Slip Op. 09 - 102
UNITED STATES COURT OF INTERNATIONAL TRADE
:
GILDA INDUSTRIES, INC., :
:
Plaintiff, :
:
and :
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NESTLÉ WATERS NORTH AMERICA, INC., :
:
Plaintiff-Intervenor, :
:
v. : Before MUSGRAVE, Senior Judge
: Court No. 07-00474
UNITED STATES, :
:
Defendant. :
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OPINION AND ORDER
[Denying plaintiff’s motion to vacate denial of motion for class certification.]
September 18, 2009
Peter S. Herrick for the plaintiff.
Hogan & Hartson, LLP (Jonathan T. Stoel and Craig A. Lewis) for the plaintiff-intervenor.
Tony West, Assistant Attorney General; Jeanne E. Davidson, Director, Patricia M.
McCarthy, Assistant Director, Civil Division, Commercial Litigation Branch, United States
Department of Justice (David S. Silverbrand); Office of the General Counsel for the United States
Trade Representative (William Busis), of counsel, for The United States of America.
MUSGRAVE, Senior Judge: Plaintiff Gilda Industries, Inc. (“Gilda”) moves
pursuant to USCIT Rule 60(b)(6) to vacate the portion of the Court’s May 14, 2008 order denying
Gilda’s motion for class certification with respect to challenging the retaliatory tariffs imposed
pursuant to the EC–Beef Hormones dispute, familiarity with which is presumed. Cf. Slip Op. 09-58
Court No. 07-00474 Page 2
(June 16, 2009) with Implementation of WTO Recommendations Concerning EC– Measures
Concerning Meat and Meat Products (Hormones) 64 Fed. Reg. 40638 (Office of the U.S. Trade
Representative, July 27, 1999) (notice of imposition of 100 percent ad valorem duties on certain
articles). Gilda’s motion identifies 13 complaints filed after entry of judgment in Gilda’s favor. This
new circumstance, Gilda claims, justifies the relief it requests. The government opposes the motion
on the ground that this is the only new “issue” raised, and that the motion otherwise merely seeks
to re-litigate arguments previously rejected by the court.
USCIT Rule 23(c), which is modeled on the Federal Rules of Civil Procedure, permits
alteration or amendment of an order with respect to class certification “before the decision on the
merits.” This court reached a decision on the merits of Gilda’s case.
A court may not decide the merits first and then certify a class. It is no more
appropriate to certify a class after a determination that seems favorable to the class
than it would be to certify a class for the purpose of binding class members by an
adverse judgment previously rendered without the protections that flow from class
certification.
Preliminary Draft of Proposed Amendments to the Federal Rules of Bankruptcy, Civil and Criminal
Procedure and Rules of Evidence, 201 F.R.D. 560, 611 (Committee on Rules of Practice and
Procedure of the Judicial Conference of the United States, Aug. 1, 2001). See Advisory Committee
Note to 2003 amendments to Rule 23(c) of the Federal Rules of Civil Procedure (“FRCP”). Cf.
FRCP Rule 23(c); 1966 Advisory Committee Note to amendments to Rule 23(c) (rejecting the
practice of “one-way intervention”). Gilda’s motion must therefore be, and it hereby is, denied.
SO ORDERED.
Dated: September 18, 2009 /s/ R. Kenton Musgrave
New York, New York R. KENTON MUSGRAVE, Senior Judge