Slip Op. No. 23-184 

UNITED STATES COURT OF INTERNATIONAL TRADE 

CVB, INC., 

Plaintiff, 

v. 

UNITED STATES, 

Defendant,

 and 

BROOKLYN BEDDING, LLC, et al., 

 Defendant-Intervenors.

Before: Stephen Alexander Vaden, 

 Judge 

Court No. 1:21-cv-00288 (SAV) 

OPINION 

[Sustaining the International Trade Commission’s final affirmative injury 

determination.] 

Dated: December 19, 2023 

Geoffrey M. Goodale, Duane Morris LLP, of Washington, DC, for Plaintiff CVB, Inc. 

With him on the briefs were Andrew R. Sperl, Nathan J. Heeter, and Lauren E. 

Wyszomierski, Duane Morris LLP, and Stephen G. Larson, Robert C. O’Brien, and 

Paul A. Rigali, Larson LLP, of Los Angeles, CA. 

Jane C. Dempsey, Office of the General Counsel, United States International Trade 

Commission, of Washington, DC, for Defendant United States. With her on the 

briefs were Dominic Bianchi, General Counsel; Andrea C. Casson, Assistant 

General Counsel for Litigation; and Brian R. Soiset, Attorney-Advisor. 

Mary Jane Alves, Cassidy Levy Kent (USA) LLP, of Washington, DC, for DefendantIntervenors Brooklyn Bedding, LLC; Corsicana Mattress Company; Elite Comfort 

Solutions; FXI, Inc.; Innocor, Inc.; Kolcraft Enterprises, Inc.; Leggett & Platt, Inc.; 

the International Brotherhood of Teamsters; and United Steel, Paper and Forestry, 

Rubber, Manufacturing, Energy, Allied Industrial and Service Workers 

International Union, AFL-CIO. With her on the briefs were Yohai Baisburd and 

Sydney Reed. 
Court No. 1:21-cv-00288 (SAV) Page 2 

Vaden, Judge: CVB, Inc. (CVB) challenges the International Trade 

Commission’s (ITC or the Commission) final affirmative injury determination in its 

antidumping and countervailing duty investigations of mattresses from Cambodia, 

China, Indonesia, Malaysia, Serbia, Thailand, Turkey, and Vietnam. See Compl. ¶ 

1, ECF No. 8; Mattresses from Cambodia, China, Indonesia, Malaysia, Serbia, 

Thailand, Turkey, and Vietnam, 86 Fed. Reg. 26,545 (ITC May 14, 2021), J.A. at 

14,715, ECF No. 60; Mattresses from Cambodia, China, Indonesia, Malaysia, 

Serbia, Thailand, Turkey, and Vietnam (Final Determination), Inv. Nos. 701–TA–

645 and 731–TA–1495–1501 (Final), USITC Pub. No. 5,191 (May 2021), J.A. at 

124,040, ECF No. 66. Defendant-Intervenors in support of the Commission’s final 

affirmative injury determination are Brooklyn Bedding, LLC; Corsicana Mattress 

Co.; Elite Comfort Solutions; FXI, Inc.; Innocor, Inc.; Kolcraft Enterprises, Inc.; 

Leggett & Platt, Inc.; the International Brotherhood of Teamsters; and the United 

Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and 

Service Workers International Union, AFL-CIO (collectively, DefendantIntervenors). See Def.-Ints.’ Resp. to Pl.’s Mot. for J. on the Agency R. (Def.-Ints.’ 

Resp.) at 1, ECF No. 53. Before the Court is CVB’s Motion for Judgment on the 

Agency Record. Pl.’s Mot. for J. on the Agency R. (Pl.’s Br.), ECF No. 48. CVB 

contends that the Commission’s final affirmative injury determination is 

unsupported by substantial evidence. Id. at 1–2. For the reasons set forth below, 

the Court SUSTAINS the Commission’s determination.
Court No. 1:21-cv-00288 (SAV) Page 3 

BACKGROUND 

A. Procedural History 

On March 31, 2020, the Defendant-Intervenors petitioned the Department of 

Commerce and the Commission to impose antidumping and countervailing duties 

on imports of mattresses from Cambodia, China, Indonesia, Malaysia, Serbia, 

Thailand, Turkey, and Vietnam (the Subject Countries). See Petition: Mattresses 

from Cambodia, China, Indonesia, Malaysia, Serbia, Thailand, Turkey, and 

Vietnam: Antidumping and Countervailing Duty Petitions, J.A. at 1,000–3,951, 

ECF No. 60. The Commission’s period of investigation covered calendar year 2017 

through September 2020. Def.’s Resp. to Pl.’s Mot. for J. on the Agency R. (Def.’s 

Resp.) at 6, ECF No. 51. On May 15, 2020, the Commission issued its preliminary 

determination. See Mattresses from Cambodia, China, Indonesia, Malaysia, Serbia, 

Thailand, Turkey, and Vietnam, 85 Fed. Reg. 30,984 (ITC May 21, 2020), J.A. at 

9,046, ECF No. 60; Mattresses from Cambodia, China, Indonesia, Malaysia, Serbia, 

Thailand, Turkey, and Vietnam, Inv. Nos. 701–TA–645 and 731–TA–1495–1501 

(Preliminary), USITC Pub. No. 5,059 (May 2020), J.A. at 9,048–373, ECF No. 60. 

Nearly one year later, on May 14, 2021, the Commission published its final 

determination. See Final Determination, J.A. at 124,040–570, ECF No. 66. 

B. Prior Mattresses from China Investigation 

In December 2019, three months before the underlying petition in this case, 

the Commission published its final affirmative injury determination in an 
Court No. 1:21-cv-00288 (SAV) Page 4 

investigation of Chinese mattress imports. Mattresses from China, Inv. No. 731–

TA–1424 (Final), USITC Pub. No. 5,000 (December 2019), J.A. at 6,505–62, ECF 

No. 60. In 2017 and 2018, Chinese imports accounted for roughly four-fifths of 

cumulated subject imports. Final Determination at 39, J.A. at 124,081, ECF No. 66. 

