Slip Op. 01-127
UNITED STATES COURT OF INTERNATIONAL TRADE
:
FORMER EMPLOYEES OF :
BARRY CALLEBAUT :
:
Plaintiff, :
: Before: WALLACH, Judge
v. : Court No.: 00-05-00202
:
HERMAN, UNITED STATES :
SECRETARY OF LABOR, : PUBLIC VERSION
:
Defendant. :
:
[Remand Determination remanded for further investigation.] Decided: November 2, 2001
Coudert Brothers (Steven H. Becker, Scott D. Schauf, and Paul A. Horowitz), New York, NY,
for Plaintiffs.
Stuart E. Schiffer, Acting Assistant Attorney General; David M. Cohen, Director; Velta A.
Melnbrencis, Assistant Director, U.S. Department of Justice, Civil Division, Commercial
Litigation Branch, (Franklin E. White, Jr.), Washington, D.C., for Defendant.
OPINION
I
INTRODUCTION
This case is before the court following the United States Department of Labor’s (“Labor”
or the “Department”) voluntary remand of January 31, 2001. Plaintiffs, Former Employees of
Barry Callebaut (“Former Employees”) filed petitions for transitional adjustment assistance
(“TAA”) and NAFTA transitional adjustment assistance (“NAFTA TAA”). Following the
voluntary remand, Labor denied Plaintiffs’ eligibility for both programs. Barry Callebaut USA,
Incorporated, Van Leer Division, Jersey City, New Jersey; Notice of Negative Determination on
Remand (“Remand Determination”), 66 Fed. Reg. 18116 (Dep’t Labor, Apr. 5, 2001). For the
reasons set forth below, the Remand Determination is remanded to Labor for further
investigation.
II
BACKGROUND
Barry Callebaut Van Leer Division (the “plant”) was a manufacturing plant in Jersey City,
New Jersey, which produced finished chocolate products and related ingredients. See Plaintiffs’
Comments on Defendant’s Negative Determination on Remand (“Plaintiffs’ Comments”) at 4
(listing the products as including, but not limited to, cocoa butter, chocolate liquor, sugar-free
chocolate and chocolate snaps). The plant began laying off employees in late Spring 1999 and
closed in April 2000. See id. at 4-5.
On July 9, 1999, employees who were slated for lay off applied for TAA, claiming that
their previous employer Van Leer was bought by Barry Callebaut (the “company”), and that
Barry Callebaut was shifting production to Canada, resulting in their separations. Confidential
Administrative Record at 5; see also Plaintiffs’ Comments at 5; Investigations Regarding
Certifications of Eligibility to Apply for Worker Adjustment Assistance, 64 Fed. Reg. 65728
(Dep’t Labor, Nov. 23, 1999).
2
On August 12, 1999, after having been laid off, the employees filed a petition for NAFTA
TAA. They claimed that the lay offs resulted from shifts in production to and imports from
Canada. Administrative Record - Business Confidential Information Supplemental (“Adm. Rec.
I”) at 1; see also Plaintiffs’ Comments at 5; Investigations Regarding Certifications of Eligibility
to Apply For NAFTA Transitional Adjustment Assistance, 64 Fed. Reg. 55757 (Dep’t Labor,
Oct. 14, 1999).
Labor initiated an investigation in which it sent a NAFTA TAA Confidential Data
Request Questionnaire (“NAFTA TAA Questionnaire”) to Barry Callebaut. See Plaintiffs’
Comments at 5. It obtained questionnaire responses dated October 15, 1999, from the company’s
Human Resources Manager. Adm Rec. I at 8-14; see Plaintiffs’ Comments at 5; Defendant’s
Memorandum in Opposition to Plaintiffs’ Comments on Defendant’s Negative Determination on
Remand (“Defendant’s Response”) at 3. In its response, the company stated that there was no
recent decline in production or increase in imports, and that no shift of production to Canada was
planned. Adm Rec. I at 9; see Plaintiffs’ Comments at 6; Defendant’s Response at 3. Two
weeks later, on October 25, 1999, in response to Labor’s inquiry about a decline in production at
the plant, the company said that production was being shifted to other domestic plants. Adm
Rec. I at 16-17; see Plaintiffs’ Comments at 6; Defendant’s Response at 4.
