's characterization? Well, it's a

... yes, it's a question of what you're asked ultimately is an injury being injured? And then the industry... And your three products don't compete with each other generally. How is the industry being injured? Well, that's just it. If they're not competing at all, if subject imports aren't competing with a domestic-like product, then you've got a serious causation question. But here, remember, we're looking at the domestic-like product, and we're saying, because we've got product that corresponds to the scope, we're looking within the domestic industry, should there be lines drawn, should there be one or more products? Well, we're actually looking at domestic pieces of the equation. We haven't even gotten to the question. What about the domestic versus the important product? And on that question, I would submit, I completely disagree with the suggestion that there's a lack of substitutability here. There's a whole argument, I think, that if the like product analysis, we don't win on that, and it's... You had to think of this market as strictly segmented. And of course, the commission didn't find that. And I think part of the problem is, when you hear this sort of argument, the issue tends to be, or what you'd expect to hear, is the subject imports are competing in a different segment. Like the big lighter case that we cite was high-end and low-end, maybe the industry isn't high-end and the imports are in the low-end. You've got some questions to grapple with. Here, it's bulb and consumer that Council's talking about. And the domestic industry makes both. And the subject imports are above

. We say that domestic industry makes both, though, doesn't that assume the conclusion you're trying to reach, which is that there's a single domestic industry that produces both, as opposed to two different industries? Well, I get you're right. I'm racing ahead into my market segmentation, and the ultimate questions of competition here. Let me bring you back to the simple-minded example, but my cornflakes example would... It's assumed that Kellogg makes cornflakes that are both bulk and also in small packages for retail. And the importers only import bulk. And they're sold in entirely different channels to entirely different people. The prices are wildly different because of the cost of packaging, which is most of retail costs for these kinds of things. Anyway, would you say that it's very likely that they would be found to be the same single product for purposes of this kind of analysis? I guess it would depend on all of the married facts. I know that. But this is a little bit like the Pasta case, I think. But the trouble is, is that all of these facts, as you've conceded, can be looked at from both directions. We got a 3-3 vote at the commission. They looked at them and split 3-3. So what do you advise us to do? And doesn't this really bring the standard of review into question? Well, actually, I would submit that whether it's a 3-3 question... We were just looking at the commission and redoing the commission's work, maybe we can vote 3-3-2. If we're deferring, changes things. I think the court is, I would submit based on the standard of review. He's supposed to be deferring. This is not a sub-suffering. Not if you follow Atlantic sugar. Well, I think the difference is to the commission as fact-finder, as credibility-determiner, as in fact, even weighing the factors themselves. So not simply the subsidiary findings, which are its problems, but weighing of the factors. And Judge Barzley, very correctly, pointed out a like-product case decided, we said, our function's not to re-way, re-calibrate the factors in how we weigh them. That's the commission's function. Thank you, Mr. Rees. Do you want to save any time for Miss Cannon? I do. Yes. I'll leave it to Miss Cannon to address the Leo. Okay. You can do that. I'm... Please, the court. Thank you, Mr. Rees. A couple points. Let me just say on standard of review. I think in this particular

. This is not a sub-suffering. Not if you follow Atlantic sugar. Well, I think the difference is to the commission as fact-finder, as credibility-determiner, as in fact, even weighing the factors themselves. So not simply the subsidiary findings, which are its problems, but weighing of the factors. And Judge Barzley, very correctly, pointed out a like-product case decided, we said, our function's not to re-way, re-calibrate the factors in how we weigh them. That's the commission's function. Thank you, Mr. Rees. Do you want to save any time for Miss Cannon? I do. Yes. I'll leave it to Miss Cannon to address the Leo. Okay. You can do that. I'm... Please, the court. Thank you, Mr. Rees. A couple points. Let me just say on standard of review. I think in this particular... Where's the causation in light of the Leo problem? Where's the causation? The causation is that the imports were sold both in bulk and in consumer. An issue that they'd like you to ignore. They competed directly with the US producers products. There's mirrored examples of law sales. There were reverse internet auctions that were conducted frequently, where US producers lost substantial amounts of business, including its a public record, target random. And a reverse auction is no more than price, your honor. There's nothing to do with quality, fancy colors or anything else. You just simply go on the internet and your price, price, price until the lowest price is submitted and that wins the bid. My clients and other members of the industry were subject to that frequently and they lost business and they lost it on both bulk and consumer tissue. Your position I take it the point you began with is that the whole Cleo crystal argument is predicated on your opposing counsel winning on the separate product issue. Because once the products are viewed as the same, that issue takes on, if not, no way, at least it takes on considerably less force. I take it that's your position. I think that it does take less force, yes, your honor. I think that they're arguing that they've tried to make it also in the guise of even if the commission found a single-life product, they've tried to say that that would also influence the database because they're basically like Cleo and Crystal's data to be removed. Now there is a statutory provision that allows the commission to do that. It's called the related party provision. The commission found that was not applicable here and they have not challenged that here. So there was no satisfaction of the one legal provision that allows them to take that out. What they do instead want you to do is just close your allies to the Cleo imports and basically accept the testimony and really have folks on this. The bulk of their case was on the testimony of their president, Mr

... Where's the causation in light of the Leo problem? Where's the causation? The causation is that the imports were sold both in bulk and in consumer. An issue that they'd like you to ignore. They competed directly with the US producers products. There's mirrored examples of law sales. There were reverse internet auctions that were conducted frequently, where US producers lost substantial amounts of business, including its a public record, target random. And a reverse auction is no more than price, your honor. There's nothing to do with quality, fancy colors or anything else. You just simply go on the internet and your price, price, price until the lowest price is submitted and that wins the bid. My clients and other members of the industry were subject to that frequently and they lost business and they lost it on both bulk and consumer tissue. Your position I take it the point you began with is that the whole Cleo crystal argument is predicated on your opposing counsel winning on the separate product issue. Because once the products are viewed as the same, that issue takes on, if not, no way, at least it takes on considerably less force. I take it that's your position. I think that it does take less force, yes, your honor. I think that they're arguing that they've tried to make it also in the guise of even if the commission found a single-life product, they've tried to say that that would also influence the database because they're basically like Cleo and Crystal's data to be removed. Now there is a statutory provision that allows the commission to do that. It's called the related party provision. The