Just before the U.S. Supreme Court's most recent term expired, the justices set the stage for a potential test of the Trump administration's ideological vigor. In this instance, however, they did so without publishing a landmark decision, or even granting a writ of certiorari filed in a controversial case. Instead, on June 26, 2017, the Supreme Court invited Acting Solicitor General Jeffrey Wall to “file a brief … expressing the views of the United States” regarding Animal Science Products v. Hebei Welcome Pharmaceuticals Co., also known as In re Vitamin C Antitrust Litigation, 837 F.3d 175 (2d Cir. 2016). This Second Circuit decision is currently under the Supreme Court's consideration for a grant of certiorari in the coming term.

By inviting Wall's office to file a brief, the court has offered President Donald Trump and his government an opportunity to expound on one of the president's most popular talking points pre- and post-campaign—the issue of China's abuses of international trade. Candidate and now President Trump has been explicit in accusing China of hurting the U.S. economy through unfair trading practices, including repeatedly running afoul of anti-dumping laws which are designed to prevent foreign manufacturers from undercutting U.S. companies by selling goods at an unfair price. As China is the largest trade partner of the United States, President Trump's views toward the country could have significant effects on the U.S. and global economies. While the opportunity to file an amicus brief in In re Vitamin C Antitrust Litigation is not an explicit invitation to tie President Trump's policy goals to applicable law, keen political observers will be watching for the Solicitor General's filing to gain early insight into the ever-shifting priorities of the new administration. The key issue before the court, if it should decide to take up the case, will relate to how much deference to give to the Chinese Ministry of Commerce's (MOFCOM) interpretation of its own regulations, even where those regulations compel companies to break the laws of the United States.

'In re Vitamin C'

In re Vitamin C Antitrust Litigation has risen through the federal court system from its beginnings as a multi-district antitrust class action brought against Chinese vitamin C producers. The plaintiffs, U.S. vitamin C purchasers, allege that the defendants conspired to fix the price and supply of vitamin C sold to U.S. companies in the international market in violation of the Sherman and Clayton Acts. After the defendants' motions to dismiss and for summary judgment were denied, a jury awarded the plaintiffs $147 million in damages, which the defendants appealed to the Second Circuit. In re Vitamin C Antitrust Litig., No. 05-CV-0453, 2013 WL 6191945 (E.D.N.Y. Nov. 26, 2013), vacated, 837 F.3d 175 (2d Cir. 2016).

The overarching issue in these decisions has been the conduct of the Chinese producers and their relationship to the Chinese government. During its long transition from a centralized state-run economy to a more market-oriented one, beginning in the 1970s, the Chinese government imposed various successful export controls in order to maintain a competitive edge in the global vitamin C market, including consolidation and price-controlling regulations. Specifically, an “association” or “Chamber” controlled by the Chinese government allegedly colluded with the producers to restrict exports and fix prices.¹ Throughout the litigation, the defendants have not denied that exports were limited and a minimum price was set. Instead, they argue that they acted pursuant to Chinese government regulations imposed by MOFCOM, which mandated that the defendants coordinate prices and create a supply shortage. This distinction is what formed the basis of the defendants' motion to dismiss under the principle of international comity.²