Labor relied upon the company’s unverified questionnaire responses in denying the
petitions for TAA and NAFTA TAA. Adm Rec. I at 18-22; see Plaintiffs’ Comments at 6-7;
Defendant’s Response at 4; see also Notice of Determinations Regarding Eligibility to Apply for
3
Worker Adjustment Assistance and NAFTA Transitional Adjustment Assistance, 64 Fed. Reg.
72690, 72691 (Dep’t Labor, Dec. 28, 1999) (stating that the TAA claim was denied for failure to
meet the criterion of an “increase[] of imports of articles like or directly competitive with articles
produced by the firm or appropriate subdivision hav[ing] contributed importantly to the
separations”.); Notice of Determinations Regarding Eligibility To Apply for Worker Adjustment
Assistance and NAFTA Transitional Adjustment Assistance, 65 Fed. Reg. 5690, 5691 (Dept’
Labor, Feb. 4, 2000) (stating that the NAFTA TAA claim was denied because “[i]mports from
Canada or Mexico did not contribute importantly to workers’ separations. There was no shift in
production from the subject firm to Canada or Mexico during the relevant period.”).
On January 13, 2000, one of the Former Employees, Robert Bloom, requested that Labor
reconsider its negative determination. He claimed that 30% or more of production from the plant
had been shifted or was in the process of being shifted to Canada, and that equipment was being
dismantled and sent to Canada. Adm Rec. I at 40-41; Plaintiffs’ Comments at 7. Labor granted
his request. Barry Callebaut, USA, Incorporated Van Leer Division Jersey City, New Jersey;
Notice of Affirmative Determination Regarding Application for Reconsideration, 65 Fed. Reg.
5690 (Dep’t Labor, Feb. 4, 2000).
The Department then initiated a second investigation. It sent a letter on January 24, 2000,
to the Human Resources Manager requesting additional information. Adm Rec. I at 46-47. The
letter laid out Plaintiffs’ claims as made in the request for reconsideration. Labor’s first question
was, “We ask that you respond to the petitioners claims.” Id. at 46. In its February 16, 2000,
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submission, the company did not respond to this question. Id. at 51. The remaining questions
related to production shifts to and imports from Canada and other foreign countries. Id. at 46-47.
Labor stated that “[t]he company has responded that it expects to shift some production from
Jersey City to Canada in the near future, but to date, no shift has occurred.” Barry Callebaut
USA, Incorporated, Van Leer Division, Jersey City, New Jersey; Notice of Negative
Determination on Reconsideration (“Reconsideration Determination”), 65 Fed. Reg. 13991
(Dep’t Labor, Mar. 15, 2000). The company stated that it “did not import any chocolate
products or ingredients from Canada” and that “except for cocoa powder, the company did not
import any chocolate product or ingredients from any other foreign country.” Defendant’s
Response at 7. This information, like the information from the first investigation, was sent by
the Human Resources Manager. See id. Without verifying his response, Labor affirmed its
negative determination. See id.; Reconsideration Determination, 65 Fed. Reg. at 13991.
Mr. Bloom then filed this suit on behalf of the Former Employees. After Defendant
answered, Plaintiffs filed a Motion for Judgment on the Agency Record. In response, Defendant
filed a Motion for a Voluntary Remand “for the purpose of allowing the agency to conduct an
additional investigation and to make a redetermination as to whether petitioners qualify for
certification for” TAA and/or NAFTA TAA. Defendant’s Motion for Voluntary Remand at 2.
Labor then initiated a third investigation. On February 12, 2001, it requested detailed
information from the Accounting Manager of Barry Callebaut, USA, Inc. regarding the
organizational structure of the company; the products produced at the Jersey City plant; where
5
production and machinery were shifted once the plant closed; sales, production and imports for
each product produced; and the plant’s major customers.1 Adm Rec. II at 3. Labor also asked
the company to “provide comments or documentation that would contradict the Department’s
negative determination” as to worker eligibility. Id. at 4. Labor’s request was forwarded to Ms.
Isabelle Eysseric, who appears to be the company Spokesperson,2 and she responded on February
26, 2001.3 According to a chart she submitted, only [a very small percentage] of the Jersey City
plant’s production was transferred to the plant at St. Hyacinthe, Quebec, Canada. Id. at 41. The
submission indicates that all other production was transferred to other domestic plants. Id.