In 2019, Chinese imports constituted less than one-third of all imports while subject 

imports from other countries rose by thousands of percent. Id. at 39–40, J.A. at 

124,081–82. Between interim 2019 and interim 2020, Chinese imports declined to 

almost nothing; but subject imports from other countries rose a further two hundred 

percent. Id. at 40, J.A. at 124,082. These imports from other countries were often 

from companies related to Chinese producers that no longer exported their products 

to the United States. Id. At 39 n. 165, 40 n.168, J.A. at 124,081–82. 

C. The Present Factual Record 

The Commission began its material injury investigation by defining the 

“domestic like product.” Final Determination at 7–9, J.A. at 124,049–51, ECF No. 

66; see also 19 U.S.C. § 1677(10). The Commission defined the domestic like 

product as: 

The products covered by this investigation are all types of 

youth and adult mattresses. The term “mattress” denotes 

an assembly of materials that at a minimum includes a 

“core,” which provides the main support system of the 

mattress, and may consist of innersprings, foam, other 

resilient filling, or a combination of these materials. 

Mattresses may also contain (1) “upholstery,” the material 

between the core and the top panel of the ticking on a 

single‐sided mattress, or between the core and the top and 

bottom panel of the ticking on a double‐sided mattress; 
Court No. 1:21-cv-00288 (SAV) Page 5 

and/or (2) “ticking,” the outermost layer of fabric or other 

material (e.g., vinyl) that encloses the core and any 

upholstery, also known as a cover. 

The scope of this investigation is restricted to only “adult 

mattresses” and “youth mattresses.” [. . . .] All adult and 

youth mattresses are included regardless of size or size 

description. 

The scope encompasses all types of “innerspring 

mattresses,” “non‐innerspring mattresses,” and “hybrid 

mattresses.” [. . . .] 

Mattresses covered by the scope of this investigation may 

be imported independently, as part of furniture or 

furniture mechanisms (e.g., convertible sofa bed 

mattresses, sofa bed mattresses imported with sofa bed 

mechanisms, corner group mattresses, day‐bed 

mattresses, roll‐away bed mattresses, high risers, trundle 

bed mattresses, crib mattresses), or as part of a set in 

combination with a “mattress foundation.” [. . . .] 

Excluded from the scope of this investigation are “futon” 

mattresses. [. . . . ] 

Also excluded from the scope are airbeds (including 

inflatable mattresses) and waterbeds, which consist of 

air‐ or liquid‐filled bladders as the core or main support 

system of the mattress. Also excluded is certain 

multifunctional furniture that is convertible from seating 

to sleeping [. . . .] Such furniture may, and without 

limitation, be commonly referred to as “convertible sofas,” 

“sofa beds,” “sofa chaise sleepers,” “futons,” “ottoman 

sleepers” or a like description. 

Also excluded from the scope of this investigation are any 

products covered by the existing antidumping duty orders 

on uncovered innerspring units from China or Vietnam. 

Also excluded from the scope of this investigation are 

bassinet pads with a nominal length of less than 39 
Court No. 1:21-cv-00288 (SAV) Page 6 

inches, a nominal width less than 25 inches, and a 

nominal depth of less than 2 inches. 

Additionally, also excluded from the scope of this 

investigation are “mattress toppers.” [. . . .] 

Final Determination at 7–9, J.A. at 124,049–51, ECF No. 66 (internal citations 

omitted). No party challenges the like product definition, which includes many 

mattress varieties. See Def.’s Resp. at 7, ECF No. 51 (“During the final phase, CVB 

did not argue for another domestic like product definition or against cumulation, 

and it does not challenge the Commission’s findings on these issues.”); Pl.’s Reply at 

6–7, ECF No. 58 (agreeing that CVB did not challenge the domestic like product 

determination and distinguishing its argument from a challenge to the domestic 

like product determination). 

Mattresses are either boxed or flat-packed. Both packaging methods are 

included in the domestic like product definition. See Def.’s Resp. at 6–7, ECF No. 

51; Pl.’s Reply at 4, ECF No. 58. Boxed mattresses are compressed and rolled into a 

box for shipping, while flat-packed mattresses are boxed as-is and not compressed. 

Statement of Brian Adams at 143:7–13, J.A. at 7,569, ECF No. 60. Shipping boxed 

mattresses is typically cheaper and easier than shipping flat-packed mattresses 

because boxed mattresses are smaller when packaged. Id. at 144:7–17, J.A. at 

7,570. Consumers can transport boxed mattresses themselves or have them 

delivered to their door, whereas flat-packed mattresses require specialized delivery. 

Id. at 144:13–45:11, J.A. at 7,571–72. CVB argued throughout the administrative 
Court No. 1:21-cv-00288 (SAV) Page 7 

proceeding that the two packaging methods represent distinct, segmented markets 

with little direct competition. See, e.g., Pl.’s Reply at 6, ECF No. 58 (“[C]ompetition 

between the [flat-packed] and [boxed mattress] segments is highly attenuated”). 

 The Commission based its U.S. industry data on responses from fifty-three 

domestic producers that represented the vast majority of domestic production in 

2019. Final Determination at III-1, J.A. at 124,193, ECF No. 66. It based its U.S. 

import data on questionnaire responses from forty-nine companies that represented 

the majority of U.S. imports from the subject countries. Id. at IV-1, J.A. at 124,223. 

The foreign producer and exporter data was based on nineteen questionnaire 

responses from companies that represent a significant portion of subject imports. 

