WT/DS162/R/Add.1 Page 55
predatory intent defined in [competition law] because the statute 'has a protectionist reach beyond anti-trust and traditional predatory price-discrimination pleading requirements.'"201
Like the court in Geneva Steel, the court in Wheeling-Pittsburgh stressed the five specific harms enumerated by the statute. The court confirmed that the first three of them protected competitors (as an anti‑dumping statute).202
Japan points out that, although Geneva Steel and Wheeling-Pittsburgh are still in litigation, the district judges have clearly and unequivocally expressed their views on the characteristic of the 1916 Act, and that issue, if not the issue of liability, has been finally resolved. Moreover, a review of these decisions indicates that each is thoughtful and well reasoned.
The United States recalls that in Geneva Steel the US District Court for the District of Utah addressed the elements of the 1916 Act in the course of ruling on the defendants' motion for dismissal of the complaint. Its decision viewed the requisite intent element of the 1916 Act differently from the Zenith III court. In the Geneva Steel court's view, a complainant could show either the traditional anti‑trust type predatory intent or an intent to injure an US industry.203 However, the court did observe regarding the requirement of intent:
"[T]he burden of proving such improper intent may not be easy. Absent some compelling evidence, it may be nearly impossible."204
The United States notes that in Wheeling‑Pittsburgh, the US District Court for the Southern District of Ohio recently ruled on a motion to dismiss a civil complaint. In the course of its ruling, it stated that the 1916 Act does require proof of predatory intent, albeit of a different kind than is required under the Sherman Act or the Robinson‑Patman Act. Like Geneva Steel, the court held that a complainant must prove an intent to injure, destroy or prevent the establishment of a domestic industry, but does not have to establish the reasonable prospect of resultant market control and price recoupment. Although some defendants have elected to settle rather than proceed to trial, the case is still pending while the remaining litigants conduct discovery.205
201 Wheeling-Pittsburgh, Op. Cit., p. 604 (citations omitted by Japan).
202 Japan refers to ibid., p. 603.
203 The United States refers to Geneva Steel, Op. Cit., p. 1217, 1224.
204 The United States refers to ibid., p. 1224 (emphasis added by the United States).
205 It should be noted that, since the second substantive meeting of the Panel with the parties, there have, according to the United States, been further developments in the Wheeling-Pittsburgh case. According to the United States, the plaintiff in Wheeling-Pittsburgh has voluntarily dismissed its claims against the remaining defendants at the trial court level so that all that remains is an appeal of an interlocutory opinion regarding injunctive relief currently pending before the US Court of Appeals for the Sixth Circuit.