By Gabe Roth, FTC executive director

It was a case I had to see to believe. (And it’s a bit convoluted, so bear with me.)

Domestic mattress manufacturers claimed years ago that they were being undercut by foreign mattress manufacturers, so they petitioned an independent, quasi-judicial body called the U.S. International Trade Commission to request that the U.S. impose “antidumping and countervailing duties” on these mattress imports. These are tariffs that protect domestic industries from unfairly priced imports.

The ITC agreed. When the foreign mattress companies petitioned the U.S. Court of International Trade to have those tariffs reduced or revoked, they lost, in an opinion handed down by Judge Stephen Vaden in Dec. 2023 (meaning this all happened pre-Trump tariffs).

But here’s where it gets interesting and touches on the work of Fix the Court.

Though the ITC won the case (21-288, CVB, Inc. v. U.S. in CIT; 24-1566, In Re: US in CAFC, consolidated with 25-127), the Commission was upset that Judge Vaden included in his opinion certain details about the mattress industry that they believe should’ve remained confidential.

Those details were gleaned from the questionnaires the ITC itself sent to a few dozen of the domestic manufacturers; Judge Vaden quoted from them in his opinion.

As you might imagine, several arguments cut against the ITC’s claim of confidentiality.

First is federal law, which states in 19 U.S.C. §1516a(b)(2)(B), a judge “may disclose such material under such terms and conditions as [he] may order.” Second is that the ITC may have missed the deadline for filing a request for redaction, which goes into a whole conversation on tolling that’s not really worth mentioning here but weighs against the ITC’s claims. Third are common law presumptions of transparency in judicial opinions, which is self-explanatory.

I attended argument in the U.S. Court of Appeals for the Federal Circuit on Nov. 4 to hear the ITC’s arguments before Judges Dyk, Taranto and Chen.

ITC attorney Courtney McNamara couldn’t answer basic questions on why it took so long for the ITC to appeal and why the mattress companies didn’t try to immediately file something in the record objecting to parts of their questionnaires being made public in Judge Vaden’s opinion. Her argument boiled down to the fact that making questionnaires public imperiled its work. “The Commission is not trying to hide things; they’re just trying to do their job,” she said during rebuttal.

Court-appointed amicus Andrew Dhuey (disclosure: I gave a presentation on Fix the Court to his GW law class later that afternoon) made the point that by the time Judge Vaden issued his opinion, the questionnaire data was four years old and, for that matter, didn’t include hard numbers.

He countered the ITC’s argument about the judge failing to do his job with this point: it can’t be that a judge is abusing his discretion by not having overbroad redaction instructions, which is apparently what the ITC was hoping he’d have. You can read Dhuey’s amicus brief here.

(As an aside, what made the case even more interesting, if not a bit depressing, was when Dhuey’s co-counsel Alex Moss said the following: “We trust the courts to do access to courts, period.” So, yes — in this case, sure. But we do not trust the courts to do access in, waves hands wildly, so many other contexts — broadcast of court proceedings, free access to court filings, releasing financial disclosures in a timely manner, explaining judicial recusals, etc.)

Bottom line: the three-judge panel thankfully seemed to agree with Judge Vaden’s call not to over-redact his 2023 opinion.

We’ll know for certain next year sometime when the opinion comes out.