Id. at 4–5, J.A. at 124,046–47.1

The Commission may issue an affirmative injury determination when it 

concludes that an industry in the United States is materially injured or threatened 

with material injury by reason of certain imports. 19 U.S.C. §§ 1671d(b), 

1673d(b). In making this determination, the Commission must consider the volume 

of subject imports, their effect on prices for the domestic like product, and their 

impact on producers of the domestic like product. 19 U.S.C. § 1677(7)(B). The 

statute defines “material injury” as “harm which is not inconsequential, immaterial, 

or unimportant.” 19 U.S.C. § 1677(7)(A). In assessing material injury, the 

1 The Commission noted that sixteen responses were received to the final phase 

questionnaires, and the Commission relied on three more preliminary phase questionnaires 

in the absence of better data from Cambodia, Serbia, and Thailand. See Final 

Determination at 4–5, J.A. at 124,046–47, ECF No. 66. 
Court No. 1:21-cv-00288 (SAV) Page 8 

Commission considers all relevant economic factors that bear on the state of the 

industry in the United States. 19 U.S.C. § 1677(7)(C)(iii). No single factor is 

dispositive, and all relevant factors are considered “within the context of the 

business cycle and conditions of competition that are distinctive to the affected 

industry.” Id.

 The Commission began its Views by discussing the conditions of competition 

in the industry. It found that mattress demand “is tied to housing sales and 

economic activity, particularly new home sales, housing starts, home resales, 

interest rates, gross domestic product (“GDP”) growth, and consumer sentiment.” 

Final Determination at 35, J.A. at 124,077, ECF No. 66. The Commission found 

that demand trends were mixed, but up overall, with different types of mattresses 

having different sales trends. Id. at 36, J.A. at 124,078. Demand for boxed 

mattresses increased, but demand for flat-packed mattresses decreased. Id.

 Turning to supply, the Commission noted that domestic production served 

about two-thirds of the domestic needs; subject imports served less than one-third; 

and non-subject imports served the remainder. Id. at 37, J.A. at 124,079. The 

Commission found that many domestic producers specialize in certain kinds of 

mattresses, but a little less than a quarter of producers overlap between boxed 

mattresses and flat-packed mattresses. Id. at 38, J.A. at 124,080. After discussing 

industry consolidation and new investment, the Commission noted that domestic 

production capacity for boxed mattresses increased by 121.2 percent during the 
Court No. 1:21-cv-00288 (SAV) Page 9 

period of investigation and a further 48.6 percent in interim 2020. Id. at 38–39, 

J.A. at 124,080–81. The Commission concluded its discussion of supply by 

describing the near-total shift in subject imports away from China and toward other 

countries during the period of investigation. Id. at 39–40, J.A. at 124,081–82. 

 The Commission also considered substitutability. Id. at 41, J.A. at 124,083. 

The Commission found a “moderately high degree of substitutability between 

domestically produced mattresses and subject imports.” Id. It further found that 

subject imports of boxed mattresses competed with flat-packed mattresses. Id. at 

41–42, J.A. at 124,083–84. Although most domestic production was flat-packed 

mattresses and most imports were boxed mattresses, the Commission found “the 

vast majority of responding purchasers reported that domestically produced 

mattresses were interchangeable with and comparable to subject imported 

mattresses.” Id. at 42, J.A. at 124,084. From reviewing the provided data, the 

Commission concluded that: (1) boxed and flat-packed mattresses can usually be 

made to the same specifications and are functionally interchangeable once 

unpackaged; (2) packaging is unimportant to end consumers; (3) online retailers do 

not provide search filters for packaging; and (4) “[c]onsumer indifference towards 

mattress packaging is reflected in purchasing behavior at the wholesale level.” Id. 

at 42–43, J.A. at 124,084–85. 

 The ITC observed that “price is an important factor in purchasing decisions 

for mattresses, although non-price factors are also important.” Id. at 44, J.A. at 
Court No. 1:21-cv-00288 (SAV) Page 10 

124,086. Among those non-price factors, the Commission found that domestically 

produced mattresses and subject imports were “comparable in terms of lead times 

and channels of distribution” and “sold through the same channels of distribution.” 

Id. at 45, J.A. at 124,087. The Commission noted that the domestic industry faced 

about a ten percent increase in raw material costs during the period of 

investigation. Id. at 46, J.A. at 124,088. 

Having considered the prevailing conditions of competition, the Commission 

moved to the other statutory factors: the volume, price effect, and impact of subject 

imports. 19 U.S.C. § 1677(7)(B)(i). In considering these factors, the Commission 

must establish a causal connection between the subject imports and the material 

injury. Gerald Metals, Inc. v. United States, 132 F.3d 716, 720 (Fed. Cir. 1997). The 

statute ensures the Commission cannot “attribut[e] to subject imports an injury 

whose cause lies elsewhere.” OCP S.A. v. United States, 47 CIT __, 2023 Ct. Intl. 

Trade LEXIS 139 at *64 (citing Hynix Semiconductor, Inc. v. United States, 30 CIT 

1208, 1222 (2006)). 

Each of the factors requires the Commission to consider the effects of subject 

imports on the domestic industry. In its volume inquiry, the Commission must 

consider the significance of the quantity of imports, not just the absolute number. 

Id. at *39 (citing USX Corp. v. United States, 11 CIT 82, 85 (1987)). In its price 

inquiry, the Commission must consider whether there has been “significant price 

underselling” and whether “the effect of imports . . . otherwise depresses prices to a 
Court No. 1:21-cv-00288 (SAV) Page 11 

significant degree[.]” 19 U.S.C. § 1677(7)(C)(ii). Finally, in its impact inquiry, the 

Commission must consider “all relevant economic factors which have a bearing on 

the state of the industry[.]” 19 U.S.C. § 1677(7)(C)(iii). 

The Commission found the volume of subject imports was significant, both in 

absolute terms and relative to consumption. Final Determination at 48, J.A. at 

124,090, ECF No. 66. For price effects, the Commission found that subject imports 

sold for less than domestically produced mattresses in nearly every quarterly 

comparison. Id. at 50, J.A. at 124,092. 

Based on the moderately high degree of substitutability between 

subject imports and the domestic like product, the importance of price 

in purchasing decisions, and the pervasive underselling, as well as the 

purchase cost data, we find that subject import underselling was 

significant during the period of investigation. The significant 

underselling by cumulated subject imports contributed to subject 

imports gaining sales and market share at the domestic industry’s 

expense during the period of investigation. 