commission found that was not applicable here and they have not challenged that here. So there was no satisfaction of the one legal provision that allows them to take that out. What they do instead want you to do is just close your allies to the Cleo imports and basically accept the testimony and really have folks on this. The bulk of their case was on the testimony of their president, Mr. Kelly, who said the reason we did this was because of the our inability to get these supplies. And what did the commission do? This is a classic he said, she said, case. It looked at the other evidence. My clients came in and they said Mr. Kelly told us he was going to China for low-priced airports. They looked at the SEC statement of the parent company of Cleo, which mentioned nothing about an inability to obtain supply. They looked at Cleo's actions after the case was filed. As soon as the case was filed magically, Cleo was able to resume operations. It was able to give jumbo rolls. It was able to get whatever it needed. It resumed production in the United States. Now, if it was not able to get these jumbo rolls, how could it have done that? There's so much evidence out there. There's a lot of confidential. Unfortunately, I can't arrest that on the record here. And frankly, that was where I was going to start. It was just to say that the information of the commission was able to analyze and that the lower court was able to analyze. And in camera session was heavily confidential in this case. And they looked at all of that. We had a very free airing of a lot of confidential information that we can't discuss before this court. They analyzed that in very intense detail, they weighed the evidence and they reached their conclusions. And that's precisely what their role is at the commission of the finder of fact and at the trial court level. Now, at this point, there's a high level of difference both to the commission and I would submit here to the lower court who was doing intensive, factual analysis, unlike a legal issue or something of that type that might come here

. Kelly, who said the reason we did this was because of the our inability to get these supplies. And what did the commission do? This is a classic he said, she said, case. It looked at the other evidence. My clients came in and they said Mr. Kelly told us he was going to China for low-priced airports. They looked at the SEC statement of the parent company of Cleo, which mentioned nothing about an inability to obtain supply. They looked at Cleo's actions after the case was filed. As soon as the case was filed magically, Cleo was able to resume operations. It was able to give jumbo rolls. It was able to get whatever it needed. It resumed production in the United States. Now, if it was not able to get these jumbo rolls, how could it have done that? There's so much evidence out there. There's a lot of confidential. Unfortunately, I can't arrest that on the record here. And frankly, that was where I was going to start. It was just to say that the information of the commission was able to analyze and that the lower court was able to analyze. And in camera session was heavily confidential in this case. And they looked at all of that. We had a very free airing of a lot of confidential information that we can't discuss before this court. They analyzed that in very intense detail, they weighed the evidence and they reached their conclusions. And that's precisely what their role is at the commission of the finder of fact and at the trial court level. Now, at this point, there's a high level of difference both to the commission and I would submit here to the lower court who was doing intensive, factual analysis, unlike a legal issue or something of that type that might come here. But of course, that's not our standard of review. Your standard of review is Atlantic sugar, which is that we do not give any difference to the lower court. Well, no, you're on the right. I would also submit I think in the Sermarica case that the court said that we consider the informed or Kenyan of the court. Sure, we've tried to kind of shine our dicta here. But your ultimate review in the court, the commission's decision is for the I agree. All I'm saying is that I think that the Sermarica principle that you should also consider what the lower court did is not something that should be rushed aside. If the lower court has in the case of like this where there's very factual intensive arguments and they've gone through a very close examination of each of those in a confidential hearing of the type that we had here, I don't think that you should ignore that. I think that's something to be considered as well when you're looking at what the lower court did. But I do agree ultimately if you are reviewing the commission's decision and hear that's critical because what did the commission do? The commission assessed the credibility of witnesses who spoke to them. They could look at them. They could assess their credibility. The commission looked at the physical samples of the product, the bulk tissue and the consumer tissue that they started off saying, oh, bulk is just all this white stuff that's used in stuffing shoes and we brought it all in and said, no, it's colorful, it's beautiful. Here it is. They went on a plant tour. Some members of the commission including Commissioner Himmler who voted in favor of one-led product finding that there was a lot of overlap in these manufacturing facilities. On that point, your honor. Let me just correct something. Earlier there was a question about 11 of 12 producers making only one or the other. That's not true. I would refer you to page 26 of our brief. It wasn't 11 of 12 but hesitant to get into actual numbers because they don't want to get into confidentiality here

. But of course, that's not our standard of review. Your standard of review is Atlantic sugar, which is that we do not give any difference to the lower court. Well, no, you're on the right. I would also submit I think in the Sermarica case that the court said that we consider the informed or Kenyan of the court. Sure, we've tried to kind of shine our dicta here. But your ultimate review in the court, the commission's decision is for the I agree. All I'm saying is that I think that the Sermarica principle that you should also consider what the lower court did is not something that should be rushed aside. If the lower court has in the case of like this where there's very factual intensive arguments and they've gone through a very close examination of each of those in a confidential hearing of the type that we had here, I don't think that you should ignore that. I think that's something to be considered as well when you're looking at what the lower court did. But I do agree ultimately if you are reviewing the commission's decision and hear that's critical because what did the commission do? The commission assessed the credibility of witnesses who spoke to them. They could look at them. They could assess their credibility. The commission looked at the physical samples of the product, the bulk tissue and the consumer tissue that they started off saying, oh, bulk is just all this white stuff that's used in stuffing shoes and we brought it all in and said, no, it's colorful, it's beautiful. Here it is. They went on a plant tour. Some members of the commission including Commissioner Himmler who voted in favor of one-led product finding that there was a lot of overlap in these manufacturing facilities. On that point, your honor. Let me just correct something. Earlier there was a question about 11 of 12 producers making only one or the other. That's not true. I would refer you to page 26 of our brief. It wasn't 11 of 12 but hesitant to get into actual numbers because they don't want to get into confidentiality here. But what I would encourage you to do is look at who was making what and how big they were because the critical factor here is not how many in a love pet camp there were but where the bulk of the production was being done and who was making both. And over the period of investigation, you will see that there was a huge overlap and it's on page 26 in brackets in our brief. Companies that were making both bulk and consumer tissue during this period of investigation. It would be like saying, well, three or four companies did it. If one company was making 1,000 pounds in the three companies, reaching only