Based upon the unverified information provided by Ms. Eysseric, Labor found that “[a]
negligible amount of” production of products formerly produced at the plant “was shifted to
Canada.” Remand Determination. The three ingredient products produced at the Jersey City
plant were chocolate liquor, cocoa butter and cocoa cake. Supplemental Confidential
Administrative Record at 42. Labor found that imports of chocolate liquor were negligible,
1
In its letter requesting additional information, Labor stated that it asked for the remand
“so that [it] could satisfy the inadequacies of the [earlier] investigation. Adm Rec. II at 2.
2
Ms. Eysseric’s title is not specified in the record. However, in the table of contents to
the remand record provided by Defendant, Ms. Eysseric is referred to as Spokesperson.
3
Labor also contacted Mr. Woody Forns, the former Chief Financial Officer for Van Leer
and the company contact person listed on the original petition. See Remand Determination. By
the time Labor contacted him in this third investigation, Mr. Forns had been separated from the
company for “about two years”. Adm Rec. II at 51. The memorandum on the record
memorializing the certifying officer’s conversation with him states that Mr. Forns indicated that
“only a small percentage” of chocolate and ingredient production from the Jersey City plant was
transferred to Canada, but that the cocoa press and the production for which it is used “probably
went to Canada”. Id. Labor characterized the information provided by Mr. Forns as not new.
Remand Determination.
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purchases of chocolate cake increased but domestic production also increased significantly, and
imports of cocoa butter accounted for a “negligible portion of the company’s domestic needs.”
Remand Determination. The finished products made at the plant were chocolate, sugar-free
chocolate and chocolate snaps, and the Department found that the “vast majority” of production
of these items “was shifted to other Barry Callebaut domestic locations.” Id. Based on these
findings, Labor affirmed its previous determinations and denied the petitions for TAA and
NAFTA TAA. Id.
The Motion presently before the court followed. Plaintiffs challenge the denials of their
petitions, claiming that Labor conducted an inadequate investigation. Plaintiffs’ Comments at 1-
2. They argue that Labor failed to “perform a reasoned analysis” of the record evidence, failed to
inquire into contradictory information in the record, and “reached material conclusions for which
there is no supporting evidence in the administrative record”. Id.
III
JURISDICTION AND STANDARD OF REVIEW
The court has jurisdiction under 28 U.S.C. § 1581(d) (1994). This case is governed by
19 U.S.C. § 2272 (1994) and 19 U.S.C. § 2395 (1994). 19 U.S.C. § 2272 provides for separated
workers to petition for TAA. 19 U.S.C. § 2272 (1994). 19 U.S.C. § 2395 provides for the
petitioning by displaced workers for NAFTA TAA and judicial review of Labor’s determination
on such petitions. 19 U.S.C. § 2395 (1994). That section also provides that the court, “for good
cause shown . . . may remand the case to [Labor] to take further evidence.” Id. “Good cause
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exists if the Secretary's chosen methodology is so marred that his finding is arbitrary or of such a
nature that it could not be based on substantial evidence.” Former Employees of Linden Apparel
Corp. v. United States, 13 CIT 467, 469, 715 F. Supp 378, 381 (CIT 1989) (citations and internal
punctuation omitted).
“A negative determination by the Secretary of Labor denying certification of eligibility
for [TAA] will be upheld if it is supported by substantial evidence on the record and is otherwise
in accordance with law.” Former Employees of Swiss Ind. Abrasives v. United States, 17 CIT
945, 947, 830 F. Supp 637, 639 (1993); see also 19 U.S.C. § 2395(b) (1994). Substantial
evidence is something more than a “mere scintilla,” and must be enough evidence to reasonably
support a conclusion. Primary Steel, Inc. v. United States, 17 CIT 1080, 1085, 834 F. Supp.
1374, 1380 (1993); Ceramica Regiomontana, S.A. v. United States, 10 CIT 399, 405, 636 F.
Supp. 961, 966 (1986), aff'd, 810 F.2d 1137 (Fed. Cir. 1987).
IV
ANALYSIS
A
Labor Erred in Accepting Barry Callebaut’s Unverified Questionnaire Response
Because it Failed to Analyze Contradictory Evidence That Suggested
the Company’s Response Was Less Than Truthful.
