MSC facing judgment on MCS Industries complaint on pricing

The Chief Administrative Law Judge at the US Federal Maritime Commission (FMC) has issued an order denying shipping line MSC’s motion for an extension of time to produce outstanding discovery documents in the complaint filed by MCS Industries.

On July 29th an order was issued requiring MSC to produce documents within a month. MSC did not provide the required documents to meet that deadline, instead on August 26th filing a motion seeking an extension of time. On September 2nd MCS Industries filed an opposition to that motion.

On September 6th MSC filed a notice of advice of the Swiss Federal Office of Justice (the domicile of the company’s operation).

According to the order by Erin M Wirth, denying MSC’s motion, the company had continued to argue “despite rulings to the contrary in this proceeding and in the Republic and Canton of Geneva Court of First Instance, that, due to Swiss legal requirements, it cannot produce the discovery ordered in the December 8th 2021 motion to compel and the July 29th 2022 order requiring production of discovery, and that the Swiss court’s decision that their intervention is not necessary was in error.”

Judge Wirth wrote in the order that “it is clear that this ‘advice’ from the Federal Office of Justice in Switzerland merely identifies the process for resubmitting a request and the factors that may be taken into account, without any discussion of the merits of this proceeding. The question of whether Swiss assistance with discovery is required has been answered by the undersigned Administrative Law Judge and by the Court of First Instance in Geneva.”

In multiple filings MSC indicated that it would not produce the discovery that it has been repeatedly ordered to produce.

MCS Industries asserted in response that MSC “cannot accept the benefits of shipping cargo to and from US ports while shirking its legal and regulatory obligations before the Commission.”

MCS Industries thus requested a decision on default, and the judge has ordered MSC to show cause why default judgment should not be entered against it.

MSC is now ordered, by September 22nd, to either provide the required discovery or show cause why default judgment should not be entered against it.