making 100, you might say three or four did it but still most of it was being produced in a common manufacturing facility. And that was what Commissioner Helmut had the opportunity to see at one of our producers at Seaman who does make both and uses the same equipment, the same processes and the same employees to do it. I would also follow up here on your question about the cereal because I think as Mr. Restor did to say this pasta case that the commission had is quite similar to that point. And pasta, pasta sold into a variety of different types of markets as well. But the commission found all pasta to be a single-like product. When you're looking at products like pasta or tissue paper, you always get a range of different types. You get a range of colors, you get a range of prices. Price is not and never has been one of the critical determining factors because the commission has always looked at a class of products and an industry producing that class of products consistent with the Senate report that told them, don't divide up and look at little teeny tiny types of products and include relief to an industry that's deserving of it. Look at a class and look at an industry abroad and that's what they did here. Mr. Iconson, you have a couple of minutes remaining. If it please the court, first, which is a state of charge of prices, the question is whether the court determines that there's a single-like product or a two-like product. The clearest position is the same. There would be injury. There would be no injury regardless. But your position is stronger if you went on the first issue. There's a stronger case with respect to consumer tissue

. But what I would encourage you to do is look at who was making what and how big they were because the critical factor here is not how many in a love pet camp there were but where the bulk of the production was being done and who was making both. And over the period of investigation, you will see that there was a huge overlap and it's on page 26 in brackets in our brief. Companies that were making both bulk and consumer tissue during this period of investigation. It would be like saying, well, three or four companies did it. If one company was making 1,000 pounds in the three companies, reaching only making 100, you might say three or four did it but still most of it was being produced in a common manufacturing facility. And that was what Commissioner Helmut had the opportunity to see at one of our producers at Seaman who does make both and uses the same equipment, the same processes and the same employees to do it. I would also follow up here on your question about the cereal because I think as Mr. Restor did to say this pasta case that the commission had is quite similar to that point. And pasta, pasta sold into a variety of different types of markets as well. But the commission found all pasta to be a single-like product. When you're looking at products like pasta or tissue paper, you always get a range of different types. You get a range of colors, you get a range of prices. Price is not and never has been one of the critical determining factors because the commission has always looked at a class of products and an industry producing that class of products consistent with the Senate report that told them, don't divide up and look at little teeny tiny types of products and include relief to an industry that's deserving of it. Look at a class and look at an industry abroad and that's what they did here. Mr. Iconson, you have a couple of minutes remaining. If it please the court, first, which is a state of charge of prices, the question is whether the court determines that there's a single-like product or a two-like product. The clearest position is the same. There would be injury. There would be no injury regardless. But your position is stronger if you went on the first issue. There's a stronger case with respect to consumer tissue. If you look at the consumer tissue industry and you look at the indicators of everyone in the industry absent. We have a stronger case with respect to the total industry assuming bulk and consumer makeup of single industry. We really do have the same argument. Several of the indicators that we identified in our brief really decline for bulk tissue when the bulk tissue database is correct. So that will again rely heavily on confidential information. Now when you say correct, this is the argument you made at the end of your brief with the bracketed numbers. The correction factor. The reason is. I'm familiar with it. So I just wanted to make sure I was on the right page, literally. Secondly, with regard to the related party provision that this cannot be decided. Again, the all six commissions disagreed with the argument about the related party provision. That didn't stop three commissioners from doing the causality assessment that we were asking them to do. One thing is nothing to do with the other. The related party provision is a special provision which if the commissioners find that applicable are free to exclude a company from the industry. But that really does not tie that if they find that the related party provision is not relevant. The commission commissioners are not tied. They are able to still study causality and assess it correctly. Miss Cannon referred to conversation between our client and her client indicating that Plio was going to be importing from China. The conversation she's referring to is back in 2000. Next, the resumption of business. The indicated that

. If you look at the consumer tissue industry and you look at the indicators of everyone in the industry absent. We have a stronger case with respect to the total industry assuming bulk and consumer makeup of single industry. We really do have the same argument. Several of the indicators that we identified in our brief really decline for bulk tissue when the bulk tissue database is correct. So that will again rely heavily on confidential information. Now when you say correct, this is the argument you made at the end of your brief with the bracketed numbers. The correction factor. The reason is. I'm familiar with it. So I just wanted to make sure I was on the right page, literally. Secondly, with regard to the related party provision that this cannot be decided. Again, the all six commissions disagreed with the argument about the related party provision. That didn't stop three commissioners from doing the causality assessment that we were asking them to do. One thing is nothing to do with the other. The related party provision is a special provision which if the commissioners find that applicable are free to exclude a company from the industry. But that really does not tie that if they find that the related party provision is not relevant. The commission commissioners are not tied. They are able to still study causality and assess it correctly. Miss Cannon referred to conversation between our client and her client indicating that Plio was going to be importing from China. The conversation she's referring to is back in 2000. Next, the resumption of business. The indicated that. Miss Cannon indicated that once the petition was filed, we resumed production in the United States and we therefore had no problems. But that's not the record shows. There were significant problems. Plio had to import, don't merchandise and think, do the audit because of the short to see. I see my red light was on. Thank you. Before council leaves Judge Price and has a point. I wanted to ask the parties have alluded on a couple of occasions to the confidentiality problem in this case. And I recognize that representations are made to various parties in exchange for their cooperation and the course of the investigation, etc. But unlike the court of international trade, of course, we don't do confidential and nonconfidential opinions. So this poses a problem for us. Let me ask first if there is any possibility that the council, I have a feeling I know what the answer to this is and I have a feeling that the answer is going to be no. But I'll ask anyway. Does any possibility among council that we can restrict and some generic form the scope of the requests for confidential treatment that are made in the briefs. Often we ask that question and people will say, well, there's really is nothing we care about. I take it from the references to deep confidential materials that there are things that people care about. Is there any way to limit the scope of what we're precluded from talking about? Because frankly, there's so much confidential information here that in any opinion we would write, we would have a minefield to walk through it, frankly. And it would be very easy to trip over something or just not to be able to write an opinion that would make any sense to a reader that's not fully advised to what stands behind these general questions to both council. Yeah, I'm asking everybody. Yes, I would say, you're on, I would not reflexively say no, I can assure you that speaking for myself and I suspect my colleagues, we all have enormous difficulties in writing the public version and then the confidential version of our briefs. We have to constantly review what was kept confidential. Much of this has become stale, but nonetheless we are not pretty to make that decision