Plaintiffs claim that although Labor conducted three investigations on this matter, “it still
has failed to produce substantial evidence that would support denial of Plaintiffs’ claims for
certification.” Plaintiffs’ Comments at 13. “Labor’s investigation [on remand] did not meet the
8
threshold requirement of reasonable inquiry”, Plaintiffs claim, because “Labor blindly accepted,
without any verification or follow-up, the scant information provided by [Barry Callebaut].” Id.
Defendant claims that “[i]t is entirely appropriate for the Secretary of Labor to accept –
without verification – statements received from company officials when nothing in the record
suggests that the information provided is inaccurate or unreliable.” Defendant’s Response at 12.
In support of its contention, Defendant cites Local 167, Int’l Molder and Allied Workers’ Union,
AFL-CIO v. Marshall, 643 F.2d 26 (1st Cir. 1981). In Local 167, the court upheld Labor’s
negative TAA determination which was based largely on an unverified statement from the
subject company. The plaintiff argued that accepting the statement was an abuse of discretion.
In upholding Labor’s determination, the court stated that
We cannot say, however, that the Secretary has shirked his duty to investigate by
accepting as credible an authoritative company response to an official query given
under a guarantee of confidentiality. The duty of verification proposed by
petitioner, which is applicable to customer surveys generally, would greatly
increase the investigative burden of the Department of Labor. We note that there
are not objective circumstances in this case suggesting that the company gave a
less than truthful response, nor does it appear that the company would have
financially benefitted from the denial of certification. It was for the Secretary to
decide, under these circumstances, whether to credit the Crane Company
statement without further checking.
Local 167, 643 F.2d at 31-32 (emphasis added).
Local 167 does not support the Government’s position that it did not need to verify the
information provided by Barry Callebaut. Information that Labor should have considered
suggested that the company’s figures were less than truthful.
9
In responding to Labor’s questionnaire on February 26, 2001, Barry Callebaut submitted a
chart titled “Ex-Van Leer Items – Allocation of Production Per Site Since the Close of Van Leer
Factory”. The chart, which covers the period of April 17, 2000 to January 27, 2001, lists four
factories as producing 100% of the former Van Leer volume. The factories [producing a
proportion of chocolate and ingredients are:]
St. Hyacinthe, Quebec, Canada – [a proportion]%
St. Albans, Vermont, USA – [a proportion]%
Pennsauken, New Jersey, USA – [a proportion]%
Piscataway, New Jersey, USA – [a proportion]%
Adm Rec. II at 41. Based on this information provided by the company, in the Remand
Determination, Labor found that production of only a “negligible amount” of the articles
produced at the Jersey City plant was moved to Canada. Remand Determination.
However, the company’s 1999 Annual Report indicates that far more than [a very small
percentage] of Van Leer production was moved from Jersey City to Canada. In the Report, Barry
Callebaut stated in its Letter From the Management that it had implemented changes to increase
efficiency. “An example of efficiency improvements within our Group is the transfer of the
higher cost Van Leer U.S. production to more cost-efficient sites in Pennsauken (USA) and St.
Hyacinthe (Canada). As a result, the Van Leer factory has been closed.” Barry Callebaut, Inc.,
1999 Annual Report at 9 (“Annual Report”).
The chart provided by the company and its Annual Report appear to be at odds. If the
Pennsauken plant took over [the bulk] of the Jersey City plant’s production, and St. Albans took
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over [an additional amount greater than St. Hyacinthe], then the question arises, why does the
Annual Report list St. Hyacinthe, with only [a very small percentage] of the production, and not
St. Albans? The statement in the Annual Report appears intended to show where the production
has gone once the Jersey City plant closed. The fact that the company listed St. Hyacinthe
implies that it and the Pennsauken plant took over the major portion of production. If indeed the
St. Hyacinthe plant only took over [a very small percentage] of production, and the St. Albans
plant took over [a greater percentage than St. Hyacinthe], it would seem only logical that the
Annual Report would list St. Albans and not St. Hyacinthe. Alternatively, the Annual Report
would list all four plants. In any case, the apparent discrepancy between the Annual Report and
the submission to Labor suggests that the company was less than truthful in its submission.4
4
If the company was truthful in its submission to the Department, then it appears that it
may have been untruthful in its Annual Report. If upon remand, Labor finds that [the production
figure specified for St. Hyacinthe] is the accurate figure, Labor is directed to refer this matter to
the Securities and Exchange Commission for investigation into whether a misrepresentation was
made to shareholders in the Annual Report.