Id. at 52, J.A. at 124,094. The Commission therefore determined that imports had 

significant adverse effects on domestic like product prices. Id. at 56, J.A. at 

124,098. 

 In its impact analysis, the Commission found that low-priced subject imports 

kept prices low despite rising U.S. consumption. Id. at 58, J.A. at 124,100. The 

Commission based its determination that imports significantly impacted the 

domestic industry on reduced capacity utilization, high end-of-period inventories, 

slight reductions in sales, and changes in research and development and capital 

expenditures. Id. at 58–73, J.A. at 124,100–15. Having found that all three 
Court No. 1:21-cv-00288 (SAV) Page 12 

statutory factors were satisfied under the prevailing conditions of competition, the 

Commission concluded that the domestic industry was “materially injured by 

reason of imports of mattresses” from the subject countries. Id. at 73, J.A. at 

124,115. 

D. The Present Case 

On July 13, 2021, CVB filed a complaint with this Court, alleging that the 

Commission’s injury determination was unsupported by substantial evidence or 

otherwise not in accordance with law. Compl. ¶ 39, ECF No. 8. CVB argues that 

the Commission’s determination is unsupported by substantial evidence because: 

(1) The Commission improperly ignored record evidence that the U.S. mattress 

market is sharply segmented and that competition in it is highly attenuated; (2) it 

improperly ignored record evidence showing significant non-price reasons for 

increases in subject imports; (3) its determination that subject imports depressed or 

suppressed the prices of domestic like products is unsupported without either price 

convergence or signs of falling domestic prices; and (4) its determination that 

subject imports had a significant impact on the domestic industry improperly failed 

to consider the mattress industry’s segmentation between boxed and flat-packed 

mattresses. Pl.’s Br. at 2–4, ECF No. 48. CVB filed its Motion for Judgment on the 

Agency Record on March 28, 2022; the Commission filed its response on June 13, 

2022; Intervenors filed their response on July 1, 2022; and CVB filed its reply on 
Court No. 1:21-cv-00288 (SAV) Page 13 

August 1, 2022. Pl.’s Br., ECF No. 48; Def.’s Resp., ECF No. 51; Def.-Ints.’ Resp., 

ECF No. 53; Pl.’s Reply, ECF No. 58. 

The crux of CVB’s argument is that boxed mattresses and flat-packed 

mattresses occupy different segments of the mattress market — with producers and 

purchasers concentrating on one or the other and only highly attenuated 

competition existing between the two. CVB argues that any domestic industry 

injury reflected a demand shift away from flat-packed mattresses toward boxed 

mattresses and was not a consequence of unfairly priced imports. The parties agree 

that boxed mattresses are, as a general matter, cheaper than flat-packed 

mattresses. Oral Argument Transcript (Oral Arg. Tr.) at 7:21–22; 37:19, ECF No. 

75. Because the domestic industry produced mostly flat-packed mattresses and 

subject imports consisted almost exclusively of boxed mattresses, this demand shift 

resulted in an increased market share for imports at the expense of the domestic 

industry. See Pl.’s Br. at 9, ECF No. 48. 

At oral argument, the Court focused on the Commission’s use of statistics to 

support its conclusion that a significant share of producers and purchasers of 

mattresses overlapped between flat-packed and boxed mattresses. If true, this 

would tend to undermine CVB’s claim of market segmentation and attenuated 

competition. First, the Court noted that the Commission opportunistically treated 

companies that merged during the period of investigation as single companies in 

order to reach the conclusion that “[n]early a quarter (12) of responding domestic 
Court No. 1:21-cv-00288 (SAV) Page 14 

producers produced both [flat-packed] and [boxed mattresses] in 2019, with these 

producers accounting for [a majority] of [boxed mattress] production that year[.]” 

Final Determination at 38, J.A. at 124,080, ECF No. 66; Oral Arg. Tr. at 25:1–20, 

ECF No. 75. Tempur Sealy acquired Comfort in 2018, and Leggett & Platt acquired 

Elite in 2019. In each case, the acquiring company produced primarily flat-packed 

mattress; and its merger target predominately produced boxed mattresses. The ITC 

treated them as four separate entities throughout its Final Determination — except

the one time it found it convenient to treat the four companies as only two entities 

to inflate the market share of producers that manufactured both flat-packed and 

boxed mattresses. See id. Second, the Court noted the Commission’s questionable 

purchaser data summary, which concluded that “[c]onsumer indifference toward 

mattress packaging is reflected in purchasing behavior at the wholesale level” in 

part because “[e]leven of [nineteen] responding purchasers reported purchasing 

and/or importing both [boxed and flat-packed mattresses].” Final Determination at 

43, J.A. at 124,085, ECF No. 66; see also Oral Arg. Tr. at 27:22–28:1, ECF No. 75. 

The Court noted that most purchasers who reported buying both packaging types 

purchased vastly more of one mattress type than the other and that “there are only 

two . . . that had anything close to parity in their purchases of [boxed mattresses] 

and flat-pack mattresses.” Oral Arg. Tr. at 27:22–28:1, ECF No. 75. The Court 

characterized the Commission’s use of statistics as “legerdemain.” Id. at 26:16. The 

Commission responded that, although these portions of its Final Determination 
Court No. 1:21-cv-00288 (SAV) Page 15 

were “very inarticulately written,” they amounted only to “harmless error.” Id. at 

65:2–3. 