. Miss Cannon indicated that once the petition was filed, we resumed production in the United States and we therefore had no problems. But that's not the record shows. There were significant problems. Plio had to import, don't merchandise and think, do the audit because of the short to see. I see my red light was on. Thank you. Before council leaves Judge Price and has a point. I wanted to ask the parties have alluded on a couple of occasions to the confidentiality problem in this case. And I recognize that representations are made to various parties in exchange for their cooperation and the course of the investigation, etc. But unlike the court of international trade, of course, we don't do confidential and nonconfidential opinions. So this poses a problem for us. Let me ask first if there is any possibility that the council, I have a feeling I know what the answer to this is and I have a feeling that the answer is going to be no. But I'll ask anyway. Does any possibility among council that we can restrict and some generic form the scope of the requests for confidential treatment that are made in the briefs. Often we ask that question and people will say, well, there's really is nothing we care about. I take it from the references to deep confidential materials that there are things that people care about. Is there any way to limit the scope of what we're precluded from talking about? Because frankly, there's so much confidential information here that in any opinion we would write, we would have a minefield to walk through it, frankly. And it would be very easy to trip over something or just not to be able to write an opinion that would make any sense to a reader that's not fully advised to what stands behind these general questions to both council. Yeah, I'm asking everybody. Yes, I would say, you're on, I would not reflexively say no, I can assure you that speaking for myself and I suspect my colleagues, we all have enormous difficulties in writing the public version and then the confidential version of our briefs. We have to constantly review what was kept confidential. Much of this has become stale, but nonetheless we are not pretty to make that decision. Because these were representations made to other parties than the parties that are sitting here today. That's true, including the Commission Commission staff. And it's very easy to, once I'm not careful to go on with the line, and it's an interesting thing. I'm not permitted to, but I may say your honor. I would be pleased to have a conversation with the Commission Council and the Police Council to see whether there's some opportunity to revise the confidential record or to see whether it's possible to make part of the public. So I would really confer to Commission Council, but who would have had much more experience than I, then this. Maybe if your co-council could, if you have anything to add to what Mr. I can say, and I said to say on this point, I think we're amenable to the police there. I think we're going to have a conversation. Well, you're honored to the extent that any of the information that is bracketed is information, for example, that my client has requested their information and they requested confidential treatment. I'd be happy to review that with them to see if there's any information that the passage of time that you have less concern about. Obviously, I can't speak to the information that's been provided by other parties. But I'm happy to go through that exercise. Do we want to? That would be helpful. Yeah, I mean, maybe the Commission Council on Private County Council can make on this. Would you like to comment? You can also assume that our clients, they're owning individual data. That's the third party data that's real. What do you do to the data that I was referring to about the right emphasis to get into before you, which is competent to do to either do the technical order that other companies submitted to the Commission in common and that year under Mr. Johnson's law of the life, how do you think it's not made in that company, Chad? No, I suppose, kind of commission. Unfortunately, you're on a, yeah, that puts us in a, in fact, a statute to early bound to maintain the confidentiality. Well, whatever could be worked out, it might facilitate. It's especially in terms of these

. Because these were representations made to other parties than the parties that are sitting here today. That's true, including the Commission Commission staff. And it's very easy to, once I'm not careful to go on with the line, and it's an interesting thing. I'm not permitted to, but I may say your honor. I would be pleased to have a conversation with the Commission Council and the Police Council to see whether there's some opportunity to revise the confidential record or to see whether it's possible to make part of the public. So I would really confer to Commission Council, but who would have had much more experience than I, then this. Maybe if your co-council could, if you have anything to add to what Mr. I can say, and I said to say on this point, I think we're amenable to the police there. I think we're going to have a conversation. Well, you're honored to the extent that any of the information that is bracketed is information, for example, that my client has requested their information and they requested confidential treatment. I'd be happy to review that with them to see if there's any information that the passage of time that you have less concern about. Obviously, I can't speak to the information that's been provided by other parties. But I'm happy to go through that exercise. Do we want to? That would be helpful. Yeah, I mean, maybe the Commission Council on Private County Council can make on this. Would you like to comment? You can also assume that our clients, they're owning individual data. That's the third party data that's real. What do you do to the data that I was referring to about the right emphasis to get into before you, which is competent to do to either do the technical order that other companies submitted to the Commission in common and that year under Mr. Johnson's law of the life, how do you think it's not made in that company, Chad? No, I suppose, kind of commission. Unfortunately, you're on a, yeah, that puts us in a, in fact, a statute to early bound to maintain the confidentiality. Well, whatever could be worked out, it might facilitate. It's especially in terms of these. I think that the court will come to your willingness to help us out here and perhaps, and I don't know, we don't want to impose a enormously burdensome process on you. But perhaps if you could meet maybe even now to see if there is some form of general restriction of the identification of confidential materials that would help us reduce the amount of pertinent material that we have to avoid referring to. That would be helpful. If it turns out that there isn't any global way to say, well, all material that is described in part two of the, or whatever, if there's no way to do it in a global way and all you would be doing is saying, well, you know, this particular number comes from 2001, and I guess nobody cares about that, and that number comes from 2002, and therefore that's all right, but anything after that, no. So then that probably isn't worth having you go through lengthy exercise to do, but if you could explore the possibility and report back to us, that would be helpful. Thank you. Thank you. All right. Thank you. The honorable board is adjourned until tomorrow morning. Back to the clock.

