New ITC Commissioners Contemplate Expansion of Statutory Authority

Earlier this month, the sixth and final Commissioner was sworn in at the U.S. International Trade Commission. With five of the six Commissioners new to the ITC, practitioners are monitoring the dockets for clues as to the new body’s substantive and procedural views on Section 337 disputes. One significant clue revealed itself this week, when the Commission issued nearly two dozen questions, including subparts, directed to the Commission’s authority to investigate disputes notwithstanding a forum selection clause wherein the parties agreed to resolve their claims elsewhere. The questions signal that the Commission may view its adjudicatory authority as overriding private agreements between litigants. 

The underlying investigation involves Respondent BMW’s in-vehicle infotainment systems accused of misappropriating trade secrets of Complainant Zync Inc.¹ Shortly after institution, the Administrative Law Judge granted BMW’s motion to terminate the investigation based on a forum selection clause in pre-suit agreements between the private parties. Notably, the Commission had earlier denied BMW’s request to adjudicate the forum selection clause as part of the 100-day program. But that did not deter BMW from requesting early termination once the investigation began. 

In opposition, Zync argued that BMW cannot invoke a private agreement to deprive the ITC of its authority to investigate unfair trade practices, authority the ITC possesses even if Zync had not filed its complaint.² But the ALJ disagreed, finding that the issue was not whether the ITC was required to investigate an unfair act of importation, but instead whether the ITC had the discretionary authority to terminate an investigation based on a forum selection clause.³ The ALJ agreed with BMW that the forum selection clause permitted the ITC to do just that.⁴ 

But on September 23, following a decision to review the ALJ’s determination, the Commission issued voluminous questions calling his findings into doubt. For example, the Commission asked about the “effect termination would have on the ITC’s ability to perform its statutory mandate of preventing the importation and sale of articles that benefit from unfair acts.”⁵ The Commission also asked the parties to provide information about whether Congress intended forum selection clauses to apply at the ITC and whether “termination would privilege the interests of the private parties over the broader public interest that Section 337 is meant to serve.”⁶ The Commission even asked whether “federal courts [have] held such agreements to be binding on federal agencies . . . including the Commission” and whether any other court orders exist that are limiting the parties’ ability to answer the instant questions posed by the Commission or otherwise litigate the termination issue.⁷ 

These questions suggest that the new Commissioners believe they can adjudicate Section 337 disputes notwithstanding forum selection clauses to the contrary. Should that be their ultimate decision, the consequences could be severe for private parties who have already agreed to take their disputes elsewhere, as it would invite potential complainants to renege on such agreements.

With final submissions from the parties due on October 27, but a November 1, 2027 target date, resolution of the question at hand may not occur for quite some time. In the interim, potential targets at the ITC may consider whether and how they can structure or restructure private agreements to avoid the ITC. Assuming they ultimately cannot do so, the ITC’s decision would have the potential to greatly influence the structure and terms of private agreements moving forward.

1. _{^See Certain In-Vehicle Infotainment Systems, Components Thereof, and Products Containing the Same, Inv. No. 337-TA-1493.}
2. _{^See 19 U.S.C. § 1337(b)(1) (“The Commission shall investigate any alleged violation of this section on complaint under oath or upon its initiative.”) (emphasis added).}
3. _{^See Order No. 16: Initial Determination at 5 (July 28, 2026).}
4. _{^ BMW had also successfully obtained a temporary restraining order from the U.S. District Court for the Northern District of California, requiring that Zync request a stay of the ITC proceedings.}
5. _{^See Notice at 2.}
6. _{^ Id. at 3.}
7. _{^Id. at 3-4.}

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