The Court recognized that the ITC changed its approach in the final pages of 

its Views. Id. at 41:16–25 (characterizing the last portion of the Views as an 

“alternative holding.”). After spending much of the document struggling against the 

evidence for a polarized mattress market, the Commission directly answered CVB’s 

rejoinder. It found that the domestic boxed mattress sector, considered separately 

from the domestic flat-packed mattress sector, was injured by subject imports. See 

Final Determination at 69–73, J.A. at 124,111–15, ECF No. 66. Specifically, the 

Commission found that, although domestic boxed mattress producers “improved 

their performance by most measures during the period of investigation,” their 

performance “would have been appreciably stronger during the period of 

investigation but for the significant volume and increase in volume of low-priced 

subject imports that displaced domestic industry shipments from the U.S. market 

and depressed domestic like product prices to a significant degree, including the 

prices of [boxed mattress] products.” Id. at 69–70, J.A. at 124,111–12. The 

Commission cited record evidence in support of this finding, including: (1) low 

factory capacity utilization despite increased U.S. boxed mattress consumption, (2) 

“subject imports of [boxed mattresses] increased their share of overall apparent U.S. 

consumption by more than domestically produced [boxed mattresses] during the 

period[,]” and (3) questionnaire responses from domestic boxed mattress producers 
Court No. 1:21-cv-00288 (SAV) Page 16 

indicated that imports adversely impacted returns on their investments. See id. at 

70–72, J.A. at 124,112–14. In other words, imports of boxed mattresses retarded 

the growth of domestic boxed mattress manufacturers’ sales. 

 The Court ordered the parties to submit supplemental letter briefs 

addressing whether the Commission’s “alternative holding” that considered the 

domestic boxed mattress industry in isolation allowed for the Commission’s 

mishandling of market polarization statistics to be harmless error. See Minute 

Order, ECF No. 71. In its supplemental brief, the Commission argued (1) “there has 

been no error” with respect to its handling of statistics; (2) “any lack of perfect 

clarity is unfortunate, but not deceptive”; and (3) were the Court to find that the 

Commission’s statistics were in error, “such error is harmless and does not warrant 

a remand.” Def.’s Supp. Br. at 2, ECF No. 79. The Commission asserted that it 

derived its finding of a high degree of overlap between boxed and flat-packed 

mattress manufacturers from a table that used data from 2019 only, and the 

relevant corporate acquisitions took place in 2018 and 2019. See id. at 2–4; see also 

Final Determination at III-3–6, J.A. at 124,195–98, ECF No. 66 (tabulating U.S. 

producer shares of flat-packed and boxed mattresses in 2019). Although the table 

treated the four producers separately and the Commission combined them to make 

its finding, the Commission “indicat[ed] in the corresponding footnote (n. 156) that 

‘although [boxed mattress] producers Comfort and Elite completed separate 

domestic producers’ questionnaire responses, Tempur Sealy acquired Comfort in 
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2018 and Leggett & Platt acquired Elite in 2019.’” Def.’s Supp. Br. at 3–4, ECF No. 

79; see also id. at 38 n.156, J.A. at 124,080. The Commission explained that it 

included this footnote “specifically to inform how it had tabulated the data and to 

provide its reasoning” and that “it was a factually accurate finding, which 

reasonably accounted for company acquisitions[.]” Def.’s Supp. Br. at 4, ECF No. 

79. 

The ITC next addressed the standard for harmless error. It cited case law in 

support of its argument that errors are harmless where, even including the error, 

substantial evidence supports the Commission’s determination. Id. at 4–5 (citing 

U.S. Steel Grp. v. United States, 96 F.3d 1352, 1363–65 (Fed. Cir. 1996) for the 

proposition that errors are harmless where other evidence, taken as a whole, was 

sufficient to support the conclusion). The Commission argued that substantial 

evidence still supports its material injury finding because it defined a single 

domestic like product that encompassed all mattresses within the scope of its 

investigation, which CVB did not challenge. Id. at 5–6. Because the Commission 

analyzed the domestic industry as a whole, it was not legally required to analyze 

different segments of the domestic industry and assess the impact to each 

independently. Id. In a footnote, the Commission also asserted that, even if it 

treated Elite and Comfort — the two boxed mattress producers that merged with 

flat-packed mattress producers — separately, “there would still be the same 12 

domestic producers that produced both [flat-packed] and [boxed mattresses] in 
Court No. 1:21-cv-00288 (SAV) Page 18 

2019, accounting for a smaller but not insignificant portion of U.S. [boxed mattress] 

production . . . that year.” Id. at 4–5, n.6. The Commission concluded by once again 

noting that it 

addressed [CVB’s] arguments with respect to the performance of 

[boxed mattress] producers and found that subject imports had an 

impact on this subset of the domestic industry, negatively affecting 

their capacity utilization rates, sales revenues and operating and net 

income, and returns on investments as subject imports surged into the 

U.S. market and displaced domestically produced [boxed mattresses] 

and significantly depressed prices for this product. 

Id. at 9. 

The Defendant-Intervenors’ supplemental brief endorsed the Commission’s 

brief. See Def.-Ints.’ Supp. Br. at 1–2, ECF No. 81. Defendant-Intervenors 

similarly argued that the Commission’s statistical summary “while inartful, is 

accurate and does not constitute an error”; and even if the Court were to find that 

the Commission was in error, such error was harmless. Id. The Intervenors 

acknowledged that the Commission changed its “tabulation methodology” when 

summarizing Table III-1 but claimed that “[i]n footnote 156 on page 38 of its Views, 

the Commission attempted to alert the reader” of the change. Id. at 4. Although 

“this footnote might have been phrased more artfully . . . it still shows that the 

Commission did try to be transparent about this limited instance where it combined 

U.S. producer data due to the Leggett & Platt/Elite and Tempur Sealy/Comfort 

transactions.” Id. at 4–5. Further, the table “only presented data for 2019 and 
Court No. 1:21-cv-00288 (SAV) Page 19 

given that the transactions had occurred in mid-2018 and January 2019, it was not 

unreasonable to point to combined data in this instance.” Id. at 5. 

Invoking the harmless error standard, Defendant-Intervenors assert that 

“Courts have previously affirmed Commission determinations containing an error, 

where the outcome would have been the same because the error did not detract from 

the substantial evidence as a whole supporting the Commission’s decision.” Id. at 

8–9. They claim that “the path of the Commission’s decision here is discernible 

even without” the misleading statistical summary because the Commission’s Views 

“set forth all issues material to its conclusion[.]” Id. at 9. Defendant-Intervenors 

contend that, even if the Commission’s creative statistics detract from its 

conclusion, the Commission’s decision was “otherwise reasonable and supported by 

the record as a whole.” Id. at 10. 

