Slip Op. 23-130

UNITED STATES COURT OF INTERNATIONAL TRADE 

GOPRO, INC. 

Plaintiff, 

v. 

UNITED STATES 

Defendant. 

Before: Timothy M. Reif, Judge 

Court No. 20-00176 

MEMORANDUM AND ORDER 

The following order concerns the challenge by plaintiff GoPro, Inc. (“plaintiff” or 

“GoPro”) of the classification of subject merchandise by U.S. Customs and Border 

Protection (“Customs”) of eight camera housing models under subheading 

4202.99.9000 of the Harmonized Tariff Schedule of the United States. The subject 

merchandise encompasses GoPro’s eight models of camera housings (“camera 

housings”) for use with GoPro’s HERO 3, HERO 3+, HERO 4 action cameras and 

HERO 5, 6, 7 Black action cameras (“action cameras”). 

Below, the court identifies questions of material fact that are allegedly not in 

dispute but as to which the opposing party has not admitted. In consideration of oral 

argument,1 record evidence and parties’ submissions to the court in support of their 

cross-motions for summary judgment, the parties are ordered to file supplemental 

1 Oral argument concerning the cross-motions for summary judgment for classification 

of the subject merchandise was held on March 15, 2023. Oral Arg., ECF No. 46. 
Court No. 20-00176 Page 2 

briefing in response to the court’s questions concerning potential outstanding material 

facts in dispute in the parties’ U.S. Court of International Trade (“USCIT”) Rule 56.3 

Statements. See generally, Pl.’s Stmt. Facts (“Pl. Stmt. Facts”), ECF No. 29-1; Def.’s 

Stmt. Facts (“Def. Stmt. Facts”), ECF No. 33; Def.’s Resp. Pl.’s Stmt. Facts (“Def. Resp. 

Pl. Stmt. Facts”), ECF No. 33; Pl.’s Resp. Def. Stmt. Facts (“Pl. Resp. Def. Stmt. 

Facts”), ECF No. 37-1; Pl.’s Reply Def.’s Resp. Pl.’s Stmt. Facts (“Pl. Reply Def. Resp. 

Pl. Stmt. Facts”), ECF No. 37-3. 

BACKGROUND 

Plaintiff and defendant filed cross-motions for summary judgment in which each 

states that there is “no genuine issue as to any material fact.” Pl.’s Mot. Summ. J. (“Pl. 

Br.”) at 6, ECF No. 29 (citing USCIT R. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 

323 (1986); Def.’s Cross-Mot. Summ. J. (“Def. Br.”) at 13, ECF No. 33 (citing USCIT R. 

56(c);2 Celotex, 477 U.S. at 317, 322 (1986)). “The court shall grant summary judgment 

if the movant shows that there is no genuine dispute as to any material fact and the 

movant is entitled to judgment as a matter of law.” USCIT R. 56(a). 

The court concludes that each party’s disputes and denials with respect to the 

other party’s USCIT Rule 56.3 Statement demonstrate that there may be outstanding 

issues of material facts, despite parties’ repeated assertions to the contrary. Pl. Resp. 

Def. Stmt. Facts at 1 (stating that “[a]lthough Plaintiff objects to some of the Defendant’s 

statements in that they are immaterial or inaccurately reflect the record/the evidence 

cited, nothing in Defendant’s Statement raises a genuine dispute as to any material fact 

2 Plaintiff and defendant cite incorrectly to USCIT Rule 56(c) to support the standard for 

summary judgment. Pl. Br. at 6; Def. Br. at 13. The court directs parties to USCIT Rule 

56(a) as the apposite rule for summary judgment. USCIT R. 56(a). 
Court No. 20-00176 Page 3 

for the purposes of Plaintiff’s Motion for Summary Judgment.”); Def. Br. at 11. The 

classification of subject merchandise is a fact-intensive inquiry for the court. See ADC 

Telecommunications, Inc. v. United States, 916 F.3d 1013, 1017 (Fed. Cir. 2019) 

(describing the two-step inquiry of classification of merchandise: “[the court] ascertain[s] 

the meaning of the terms within the relevant tariff provision, which is a question of law, 

and, second, [the court] determine[s] whether the subject merchandise fits within those 

terms, which is a question of fact.”) (citing Sigma-Tau HealthSci., Inc. v. United States, 

838 F.3d 1272, 1276 (Fed. Cir. 2016)). The two-step inquiry “collapses into a question 

of law” when there is no genuine dispute as to the nature of the subject merchandise. 

LeMans Corp. v. United States, 660 F.3d 1311, 1315 (Fed. Cir. 2011). In the instant 

action, the court directs parties to confirm their positions regarding the nature of the 

subject merchandise to confirm that the action is ripe for summary judgment. 

Accordingly, parties are directed to: (A) come to an agreement on each fact 

noted below that they state is “undisputed” and state clearly the undisputed fact; or (B) 

state clearly that certain facts are not agreed and are disputed. 