The Securities and Exchange Commission requires publicly traded companies to file
annual reports. 17 C.F.R. § 240.13a-1 (2001). Making a material misrepresentation of fact or
materially misleading statement in an annual report to shareholders results in issuer liability. 17
C.F.R. § 240.3b-6(d) (2001) (titled “Liability for Certain Statements By Issuers” and stating that
a fraudulent statement is one “which is an untrue statement of a material fact, a statement false or
misleading with respect to any material fact, an omission to state a material fact necessary to
make a statement not misleading . . . .”); 17 C.F.R. § 240.3b-6(b) (2001) (applying subsection (d)
to annual reports to shareholders); 17 C.F.R. § 240.14a-3 (2001) (detailing requirements of
annual report); 17 C.F.R. § 240.10b-5 (2001) (it is unlawful to “make any untrue statement of
material fact . . . in connection with the purchase or sale of any security.”); 17 C.F.R. § 240.12b-
20 (2001) (requiring a company to include in a statement or report “further material information,
if any, as may be necessary to make the required statements, in the light of the circumstances
under which they are made not misleading.”); see also Securities & Exchange Commission v.
General Refractories Co., 400 F. Supp. 1248, 1257 (D.D.C., 1975) (“Investors are entitled to
disclosure of material facts. . . . The Commission has made a prima facie showing that annual
reports and proxy materials filed with the Commission and disseminated to . . . shareholders were
false and misleading and did not contain information required to be contained therein.”).
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The Department having failed to analyze the Annual Report and investigate the apparent
discrepancies between it and Barry Callebaut’s submission to Labor, the court finds good cause
to remand this determination to Labor. The Department’s acceptance of the unverified
information provided by the company, despite the contradictory evidence presented, renders the
Remand Determination unsupported by substantial evidence. This matter is remanded to Labor
for further investigation into the amount of production which was moved from Jersey City, New
Jersey, USA to St. Hyacinthe, Quebec, Canada. Following the factual investigation, Labor is to
reevaluate whether sufficient production was relocated to Canada to satisfy the requirements of
TAA and NAFTA TAA.
B
The De Minimis Rule Applies to 19 U.S.C. § 2331 Because to Exempt the NAFTA TAA
Program from the De Minimis Rule Would Thwart the Purpose of the Program.
Plaintiffs claim that even if Labor is correct and only [a very small percentage] of
production was shifted to Canada, the workers should have been certified eligible for NAFTA
TAA. Plaintiffs’ Comments at 20. 19 U.S.C. § 2331, which sets forth the eligibility
requirements for NAFTA TAA, states in relevant part:
(a) Group eligibility requirements
(1) Criteria
A group of workers . . . shall be certified as eligible to apply for
adjustment assistance under this subpart . . . if the Secretary determines
that a significant number or proportion of the workers in such workers’
firm . . . have become totally or partially separated, or are threatened to
become totally or partially separated, and either–
(A) that–
(i) the sales or production, or both, of such firm or
subdivision have decreased absolutely,
12
(ii) imports from Mexico or Canada of articles like or
directly competitive with articles produced by such firm or
subdivision have increased, and
(iii) the increase in imports under clause (ii) contributed
importantly to such workers' separation or threat of
separation and to the decline in the sales or production of
such firm or subdivision; or
(B) that there has been a shift in production by such workers' firm
or subdivision to Mexico or Canada of articles like or directly
competitive with articles which are produced by the firm or
subdivision.
19 U.S.C. § 2331 (1994).
Plaintiffs argue that “[t]he statute, which is clear and unambiguous, directs Labor,
without qualification, to certify the workers if it determines that there has been a shift in
production to Canada of articles like or directly competitive with articles that are produced by the
workers’ firm in the United States.” Plaintiffs’ Comments at 20. In other words, “[n]o minimum
level [of shifted production] is required.” Id.
Plaintiffs’ argument “ignores the fact that the venerable maxim de minimis non curat lex
(‘the law cares not for trifles’) is part of the established background of legal principles against
which all enactments are adopted, and which all enactments (absent contrary indication) are
deemed to accept.” Wisconsin Department of Revenue v. William Wrigley, Jr., Co., 505 U.S.