CVB had the last word. Its brief argued that (1) the Commission was in 

error; (2) the error was not harmless because it prejudiced CVB and because, after 

correcting the error, the Commission’s material injury determination is not 

supported by substantial evidence; and (3) the final pages of the Final 

Determination were not supported by substantial evidence and therefore do not 

function as an alternative holding. Pl.’s Supp. Br. at 1–2, ECF No. 84. CVB first 

offered its standard of harm, writing without citation to authority that “[e]rror is 

not harmless if the Commission cannot say for certain that its ultimate injury 

finding would not have changed in light of the error.” Id. at 4. CVB then explained 
Court No. 1:21-cv-00288 (SAV) Page 20 

how it believed it had been harmed by the Commission’s misleading statistical 

summary, as “the error contributed to the Commission’s refusal to meaningfully 

engage with CVB’s market polarization argument and to evaluate properly the 

conditions of competition in the mattress industry.” Id. at 3. 

CVB rejected the Commission’s and Defendant-Intervenors’ assertion that 

the Commission did not need to address CVB’s attenuated competition argument, 

claiming that the law requires the Commission to evaluate “all relevant economic 

factors within the context of the business cycle and conditions of competition that 

are distinctive to the affected industry.” Id. at 3 (citing 19 U.S.C. § 1677(7)(C)(iii)). 

CVB wrote that “the Commission must comply with the statute no matter how a 

respondent allegedly structures its arguments.” Id. Plaintiff acknowledged that 

there may be situations where the Commission is not required to engage in a 

market segmentation analysis but argued that § 1677(7)(C)(iii) made it necessary 

here. Id. at 5. It also criticized the Commission’s and Defendant-Intervenors’ 

attempts to “justify the Commission’s mathematical legerdemain” and argued that 

“the record clearly supports a finding of market polarization when the error is 

removed.” Id. at 6. CVB invoked the Commission’s purchaser data summary for 

support. Id. 

CVB closed by arguing that the Views’ final pages could not function as an 

“alternative holding” because they were not supported by substantial evidence. See 

id. at 7. Plaintiff asserted that the domestic boxed mattress industry suffered no 
Court No. 1:21-cv-00288 (SAV) Page 21 

injury, noting that the domestic industry gained market share during the period of 

investigation. See id. It quoted the Commission’s admission that “‘domestic 

producers of [boxed mattresses] improved their performance by most measures 

during the period of investigation.’” Id. at 8 (quoting Def.’s Resp. at 45, ECF No. 

51). CVB cited cases where this Court sustained the Commission’s finding of no 

material injury when the domestic industry’s performance improved during the 

period of investigation. Id. at 8–9. It faulted the Commission for “merely 

assum[ing] that the cause of the unused capacity was subject imports, and not some 

other cause such as raw material shortages . . . or an inability to produce [boxed 

mattresses] to the same standard as importing producers.” Id. at 9 (citing to record 

evidence that seven importers indicated that subject imports were superior in 

quality). 

With briefing and argument concluded, the Court considers the claims of the 

parties.

JURISDICTION AND STANDARD OF REVIEW 

This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1581(c). 

The Court must assess the factual and legal findings underpinning the 

Commission’s determinations and “hold unlawful any determination, finding or 

conclusion . . . unsupported by substantial evidence on the record, or otherwise not 

in accordance with law.” 19 USC § 1516a(b)(1)(B)(i). Substantial evidence is “such 

relevant evidence as a reasonable mind might accept as adequate to support a 
Court No. 1:21-cv-00288 (SAV) Page 22 

conclusion.” Consol. Edison Co. of New York v. NLRB, 305 U.S. 197, 229 (1938). It 

must be “more than a scintilla, and must do more than create a suspicion of the 

existence of the fact to be established.” NLRB v. Columbian Enameling & 

Stamping Co., 306 U.S. 292, 300 (1939). However, “the possibility of drawing two 

inconsistent conclusions from the evidence does not prevent an administrative 

agency’s finding from being supported by substantial evidence.” Matsushita Elec. 

Indus. Co. v. United States, 750 F.2d 927, 933 (Fed. Cir. 1984). 

This Court’s review of the Commission’s determination is limited to the 

administrative record that was before the agency. 19 U.S.C. § 1516a(b)(2)(A). To 

determine if substantial evidence exists, the Court considers “the record as a whole, 

including evidence that supports as well as evidence that ‘fairly detracts from the 

substantiality of the evidence.’” Nippon Steel Corp. v. United States, 337 F.3d 1373, 

1379 (Fed. Cir. 2003) (quoting Atlantic Sugar, Ltd. v. United States, 744 F.2d 1556, 

1562 (Fed. Cir. 1984)). The Court assesses whether the Commission succeeded in 

putting forward a reasoned explanation by “mak[ing] the necessary findings and 

hav[ing] an adequate evidentiary basis for its findings.” In re NuVasive, Inc., 842 

F.3d 1376, 1382 (Fed. Cir. 2016) (internal citations omitted). To meet this 

threshold, the Commission must not only “examine the relevant data and articulate 

a satisfactory explanation for its action,” it must also provide “a rational connection 

between the facts found and the choice made.” Id. 
Court No. 1:21-cv-00288 (SAV) Page 23 

DISCUSSION 

At the heart of CVB’s argument lies the claim that the Commission 

unreasonably determined that boxed mattresses and flat-packed mattresses are not 

a segmented market. See Pl.’s Br. at 2–4, ECF No. 48 (summarizing argument as 

containing four distinct claims, but with the first, second, and fourth claims being 

dependent on distinguishing data about boxed and flat-packed mattresses). CVB 

argues that boxed mattresses experienced most of the competition from subject 

imports, but the domestic boxed mattress industry thrived during the period of 

investigation. Id. at 9. In contrast, the domestic flat-packed mattress industry 

contracted; but there were relatively few imports of flat-packed mattresses. Id. 

