Ah garlic, the “stinking rose,” beloved for centuries by peasants and kings (Fun fact: well-preserved cloves of garlic were found in King Tut’s tomb). And you can buy it today at practically any supermarket for about 50 cents a head.
But apparently ‘Big Garlic’ is also a cutthroat business, full of international intrigue.
Just how conniving is it? Netflix made an hour-long documentary about (I kid you not) a lawsuit involving antidumping duties on garlic from China and allegations of racketeering, extortion and fraud.
Of all the legal disputes you might expect to see laid bare on Netflix, I wouldn’t have tagged one that centers on alleged manipulation of the Commerce Department’s administrative review process, but doggone if the filmmakers didn’t pull it off. The Tariff Act of 1930 (19 U.S.C. § 1673a(b)(1); 19 C.F.R. § 351.213(b)(1) has never been so riveting.
And now, there’s a new twist in the case. Last week, the U.S. Court of Appeals for the Ninth Circuit revived the racketeering suit, siding with a team from Winston & Strawn that includes firm co-chair Jeffrey Kessler, white collar practice co-chair Seth Farber, partners George Mastoris, A. Paul Victor, John Schreiber and associate Jeffrey Wilkerson.
Winston’s client is Chinese garlic grower Zhengzhou Harmoni Spice Co. and its California-based parent company, Harmoni International Spice, Inc., which serves as its exclusive importer.
Harmoni has an enviable market position. Since 1994, the Department of Commerce has imposed hefty antidumping duties on fresh garlic imported from China, concluding that it’s sold for less than a fair market price and injures American farmers.
But Harmoni, which came on the scene in 2001 as a “new shipper,” has alone been exempt from the duties—a huge advantage.
Little wonder that in recent years, Harmoni has come to dominate the market for imported garlic. “A Chinese garlic juggernaut,” is how the Netflix documentary describes them. “They’re big and they fight mean.”
Maybe so. But the other side isn’t exactly a pushover either.
In a lawsuit filed in 2016 in U.S. District Court for the Central District of California, Harmoni and its lawyers from Winston cast the company as the victim of an elaborate scheme.
“Rather than comply with U.S. antidumping laws in order to improve their competitive position, [Harmoni’s competitors] participated in an enterprise which embarked upon a series of unlawful and illegal acts designed to defraud” the Department of Commerce, U.S. Customs and Border Protection, and the United States Court of International Trade, they said.
The Ninth Circuit found that some of Harmoni’s allegations were rightfully tossed by U.S. District Judge Beverly O’Connell (who died in October of 2017 at age 52 of an apparent brain aneurysm). But the appellate panel reversed and remanded the portion of O’Connell’s decision dismissing RICO claims involving a “sham” administrative review request with the Department of Commerce.
[subhead] Harmoni in the Hot Seat
As far as Harmoni is concerned, it’s remained exempt from antidumping duties because it obeys U.S. trade laws and does everything right.
But apparently other Chinese garlic producers don’t see it that way.
Lanza said Harmoni sells much of its imported garlic to the biggest U.S. player, Christopher Ranch in Gilroy, California, which has “a vested interest in keeping it cheap.”
The key is maintaining Harmoni’s duty-free status–and that’s where the Commerce Department comes in.
The agency conducts periodic administrative reviews to see if a given shipper’s duties are appropriate—but such a review only happens if a U.S. grower requests it. And (crazy coincidence) no one ever followed through on a request for Harmoni to be examined.
According to Harmoni, the Chinese Garlic Association, armed with $1.6 million “war chest,” recruited two small garlic growers in New Mexico to serve as “secret agents.” The growers allegedly petitioned the Commerce Department to review Harmoni, “not to protect the domestic garlic industry, but rather to benefit producers and importers of Chinese garlic who are members of the enterprise.”
According to Harmoni’s complaint, the New Mexico growers, Stanley Crawford and Avrum Katz, are “hobby farmers with no financial stake in the outcome of the U.S. antidumping administrative review process (other than economic benefits received from Chinese Garlic Association companies in exchange for filing the review request), to file baseless sham review requests containing false and misleading allegations against plaintiffs.”
The Winston team continued, “These filings are part of an ongoing effort to force plaintiffs to incur the significant expense and burdens associated with an administrative review, strip plaintiffs of their lawful competitive advantage due to their zero dumping duty rate, and increase the Chinese garlic market share of various enterprise members.”
Initially, it seemed to work. According to Lanza, the Commerce Department in a preliminary finding determined Harmoni should in fact be subject to duties.
And O’Connell in November of 2016 dismissed Harmoni’s suit–which named the New Mexico growers, their lawyer, competing Chinese garlic growers and others–ruling that Harmoni had not adequately pleaded the RICO element of proximate causation. That is, the connection between Harmoni’s alleged harm of lost sales and profits and the supposedly sham Department of Commerce review was too attenuated.
But then, the defendants’ united front cracked open. One of the New Mexico growers, Avrum Katz, told the Netflix crew he had a change of heart after he got a phone call from an (unnamed) Harmoni representative.
He and his wife told the documentary makers that they expected they would be well-paid for their role in the administrative proceedings, but only got $15,000, while the other New Mexico farmer got $50,000 and new farm equipment.
They seemed especially fumed about the role of Ted Hume, the New Mexico-based trade lawyer who recruited them, and whose clients allegedly include other garlic growers in China. (Hume referred a request for comment to Lanza.)
Kristen Katz, Avrum’s wife, told the Netflix crew they belatedly realized that “We had done something wrong…we were not trying to level the playing field for domestic garlic growers. We were trying to level the playing field for Ted’s clients.”
Avrum added, “We weren’t trying to level the playing field. We were trying to level their competitors.”
So they wrote a blistering, tell-all letter to the Department of Commerce where they substantiated many of Harmoni’s allegations.
The Department of Commerce subsequently determined that the administrative review request from the New Mexico farmers was invalid and rescinded the whole proceeding.
“[B]ased on the material misrepresentations and inconsistent statements made by the members of the [New Mexico Garlic Growers Coalition], the department found that substantial record evidence undermined the veracity of all the NMGGC’s submissions to the department,” Commerce officials wrote.
Noting that the New Mexico growers received money, travel and garlic processing equipment in exchange for their participation in the review, Commerce officials found that the association “lacked credibility and that none of its submissions could be used in order to make a determination regarding the NMGGC’s status as a domestic interested party.”
And they pointed a finger at their lawyer. “Mr. Hume and Chinese garlic exporters, which were his clients or business partners (or both), have over a period of years, formulated a number of strategies with the ultimate goal that the department review Harmoni.”
Lanza said his clients have appealed the Commerce decision to the U.S. Court of Appeals for the Federal Circuit.
What might have looked like far-fetched allegations of a conspiracy to Judge O’Connell in 2016 were much more compelling when the Ninth Circuit got the case.
Writing for the unanimous panel, Judge Paul Watford held that Harmoni “adequately alleged proximate cause with respect to damages for expenses incurred in responding to the Department of Commerce’s administrative review.”
The allegations, Watford continued, “establish a direct causal link between the defendants’ allegedly wrongful conduct (filing sham requests for an administrative review) and the injury Harmoni asserts (being forced to incur expenses responding to the review triggered by the sham filings).”
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