Thank you. Our next case is Cleo, Incorporated Versus the United States. Mr. Trossovan? Good morning, Your Honors. There are two fundamental issues in this case. The Commission's failure to determine the like products that accordance with statute and the Commission's failure to take into account factors unrelated to dumping which caused virtually all of the decline in the industry's performance. The police is the court. I will discuss the like product issue and my colleague, Mr. Iconson will address the remaining issue. What should be the standard of review here? The standard of review is the standard of review applied in the lower court, which is... Why do we redo what the lower court does? You will review the lower court's decision to know about applying the same standard. Why do we redo what they do? They did something. Shouldn't that be given some sort of difference? You're on or I'm under the case law. The court here is to step into the shoes of the Court of International Trade and ensure that the court reached the right conclusion by applying the standard to which that court was to have applied in the first instance. You're aware this is a somewhat controversial issue and has been for some time. Yes, Your Honor, I am aware of that. What would you advise us to do? Your Honor, I would advise you to look at this denobo under the standard of review established under Chevron in terms of... Because you want us to reverse the law. Because you want us to reverse. Yes, we want you to reverse. We'll ask the other party as well. That's right. The statutory construct for the injury analysis is based on market economics. This price, volume and impact all considered in the context of the business cycle and conditions of competition. And the definition of like product is the foundation of that market based analysis. What's the most important argument that these are different products? Do you think? I think the most important argument is that when you look at the facts, there is no question that these products are absolutely distinct in the market. Why don't you say what you just said? The price is so different. It's not just the price is so different. But what isn't the price probably the best indicator of difference in the marketplace? What's the best indicator of the marketplace? I'm helping you out here. Well, the price is certainly one indicator. Everything tells you that these products have absolutely no relationship in the market. Price, distribution, customer base, production, none of them is the same. And so you've reached the fundamental point that what you have is a situation in which imports of consumer tissue. No matter what the price, no matter what the volume are not going to affect performance in the bulk tissue market. And the same is the reverse result, so true. No matter how many bulk tissue imports you have, no matter what the price, it's going to have no impact on the consumer tissue market. Because the relationship of the products in the market, as you can see in the six factor analysis, is so distinct that there is no mechanism within the market for one type of import to impact the other industry. And so that's why I'm saying that in that sort of a situation, and when you look at the case law, you see that type of market-based analysis where when you have that kind of a situation like with auto glass or gift boxes or anything. And they're going to tell us in just a second that 43% of the market is all white tissue paper anyway. The two products that are in the market are packages of consumers. Right, but the product that is sold in the market is either a package of consumer tissue folds that is consumer ready for a retailer to put on display versus a big carton of bulk tissue paper that you can bring in as a store supply item. It doesn't matter what the sheet size or color is in that carton. You cannot use it for, if you are a retailer looking for a consumer-ready product, you cannot buy that bulk tissue box. I don't care what's inside it. But in the same true if you are looking for bulk tissue as a supply item, you are not going to go out and buy 200, 300 or 400 packs of consumer-ready tissue. No matter what color they are. If I understand how far your argument goes in this direction, it's a pose that we're talking about breakfast cereal of some sort, corn flakes for lack of a better example. Would you say that corn flakes, exactly the same flakes, but on the one hand category A, flakes that are sold in very large containers to institutions, schools, or hospitals, or whatever. On the other hand, flakes that are sold in grocery stores in smaller boxes are different products. They're not, it will depend on the facts. It will depend on how you see, not just the packaging. That's one factor. But you would have to look at other factors such as how they're distributed and who's making them, and what the price differential are. And all of those things, because what you are looking for is, is there a relationship such that if you're going to look at the imports of one, can the market impact, that those imports, excuse me, is there a mechanism where that impact can be transmitted from one product to the other? If it can be, which is what the commission found, for example, in bicycles, high-end bikes and low-end bikes, but they said, you know, there's enough of an overlap in the middle for customers, enough common demand, that you have a transmission mechanism. You do not have that transmission mechanism. Why don't there's some evidence though that consumer packages of largest 400 sheets are now being sold and purchased? There is less than 10% of the market is a seasonal club pack. It is a consumer tissue item that, one time a year, I don't believe they're normally 400 count, but yet you can get 100 or 200 count packs. And a seasonal thing, it's still a consumer item. It's once a year. It's a very small segment of the market, but they're still not competing. They're still not competing for the business supply items that the department stores are buying. In cartons. Would you like to give some time to Mr. Iconson? Yes, that would be just perfect. Thank you. Mr. Iconson? I'm going to please the court. The pivotal issue in this case apart from like product is how did the commission handle the special circumstances relating to Cleo and Crystal? Cleo and Crystal during this period of investigation were part of the domestic industry. But in the last full year of the commission's investigation period, they shut down production because of disruptions to the to critical supplies. As a consequence of the shutdown, the business and financial performance indicators showed declines, naturally declines in production, capacity, shipment, sales, profits, employment, and so on. Cleo's and Crystal's indicators were then aggregated with those of other domestic producers to provide a portrait of what the industry looked like. And the commission found that the industry was experiencing injury by reason of dumped inputs. Problem is, Cleo's and Crystal's negative performance indicators were not close by dumped inputs and an examination of the industry without Cleo's and Crystal's numbers do not reveal an industry that has been injured. Now, let's look at the most salient facts right here. Prior to October 2002, Cleo had been a distributor and essentially an importer of subject tissue paper. In October 2002, its business model underwent a sea change. It purchased the largest producer in the United States of tissue that was Crystal Creative Products. For that purchase, it paid $40 million. It also entered into a renewable substantial supply contract with the paper material called jumbo roll. And it developed a plan to use its newly acquired production facility in Kentucky to supply approximately 80% of its customers' requirements. About three months later, something totally unexpected happened. They're a material supplier shutdown, and the paper mill shutdown. Secondly, almost on the heels of that disappointment, they're a rotiver of printer shutdown. Cleo needed these two supplies to service its customers. Obviously needed paper to make a finished tissue. It needed rotiver printing to satisfy one of its most important customers. So, Cleo had to scramble to determine what could it do. The production season was starting for the next holiday season. It had to determine whether it could find a substitute supplier or either. And it ended up concluding that it could not for reasons which we've discussed in our race, much of which are related to very confidential information that's under protective order. So, I'm not at liberty to go into too much detail regarding that. But they reached the decision that they could not continue to produce in the United States. And they made the decision of closing down