CVB therefore argues the downturn cannot be attributed to subject imports but 

instead to a marketplace shift characterized by increased boxed mattress demand 

and declining flat-packed mattress demand. Id. CVB believes that the Commission 

unreasonably found that there was not a segmented market between boxed and flatpacked mattresses. Id. at 8–17. The Commission responds that it fully considered 

and analyzed the data, and CVB’s primary objection is simply that the Commission 

came to conclusions opposite CVB’s preference. See generally Def.’s Resp. at 17–26, 

ECF No. 51. 

The Court first analyzes three sections of the Commission’s Views that were 

not supported by substantial evidence: (1) the discussion of specialization in the 

industry, (2) the characterization of mattress purchasers’ specialization, and (3) the 
Court No. 1:21-cv-00288 (SAV) Page 24 

analysis of purchaser questionnaires. Final Determination at 38, 43–44, J.A. at 

124,080, 124,085–86, ECF No. 66. The Court then turns to the question of harmless 

error. The Court finds that the Commission’s misleading statistical summaries are 

harmless error. Because the Court holds that there remains sufficient reasoning in 

the Commission’s Views to uphold its injury determination as supported by 

substantial evidence, the determination is SUSTAINED.2 

I. The Commission’s Errors 

The Commission’s Views contain errors that center around a common theme. 

For much of its Views, the Commission employed mathematical obfuscation and 

statistical chicanery to make the mattress industry appear less segmented than it 

is. When it addressed producer specialization, the Commission tried to make 

producers appear less specialized. To do this, it treated two pairs of companies that 

merged during the period of investigation as two single companies that produced 

both boxed and flat-packed mattresses, rather than as four companies that each 

2 The determination is sustained except with respect to Malaysia. Plaintiff CVB does not 

possess standing to challenge the Commission’s determination with respect to Malaysia. 

Def.’s Resp. at 1, ECF No. 51. But see Oral Arg. Tr. at 55:5–16, ECF No. 75 (preserving 

standing argument for appeal). It is well-established that each subject country is its own, 

unique determination, even when the Commission cumulates imports from multiple 

countries for its injury determination. See, e.g., Shandong TTCA Biochemistry Co. v. 

United States, 34 CIT 582, 589–90 (2010) (collecting cases). A party requires standing to 

challenge the determination for each country. Because CVB conceded there is no evidence 

it imports mattresses from Malaysia, it cannot show any injury from the Malaysia 

determination and therefore lacks standing to challenge the Commission’s determination 

with respect to Malaysia. Oral Arg. Tr. at 55:5–16, ECF No. 75; see also TransUnion LLC 

v. Ramirez, 141 S. Ct. 2190, 2200 (2021) (“To have Article III standing to sue in federal 

court, plaintiffs must demonstrate, among other things, that they suffered a concrete harm. 

No concrete harm, no standing.”). 
Court No. 1:21-cv-00288 (SAV) Page 25 

specialized in one or the other. To make purchasers seem less specialized, the 

Commission reported that eleven of nineteen purchasers bought both boxed and 

flat-packed mattresses but conveniently omitted that almost all of those eleven 

purchased far more of one packaging type than the other. Finally, the Commission 

omitted important context from its description of purchaser surveys, giving the 

impression that wholesale purchasers did not care about packaging type. Each 

error demonstrates the Commission’s unfortunate attempt to paint a perfect picture 

of an unsegmented market. 

A. Producer Specialization

The Commission’s first error is its analysis of producer specialization. 

During the period of investigation, two pairs of domestic producers merged. Final 

Determination at III-9–10, J.A. at 124,201–02, ECF No. 66. Throughout the Views, 

the Commission treated those domestic producers as four separate companies. 

However, in its analysis of producer specialization, it treated the producers that 

merged as two companies instead of four; and it gave no explanation for making the 

change. The reason is self-evident. It was more convenient to treat them as two 

companies because doing so gave the impression that more domestic producers 

manufacture both boxed and flat-packed mattresses. 

The Commission summarized its findings regarding producer specialization: 

Although two of the three largest domestic producers of 

[boxed mattresses] produced no [flat-packed mattresses], 

the three largest producers of [flat-packed mattresses] 

also produced [boxed mattresses]. Nearly a quarter (12) 
Court No. 1:21-cv-00288 (SAV) Page 26 

of responding domestic producers produced both [flatpacked mattresses] and [boxed mattresses] in 2019, with 

these producers accounting for [a majority] of [boxed 

mattress] production that year, and nearly half (21) of all 

responding producers reported production of [boxed 

mattresses]. 

Id. at 38, J.A. at 124,080, (internal citations omitted). To support its claims, the 

Commission relies primarily on Table III-1. Id. Table III-1 is a chart that lists for 

each U.S. producer in 2019 its share of total mattress production, boxed mattress 

production, and flat-packed mattress production. Id. at III-3–6, J.A. at 124,195–98. 

First, the Commission states that two of the three largest domestic producers 

of boxed mattresses produced no flat-packed mattresses. Id. at 38, J.A. at 124,080. 

According to the table, the three largest domestic producers of boxed mattresses are 

Elite, Innocor, and Purple, none of which produce flat-packed mattresses. Id. at III3–4, J.A. at 124,195–96. Looking at the Commission’s chart, it therefore appears 

that all three of the largest domestic boxed mattress producers manufactured no 

flat-packed mattresses in 2019. However, Leggett & Platt — a flat-packed mattress 

producer — acquired Elite in a deal completed in January 2019. Id. at 38 n.156, 

J.A. at 124,080. The Commission apparently chose to treat them as one entity in 

2019, allowing the Commission to say that one — rather than zero — of the three 

largest domestic producers of boxed mattresses also produced flat-packed 

mattresses. The Commission did not explain its decision to treat the two companies 

as one entity, even though Elite’s data was reported separately in the Commission’s 
Court No. 1:21-cv-00288 (SAV) Page 27 

own charts and Elite continued to operate separately.3 See id. at III-3–4, III-9–10, 

J.A. at 124,195–96, 124,201–02. It also does not explain why it treated Elite as a 

separate entity everywhere else in the Views. 