214, 231 (1992). “Application of de minimis is particularly important in cases . . . where stark,
all-or-nothing operation of the statutory language would have results contrary to its underlying
purposes.” Alcan Aluminum Corporation v. United States, 165 F.3d 898, 903 (Fed. Cir. 1999).
13
The legislative history behind NAFTA TAA shows that the program is intended to benefit
displaced workers whose separations were caused by shifts in production to or imports from
Canada or Mexico. See H.R. Rep. No. 103-361(I) at 4 (1993), reprinted in 1993 U.S.C.C.A.N.
2552, 2554 (“Title V establishes a NAFTA transitional adjustment assistance program of
comprehensive benefits, including training and income support, for workers who may be laid off
due to increased U.S. imports from Mexico or Canada or a shift of production to Mexico or
Canada, and authorizes State self-employment assistance programs.”) (emphasis added). The
program is not intended to benefit workers whose separations were not caused by shifts in
production to or imports from Canada or Mexico, despite the fact that some production may have
been shifted or imports may have increased to some degree.5
If courts do not apply the de minimis rule to the NAFTA TAA program, Labor will be
required to certify workers eligible for NAFTA TAA in situations where no causal link can be
made between the production shift and the separations. As this would clearly circumvent the
purpose of NAFTA TAA, Plaintiffs’ argument fails.
5
The court notes that Congress requires a “significant number or proportion of the
workers” be displaced in order for them to be eligible for NAFTA TAA. 19 U.S.C. § 233a (a)(1);
H.R. Rep. No. 103-361(I) at 88 (1993), reprinted in U.S.C.C.A.N. 2552, 2638. On its face this
requirement indicates that Congress requires something more than one worker being displaced.
As to this aspect of the statute, Congress has adopted, or at the very least has implicitly not
rejected, the de minimis principle. This requirement supports the conclusion that Congress also
adopts, or does not reject, the de minimis principle as to the other condition for NAFTA TAA,
that production be shifted to Canada or Mexico.
14
C
Should Labor Not Perform a Competent and Verified Investigation upon Remand, the
Court Will Not Remand for a Fifth Investigation.
Plaintiffs argue that “Labor has now had three opportunities to perform a proper
investigation – and have failed each time.” Plaintiffs’ Comments at 13-14. Therefore, they argue
that “further remand would . . . be futile” and that “the Court should order Labor to certify the
plaintiffs as eligible for trade adjustment assistance.” Id. at 14.
Plaintiffs rely on Former Employees of Hawkins Oil and Gas, Inc. v. United States
Secretary of Labor, 17 CIT 126, 814 F. Supp. 1111 (1993). Plaintiffs’ Comments at 14, 20. In
that case, Labor had conducted three investigations on the petitions for trade adjustment
assistance. The court found that the investigations were inadequate. In ordering the Secretary to
certify the workers, the court stated that “Labor has repeatedly ignored the Court’s instructions to
conduct a more thorough investigation. After three tries the record continues to be scant and
Labor has once again failed to substantiate its conclusions. Thus, ordering another remand in this
case would be futile.” Hawkins Oil, 17 CIT at 130, 814 F. Supp. at 1115.
Plaintiffs’ argument has merit. In its three opportunities, Labor has failed to conduct
adequate investigations in this case. However, the court finds that remand with instructions from
the court is appropriate. Labor is instructed to conduct a competent and thorough investigation,
and given the evidence that Barry Callebaut has been less than truthful in its responses to Labor
questionnaires, the Department must verify the company’s responses. Obtaining a sworn
15
statement from the company official who prepares the responses to Labor’s questions is not
sufficient verification. Labor’s failure to conduct an adequate investigation in accordance with
these instructions will be taken as indicative that the Department does not care to perform its
duties competently, and the court will not remand for a fifth investigation.
V
CONCLUSION
This matter is remanded to Labor for further investigation and consideration of the
amount of production shifted to Canada from the United States. Specifically, Labor is instructed
to investigate the claims made in the chart titled “Ex-Van Leer Items – Allocation of Production
Per Site Since the Close of Van Leer Factory”, submitted to Labor by Barry Callebaut, and how
they conflict with the statements made in the Annual Report. As noted above, should the
Department find that the statement made in the chart is truthful, it is instructed to refer this
matter to the Securities and Exchange Commission.
__________________________
Evan J. Wallach, Judge
Date: November 2, 2001
New York, New York
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