production. And they had a turn to imports to satisfy the requirements of their customers. Now, the majority commissioners expressed misgivings about the Cleo's management decision. They, based on a staff interview of a salesperson, a base supplier, the commission of the jargon determined that Cleo could acquire product from this supplier. Even though Cleo's management determined that there would be problems with that supplier. Secondly, Cleo made the decision that it needed rotiver printing to satisfy a very important customer. And this is in the records that he was targeting. The commissioners determined that notwithstanding evidence in the record that shows what a river of printing is superior to Flexographic printing. The commissioners said Flexographic printing was suffix. There was available Flexographic supply. This is the kind of decision that could be made by board of directors questioning management's decision. It's a very unusual decision for the commission to make. But it's tasked with the responsibility of determining whether domestic industry is being injured by imports. You know your end-year bottle. Yes, I will speed up. I do want to save some time. Okay. The majority commissioners, so they made the determination that Cleo's management decision was wrong. And still, they were left with the question of why would Cleo have Cleo be injured by imports? It really was injured by this disruption to its supply, even if its management decision was wrong. Which we don't acquiescent. As a matter of fact, we argue that there was not substantial evidence in the record to support the commission's determination. But even if the commission were correct, it doesn't indicate that there was a cause of this injury was due to increased imports. The imports came afterwards. After Cleo determined that it could not produce with the existing supplies, they don't have to import to meet its customer's requirements. The commissioners tried to support their position by saying, well, Cleo was an import or anyway. Crystal had imported in the past. But these are totally irrelevant. Cleo was an import before it decided to become a US producer. And the fact that Crystal import in the past really means nothing. Cleo made the decision, he wanted to be a US producer and it purchased Crystal. So I really believe that the commission got it wrong. They would have been better to advise to follow the outtics case, the outtics decision in which one producer in the United States was skewing the portrait of the industry because it was not injured. The claim wasn't injured by imports, but it was in bankruptcy. And its numbers adversely affected the numbers of the whole industry. So we would hope that this court would agree with the reverse and remand. Thank you, Mr. Racken. Mr. Rees? Good morning, Your Honor. What should be our standard of review? Your Honor, I think the proper standard would be the one that has been most recently articulated. The standard, the standard is that I understand it and I am thinking of the step on steel case. And there the panel described the standard of review, the standard of review that your Honor is considered and the statute. You want us to redo exactly what the Court of International Trade did or not. That's Lightning Sugar. We want to follow it, Lightning Sugar or not. I would really like it if the Court gave great weight to the informed opinion of the Court of International Trade Judge Farzaway. And in fairness, I can talk about informed opinions. To what extent is your, how has that changed when you have a 3-3 commission vote? You know, I think you live by the sword, you die by the sword. I think you have to, an informed opinion of the Court of International Trade under this framework of judicial review. It's always a starting point. I think that leaves room for the commission in a case in which it thinks the judge might have gotten something wrong. It does leave that necessary room to argue. But at the same time, counsel on the other side can do the same. Please proceed with your argument at this point. Well, with that and with this informed opinion and sort of the backdrop that brings us here, I wish to address both of these points that were made, the first about the domestic light product and then the second about this business about a Cleo. In terms of the price difference, isn't that pretty indicative of the difference in product? It's a good question. Price is one factor of six. And in fact, when you have a... But it's a pretty important factor in a marketplace, isn't it? Well, it indicates a market segment and what the consumers acknowledge is the price. Well, it's because, frankly, the light product inquiry really isn't about analyzing what are their market segments. And I guess that's a fundamental distinction, a methodological distinction that I would have with counsel on the other side. Ultimately, the purpose of the light product inquiry is not to get to these ultimate questions of competition and causation, which is way when you get to material injury. Well, we can flip through some of the others. You know, 11 of the 12 producers use exclusively one of the other, consumer or bulk. Packaging is different, which calls into play our folding boxes case. Only three of 20 purchasers were surveyed, thought that they were interchangeable. We're starting to look now at more factors than just price. Right, and I think that's the proper way to approach the issue. It's from the ground up. It's not starting from always doing different markets here. Let's apply that and let that color our judgment on the six factors. It's really a ground up analysis starting from, geez, what physical uses and characteristics. The idea that you would ignore that the underlying product is identical, the tissue papers identical. You were about to say, I think, that it's not a question of whether these products compete with one another. But, and how would you characterize, then what it is we're looking for? It's really ultimately what you try to get right at this stage of the analysis is defining the domestic industry. In fact, at this stage, in a case like this, where you have... Okay, 11 of 12 produce one or the other. End of case, right? You lose right there. Except your honor when you consider the production, their share of production wanted it. It's not simply a matter of, well let's add up, they're 11 of 12. In fact, in this case, it's a very significant portion. Even if you look at the end of the period, and that number actually jumps way up if you look at 0-1 and 0-2 and all that information is in the... ...in the record appendent. So, in terms of the domestic, actually I think the domestic producers, that's a factor that really weighs heavily in favor in the consideration. So, I would actually looking at the same facts, and I appreciate that the difference come to the absolute opposite conclusion. And I guess perhaps that's a lot of what's involved here with these very fact intensive cases that don't necessarily... Well, so we have... there's a six factor test, right? Well, what are those six factors go to? We don't just create six factor tests unless they cohesively fit together to sort of analyze a single issue. And so your ex-position of the single issue is what the domestic industry is? That's what it is. Isn't that, you know, what is this competing against? I mean, isn't it sort of going back to Judge Bryson's characterization? Well, it's a... yes, it's a question of what you're asked ultimately is an injury being injured? And then the industry... And your three products don't compete with each other generally. How is the industry being injured? Well, that's just it. If they're not competing at all, if subject imports aren't competing with a domestic-like product, then you've got a serious causation question. But here, remember, we're looking at the domestic-like product, and we're saying, because we've got product that corresponds to the scope, we're looking within the domestic industry, should there be lines drawn, should there be one or more products? Well, we're actually looking at domestic pieces of the equation. We haven't even gotten to the question. What about the domestic versus the important product? And on that question, I would submit, I completely disagree with the suggestion that there's a lack of substitutability here. There's a whole argument, I think, that if the like product analysis, we don't win on that, and it's... You had to think of this market as strictly segmented. And of course, the commission didn't find that. And I think part of the problem is, when you hear this sort of argument, the issue tends to be, or what you'd expect to hear, is the subject imports are competing in a different segment. Like the big lighter case that we cite was high-end and low-end, maybe