The court notes finally that, with respect to each material fact discussed below, 

the potential dispute raised by each party to the other’s Rule 56.3 Statement is not 

sufficiently precise to understand the dispute as to a material fact or in some cases 

even whether there is a genuine dispute. In this respect, the parties have not provided 

the court with sufficient guidance in their respective Rule 56.3 Statements.3

3 USCIT Rule 56.3 states in relevant part: 

On any motion for summary judgment filed pursuant to Rule 56, the factual 

positions described in Rule 56(c)(1)(A) must be annexed to the motion in a 

separate, short and concise statement, in numbered paragraphs, of the 
Court No. 20-00176 Page 4 

Under USCIT Rule 56(e)(1), the court may offer parties an opportunity to address 

facts that appear to remain outstanding on summary judgment. USCIT R. 56(e)(1) (“If a 

party fails to properly support an assertion of fact or fails to properly address another 

party's assertion of fact as required by Rule 56(c), the court may give an opportunity to 

properly support or address the fact”). Accordingly, the court directs parties to answer 

in a short and concise manner Questions 1, 2 and 3 below. For ease of reference, the 

court directs parties to their initial submissions, responses and replies thereto to 

highlight the potentially disputed fact before the court. 

I. Questions for parties concerning factual issues 

Question 1: Do the camera housings feature lens coverings that obstruct or 

inhibit use of the action camera as a camera when enclosed within the camera 

housings? 

In its Rule 56.3 Statement, plaintiff states that the camera housings do not 

feature a protective lens covering, a fact that the government denies in its response and 

contradicts in its own Rule 56.3 Statement for its cross-motion for summary judgment: 

29. The Camera Housings do not feature a protective lens covering for 

storage or transport of the action camera.4

Government’s Response: Denies. See P-18 which states “The Camera 

Housings consist of a ridged plastic water- sealed shell made out of the 

polycarbonate, with hardened flat glass over the lens assembly.” The 

hardened flat glass is part of the protective container which protects the 

Hero Action Camera’s lens. Avers that GoPro also offers lens covers for 

the Standard housing based models and Dive Housing which not only 

material facts as to which the moving party contends there is no genuine 

issue to be tried. 

USCIT R. 56.3(a). 

4 For purposes of this discussion, citations to the relevant paragraph number are 

included and parties’ internal citations to record evidence have been omitted 

throughout. 
Court No. 20-00176 Page 5 

cover the housing lens but also obstructs the housings “pass-thru” “on” 

button, precluding any accidental activations during storage or transport. 

NO GENUINE DISPUTE – Plaintiff’s factual proposition that the Camera 

Housings do not feature a protective lens cover for storage and transport 

of action camera is uncontroverted. The government’s averred facts do 

nothing to controvert this factual assertion. With respect to lens cover, the 

government ignores record evidence that Lens Cover is an optional 

standalone accessory for one model of camera housing. Offered precisely 

because that housing’ lens assembly can be damaged in transport. It did 

not ship with the products at issue in this lawsuit. 

Pl. Reply Def. Resp. Pl. Stmt. Facts at ¶ 29.5

Question 2: Is the action camera functional as a camera (photography and 

videography purposes) while within the camera housing? 

 Plaintiff and defendant, respectively, use the terms “fully functional” and “retain[s] 

100% functionality” and then disagree on what it means for the action camera to be 

“fully functional” or to “retain 100% functionality” inside the camera housings. The 

question to which the court seeks an answer is whether the camera is “functional as a 

camera (photography and videography purposes) while within the camera housing”: 

32. The GoPro HERO action camera remains fully functional while housed 

inside the Camera Housing, so that it may be used while inside the 

housing. 

Government’s Response: Denies. The Hero Action cameras do not retain 

100% functionality when inserted into the GoPro waterproof housings. The 

Hero Action cameras without the housings have capabilities of great 

image quality and great audio quality. When the Hero Action cameras are 

inserted in the GoPro waterproof housings, the audio quality is degraded 

5 Defendant submitted a separate Rule 56.3 Statement to support its cross-motion for 

summary judgment, which features a directly contradictory fact, controverted by plaintiff 

in its response thereto: 

36. The GoPro Housings have covers which both cover the lens and the 

power button on the housings which have the power button and lens on 

the front of the housings, i.e., the Dive Housing, Wrist Housing, Camo 

Housing, Standard Housing and Skeleton Housing. 

Pl. Resp. Def. Stmt. Facts at ¶ 36. 
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and muffled. Improved audio quality is one of the reasons GoPro came up 

with the Skeleton Housing, which is the only housing at issue which is not 

waterproof mainly because it has ports (holes) and cut-outs in the sides 

and back of the housing. Further, when a Hero camera is placed inside 

the tight-fitting GoPro housing, the camera heats up when operating as it 

is fairly power hungry. While a heat sink on the camera housing helps 

dissipate heat buildup, the camera sealed inside the waterproof housing 

can overheat under certain conditions resulting in a shutdown. 