the industry isn't high-end and the imports are in the low-end. You've got some questions to grapple with. Here, it's bulb and consumer that Council's talking about. And the domestic industry makes both. And the subject imports are above. We say that domestic industry makes both, though, doesn't that assume the conclusion you're trying to reach, which is that there's a single domestic industry that produces both, as opposed to two different industries? Well, I get you're right. I'm racing ahead into my market segmentation, and the ultimate questions of competition here. Let me bring you back to the simple-minded example, but my cornflakes example would... It's assumed that Kellogg makes cornflakes that are both bulk and also in small packages for retail. And the importers only import bulk. And they're sold in entirely different channels to entirely different people. The prices are wildly different because of the cost of packaging, which is most of retail costs for these kinds of things. Anyway, would you say that it's very likely that they would be found to be the same single product for purposes of this kind of analysis? I guess it would depend on all of the married facts. I know that. But this is a little bit like the Pasta case, I think. But the trouble is, is that all of these facts, as you've conceded, can be looked at from both directions. We got a 3-3 vote at the commission. They looked at them and split 3-3. So what do you advise us to do? And doesn't this really bring the standard of review into question? Well, actually, I would submit that whether it's a 3-3 question... We were just looking at the commission and redoing the commission's work, maybe we can vote 3-3-2. If we're deferring, changes things. I think the court is, I would submit based on the standard of review. He's supposed to be deferring. This is not a sub-suffering. Not if you follow Atlantic sugar. Well, I think the difference is to the commission as fact-finder, as credibility-determiner, as in fact, even weighing the factors themselves. So not simply the subsidiary findings, which are its problems, but weighing of the factors. And Judge Barzley, very correctly, pointed out a like-product case decided, we said, our function's not to re-way, re-calibrate the factors in how we weigh them. That's the commission's function. Thank you, Mr. Rees. Do you want to save any time for Miss Cannon? I do. Yes. I'll leave it to Miss Cannon to address the Leo. Okay. You can do that. I'm... Please, the court. Thank you, Mr. Rees. A couple points. Let me just say on standard of review. I think in this particular... Where's the causation in light of the Leo problem? Where's the causation? The causation is that the imports were sold both in bulk and in consumer. An issue that they'd like you to ignore. They competed directly with the US producers products. There's mirrored examples of law sales. There were reverse internet auctions that were conducted frequently, where US producers lost substantial amounts of business, including its a public record, target random. And a reverse auction is no more than price, your honor. There's nothing to do with quality, fancy colors or anything else. You just simply go on the internet and your price, price, price until the lowest price is submitted and that wins the bid. My clients and other members of the industry were subject to that frequently and they lost business and they lost it on both bulk and consumer tissue. Your position I take it the point you began with is that the whole Cleo crystal argument is predicated on your opposing counsel winning on the separate product issue. Because once the products are viewed as the same, that issue takes on, if not, no way, at least it takes on considerably less force. I take it that's your position. I think that it does take less force, yes, your honor. I think that they're arguing that they've tried to make it also in the guise of even if the commission found a single-life product, they've tried to say that that would also influence the database because they're basically like Cleo and Crystal's data to be removed. Now there is a statutory provision that allows the commission to do that. It's called the related party provision. The commission found that was not applicable here and they have not challenged that here. So there was no satisfaction of the one legal provision that allows them to take that out. What they do instead want you to do is just close your allies to the Cleo imports and basically accept the testimony and really have folks on this. The bulk of their case was on the testimony of their president, Mr. Kelly, who said the reason we did this was because of the our inability to get these supplies. And what did the commission do? This is a classic he said, she said, case. It looked at the other evidence. My clients came in and they said Mr. Kelly told us he was going to China for low-priced airports. They looked at the SEC statement of the parent company of Cleo, which mentioned nothing about an inability to obtain supply. They looked at Cleo's actions after the case was filed. As soon as the case was filed magically, Cleo was able to resume operations. It was able to give jumbo rolls. It was able to get whatever it needed. It resumed production in the United States. Now, if it was not able to get these jumbo rolls, how could it have done that? There's so much evidence out there. There's a lot of confidential. Unfortunately, I can't arrest that on the record here. And frankly, that was where I was going to start. It was just to say that the information of the commission was able to analyze and that the lower court was able to analyze. And in camera session was heavily confidential in this case. And they looked at all of that. We had a very free airing of a lot of confidential information that we can't discuss before this court. They analyzed that in very intense detail, they weighed the evidence and they reached their conclusions. And that's precisely what their role is at the commission of the finder of fact and at the trial court level. Now, at this point, there's a high level of difference both to the commission and I would submit here to the lower court who was doing intensive, factual analysis, unlike a legal issue or something of that type that might come here. But of course, that's not our standard of review. Your standard of review is Atlantic sugar, which is that we do not give any difference to the lower court. Well, no, you're on the right. I would also submit I think in the Sermarica case that the court said that we consider the informed or Kenyan of the court. Sure, we've tried to kind of shine our dicta here. But your ultimate review in the court, the commission's decision is for the I agree. All I'm saying is that I think that the Sermarica principle that you should also consider what the lower court did is not something that should be rushed aside. If the lower court has in the case of like this where there's very factual intensive arguments and they've gone through a very close examination of each of those in a confidential hearing of the type that we had here, I don't think that you should ignore that. I think that's something to be considered as well when you're looking at what the lower court did. But I do agree ultimately if you are reviewing the commission's decision and hear that's critical because what did the commission do? The commission assessed the credibility of witnesses who spoke to them. They could look at them. They could assess their credibility. The commission looked at the physical samples of the product, the bulk tissue and the consumer tissue that they started off saying, oh, bulk is just all this white stuff that's used in stuffing shoes and we brought it all in and said, no, it's colorful, it's beautiful. Here it is. They went on a plant tour. Some members of the commission including Commissioner Himmler who voted in favor of one-led product finding that there was a lot of overlap in these manufacturing facilities. On that point, your honor. Let me just correct something. Earlier there was a question about 11 of 12 producers making only one or the other. That's not true. I would refer you to page 26 of our brief. It wasn't 11 of 12 but hesitant to get into actual numbers because they don't want to get into confidentiality here. But what I would encourage you to do is look at who was making what and how big they were because the critical factor here is not how many in a love pet camp there were but where the bulk of the production was being done and who was making both. And over the period of investigation, you will see that there was a huge overlap and it's on page 26 in brackets in our brief. Companies that were making both bulk and consumer tissue during this period of investigation. It