Additionally, once the Hero Action camera is enclosed in a GoPro 

waterproof housing there is no access to the camera’s HDMI and 

microphone ports, which are preferable for media or TV and movie 

production. For these reasons the Hero action camera does not retain 

100% functionality when enclosed in the GoPro Waterproof Housings. 

NO GENUINE DISPUTE – The government factual assertion that the 

GoPro action camera is not fully functional when enclosed in the GoPro 

waterproof housing misstates record evidence. The cited evidence does 

not support the fact that the audio performance is “degraded” and does 

not deliver acceptable performance when the action camera is enclosed in 

the waterproof housing during intended extreme activities. The record 

evidence shows that the Skeleton housing is only recommended where 

IMPROVED audio is desirable, i.e., professional media applications where 

access to the HDMI/Mic ports is preferred. The cited evidence also does 

not support the asserted fact that the camera is susceptible to overheating 

while enclosed in the housing any more than any other consumer 

electronic device (i.e., cell phone or laptop) under the direct sunlight and 

no airflow. The government does not (and cannot) dispute that the GoPro 

action camera is fully functional when enclosed in the Camera Housings at 

issue in this litigation during filming in active environments as intendeds – 

it is waterproof, shockproof, mountable, captures great video and 

acceptable audio. 

Pl. Reply Def. Resp. Pl. Stmt. Facts at ¶ 32. 

Question 3(a): Are the spring buttons6 on the camera housing designed to 

resist, to some degree, pressure so as to minimize accidental turning on or 

off of the camera? 

6 In their Rule 56.3 Statements and briefs, parties refer interchangeably to the buttons 

on the camera housings as “spring-loaded buttons,” “press-thru” buttons, “pass-through 

button plungers” and “exposed functional button assemblies.” Pl. Resp. Br. at 5; Def. 

Stmt. Facts ¶¶ 35, 11. The court uses the term “spring buttons” to refer to the feature 

on the camera housings to which parties refer as the buttons on the camera housings 

that correspond to the power and functional buttons on the action cameras. 
Court No. 20-00176 Page 7 

Question 3(b): Do the spring buttons on the camera housing correspond to 

the buttons on the action camera both to enable the user to turn the 

camera on while it is in the housing and to provide some degree of 

protection to the camera? 

 

Question 3(c): Are the parties in agreement with the following statement: if 

the camera housings were to be used as the primary storage solution for 

the action camera, the spring buttons could be fouled by dirt and grime? 

 

 Plaintiff and defendant dispute the degree to which the buttons on the 

camera housings are affected by the environment in which they are used: 

35. The resistance of the springs of the housing’s “press-thru” buttons 

which control some of the camera’s functions were tested to ensure the 

buttons were capable of “resist[ing] accidental presses”. 

Plaintiff disputes this assertion as stated with respect to the 

characterization [sic] the product and marketing requirements regarding 

resistance of the housing’s buttons. . . . Regardless, the asserted fact is 

immaterial. It is undisputed that “If the Camera Housing were to be used 

as the primary storage solution, the user would risk scratching the 

lens assembly and the action camera could be rendered unusable. Also, 

the entire camera optical system is subject to damage if dropped on the 

lens glass while in the housing. Similarly, if the Camera Housing were to 

be used as the primary storage solution, the exposed functional button 

assemblies could be fouled by dirt and grime and, if bumped, the buttons 

could inadvertently power the camera on, or actuate the shutter, 

consuming the battery and valuable microSD memory card storage space. 

To the contrary, camera cases are specifically designed to protect both 

cameras and lenses alike from all of the above.” 

Pl. Resp. Def. Stmt. Facts ¶ 35 (quoting Pl. Stmt. Facts ¶ 38).7 

 Both parties’ responses and replies to the respective opposing party’s 

statements of fact in the quoted excerpts above from party submissions are 

7 Plaintiff cites to its own Rule 56.3 Statement of Facts, claiming that the fact is 

“undisputed.” Pl. Reply Def. Resp. Pl. Stmt. Facts ¶ 38. The court notes that plaintiff’s 

characterization that this fact is “undisputed” is inaccurate: defendant denies this fact in 

its response to plaintiff’s statement, stating, “denies that the buttons would likely be 

fouled by dirt and grime.” Def. Resp. Pl. Stmt. Facts ¶ 38.
Court No. 20-00176 Page 8 

referenced along with the court’s questions to provide guidance to parties so that 

they may avoid repeating themselves in their answers.

CONCLUSION 

In the absence of adequate guidance through Rule 56.3 Statements and 

contradictory assertions from both parties therein, the court directs parties to address 

through their answers to the foregoing questions whether there are any outstanding 

material facts in dispute or whether the instant action is ripe for summary judgment. 

Accordingly, it is hereby 

 ORDERED that each party file within 30 days of this order a responsive 

supplemental USCIT Rule 56.3 Statement in response to the court’s questions. 

ORDERED that each supplemental responsive statement is limited to 200 words 

per question for each party. 

SO ORDERED. 

/s/ Timothy M. Reif 

Judge 

Dated: September 11, 2023 

 New York, New York