would be like saying, well, three or four companies did it. If one company was making 1,000 pounds in the three companies, reaching only making 100, you might say three or four did it but still most of it was being produced in a common manufacturing facility. And that was what Commissioner Helmut had the opportunity to see at one of our producers at Seaman who does make both and uses the same equipment, the same processes and the same employees to do it. I would also follow up here on your question about the cereal because I think as Mr. Restor did to say this pasta case that the commission had is quite similar to that point. And pasta, pasta sold into a variety of different types of markets as well. But the commission found all pasta to be a single-like product. When you're looking at products like pasta or tissue paper, you always get a range of different types. You get a range of colors, you get a range of prices. Price is not and never has been one of the critical determining factors because the commission has always looked at a class of products and an industry producing that class of products consistent with the Senate report that told them, don't divide up and look at little teeny tiny types of products and include relief to an industry that's deserving of it. Look at a class and look at an industry abroad and that's what they did here. Mr. Iconson, you have a couple of minutes remaining. If it please the court, first, which is a state of charge of prices, the question is whether the court determines that there's a single-like product or a two-like product. The clearest position is the same. There would be injury. There would be no injury regardless. But your position is stronger if you went on the first issue. There's a stronger case with respect to consumer tissue. If you look at the consumer tissue industry and you look at the indicators of everyone in the industry absent. We have a stronger case with respect to the total industry assuming bulk and consumer makeup of single industry. We really do have the same argument. Several of the indicators that we identified in our brief really decline for bulk tissue when the bulk tissue database is correct. So that will again rely heavily on confidential information. Now when you say correct, this is the argument you made at the end of your brief with the bracketed numbers. The correction factor. The reason is. I'm familiar with it. So I just wanted to make sure I was on the right page, literally. Secondly, with regard to the related party provision that this cannot be decided. Again, the all six commissions disagreed with the argument about the related party provision. That didn't stop three commissioners from doing the causality assessment that we were asking them to do. One thing is nothing to do with the other. The related party provision is a special provision which if the commissioners find that applicable are free to exclude a company from the industry. But that really does not tie that if they find that the related party provision is not relevant. The commission commissioners are not tied. They are able to still study causality and assess it correctly. Miss Cannon referred to conversation between our client and her client indicating that Plio was going to be importing from China. The conversation she's referring to is back in 2000. Next, the resumption of business. The indicated that. Miss Cannon indicated that once the petition was filed, we resumed production in the United States and we therefore had no problems. But that's not the record shows. There were significant problems. Plio had to import, don't merchandise and think, do the audit because of the short to see. I see my red light was on. Thank you. Before council leaves Judge Price and has a point. I wanted to ask the parties have alluded on a couple of occasions to the confidentiality problem in this case. And I recognize that representations are made to various parties in exchange for their cooperation and the course of the investigation, etc. But unlike the court of international trade, of course, we don't do confidential and nonconfidential opinions. So this poses a problem for us. Let me ask first if there is any possibility that the council, I have a feeling I know what the answer to this is and I have a feeling that the answer is going to be no. But I'll ask anyway. Does any possibility among council that we can restrict and some generic form the scope of the requests for confidential treatment that are made in the briefs. Often we ask that question and people will say, well, there's really is nothing we care about. I take it from the references to deep confidential materials that there are things that people care about. Is there any way to limit the scope of what we're precluded from talking about? Because frankly, there's so much confidential information here that in any opinion we would write, we would have a minefield to walk through it, frankly. And it would be very easy to trip over something or just not to be able to write an opinion that would make any sense to a reader that's not fully advised to what stands behind these general questions to both council. Yeah, I'm asking everybody. Yes, I would say, you're on, I would not reflexively say no, I can assure you that speaking for myself and I suspect my colleagues, we all have enormous difficulties in writing the public version and then the confidential version of our briefs. We have to constantly review what was kept confidential. Much of this has become stale, but nonetheless we are not pretty to make that decision. Because these were representations made to other parties than the parties that are sitting here today. That's true, including the Commission Commission staff. And it's very easy to, once I'm not careful to go on with the line, and it's an interesting thing. I'm not permitted to, but I may say your honor. I would be pleased to have a conversation with the Commission Council and the Police Council to see whether there's some opportunity to revise the confidential record or to see whether it's possible to make part of the public. So I would really confer to Commission Council, but who would have had much more experience than I, then this. Maybe if your co-council could, if you have anything to add to what Mr. I can say, and I said to say on this point, I think we're amenable to the police there. I think we're going to have a conversation. Well, you're honored to the extent that any of the information that is bracketed is information, for example, that my client has requested their information and they requested confidential treatment. I'd be happy to review that with them to see if there's any information that the passage of time that you have less concern about. Obviously, I can't speak to the information that's been provided by other parties. But I'm happy to go through that exercise. Do we want to? That would be helpful. Yeah, I mean, maybe the Commission Council on Private County Council can make on this. Would you like to comment? You can also assume that our clients, they're owning individual data. That's the third party data that's real. What do you do to the data that I was referring to about the right emphasis to get into before you, which is competent to do to either do the technical order that other companies submitted to the Commission in common and that year under Mr. Johnson's law of the life, how do you think it's not made in that company, Chad? No, I suppose, kind of commission. Unfortunately, you're on a, yeah, that puts us in a, in fact, a statute to early bound to maintain the confidentiality. Well, whatever could be worked out, it might facilitate. It's especially in terms of these. I think that the court will come to your willingness to help us out here and perhaps, and I don't know, we don't want to impose a enormously burdensome process on you. But perhaps if you could meet maybe even now to see if there is some form of general restriction of the identification of confidential materials that would help us reduce the amount of pertinent material that we have to avoid referring to. That would be helpful. If it turns out that there isn't any global way to say, well, all material that is described in part two of the, or whatever, if there's no way to do it in a global way and all you would be doing is saying, well, you know, this particular number comes from 2001, and I guess nobody cares about that, and that number comes from 2002, and therefore that's all right, but anything after that, no. So then that probably isn't worth having you go through lengthy exercise to do, but if you could explore the possibility and report back to us, that would be helpful. Thank you. Thank you. All right. Thank you. The honorable board is adjourned until tomorrow morning. Back to the clock