The Commission next states that the twelve producers that produced both 

kinds of mattresses represented a majority of domestic boxed mattress production 

in 2019. Id. at 38, J.A. at 124,080. But when the Court manually summed the 

data, it sums to less than a quarter, as presented by the Commission in the chart. 

Id. at III-3–6, J.A. at 124,195–98. The only way to reach a majority of production is 

to include Comfort and Elite with their respective acquirers, Tempur Sealy and 

Leggett & Platt. Once again, the Commission elsewhere treats these entities as 

separate. It repeatedly references fifty-three companies, not fifty-one; the 

acquisitions were not coextensive with the period of investigation; and the 

Commission treats Comfort and Elite as separate entities from Tempur Sealy and 

Leggett & Platt at almost every other point in its determination. See, e.g., id. at 37–

39, J.A. at 124,079–81. Compare id. at 36, n.156, J.A. at 124,080 (treating Comfort 

and Elite as “domestic producers [that] produced both [flat-packed] and [boxed] 

mattresses in 2019” to create a useful statistic), with id. at 69, n.305, J.A. at 

124,111 (listing “domestic producers that produced [boxed mattresses] but no [flatpacked mattresses] in 2019” and including both Comfort and Elite). No explanation 

for the statistical gimmick appears. 

3 The same is true of the Comfort/Tempur Sealy acquisition. See Final Determination at 

III-3–6, III-9–10, J.A. at 124,195–98, 124,201–02, ECF No. 66. 
Court No. 1:21-cv-00288 (SAV) Page 28 

Second, the Commission found that the three largest domestic producers of 

flat-packed mattresses also produced boxed mattresses. Id. at 38, J.A. at 124,080. 

The Commission is correct; it is strictly true that the three largest domestic 

producers of flat-packed mattresses also produced boxed mattresses. However, this 

fails to tell the whole story. Although the three companies produced both boxed and 

flat-packed mattresses, each produced multiples more flat-packed mattresses. The 

three largest domestic flat-packed mattress producers are Serta Simmons, Tempur 

Sealy, and Corsicana. Each company’s market share in flat-packed mattresses is at 

least fifteen times greater than its share of the domestic boxed mattress market. 

Id. at III-3–6, J.A. at 124,195–98. 

The relative shares of boxed and flat-packed mattresses in domestic 

production are also important. The Commission reported that in 2019 flat-packed 

mattresses were the substantial majority of domestic production, and boxed 

mattresses were less than a quarter of domestic production. Id. at III-19, J.A. at 

124,211. Correcting for this domestic production ratio, for every one thousand flatpacked mattresses Serta Simmons produced in 2019, it produced only twelve boxed 

mattresses; for every one thousand flat-packed mattresses Tempur Sealy produced, 

it produced seventeen boxed mattresses; for every one thousand flat-packed 

mattresses Corsicana produced, it produced sixteen boxed mattresses. The 

Commission’s statement that the three largest domestic producers of flat-packed 

mattresses also produced boxed mattresses obscured the fact that their boxed 
Court No. 1:21-cv-00288 (SAV) Page 29 

mattress production was negligible. The Commission is obligated to draw from the 

evidence all inferences the evidence reasonably demands, not just those that are 

convenient. See Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 378 

(1998) (The Commission must draw “all those inferences that the evidence fairly 

demands.”). The Commission failed to do so here. 

Third, the Commission stated, “Nearly a quarter (12) of responding domestic 

producers produced both [flat-packed mattresses] and [boxed mattresses] in 2019, 

with these producers accounting for [a majority] of [boxed mattress] production that 

year[.]” Final Determination at 38, J.A. at 124,080, ECF No. 66. Of the twelve 

companies that produced both mattress types in 2019, five produced virtually none 

of one kind. Id. at III-3–6 124,195–98 (providing data that Ashley, Estee, Jeffco, 

Old West, and Salt Lake each produced far less than one percent of U.S. production 

of one kind of mattress). Of the remaining seven domestic manufacturers, four have 

stark production differences: Corsicana produced more of one type of mattress than 

the other by a ratio of 63-to-1; Kolcraft had a ratio of 74-to-1; Serta Simmons had a 

ratio of 83-to-1; and Tempur Sealy had a ratio of 60-to-1. Id. Of the remaining 

three companies, Solstice had a ratio of nearly 11-to-1; Leggett & Platt, of nearly 5-

to-1; and the lone balanced producer, Carpenter, had a nearly 1-to-1 ratio.4 Id. 

4 Some producers manufactured more flat-packed mattresses, and others produced more 

boxed mattresses. These ratios represent either flat-packed-to-boxed or boxed-to-flatpacked, depending on what packaging type the producer predominantly made. 
Court No. 1:21-cv-00288 (SAV) Page 30 

Again, the Commission failed to provide necessary context by drawing all those 

inferences fairly demanded by the evidence. 

The Commission must fairly analyze the data. See Allentown Mack Sales & 

Serv., 522 U.S. at 378. Here, the evidence demanded acknowledgement that nearly 

every producer is highly specialized. The Commission’s failure to do so was not 

merely “inartful.” It misread the data in question. See Def.-Ints.’ Supp. Br. at 1, 

ECF No. 81. The law charges the Commission with explaining how it views the 

evidence before it. When it changes methodologies in analyzing the data, the 

Commission must acknowledge and justify any inconsistent treatment. See 

Wheatland Tube Co. v. United States, 161 F.3d 1365, 1369–70 (Fed. Cir. 1998) 

(reviewing courts look for “a reasoned analysis or explanation” and can only affirm 

when the agency’s path is “reasonably discernible”). Because the Commission 

opportunistically combined production figures only when it found it useful to avoid 

CVB’s market segmentation objections, the Commission has failed to support its 

findings on producer specialization with substantial evidence. 

B. Mattress Purchasers’ Specialization 

The Commission’s second error is its analysis of purchaser specialization. As 

with producer specialization, the Commission ignored or failed to provide important 

context in its analysis of purchaser specialization. This gave the false impression 

that purchasers are indifferent about mattress packaging. Not so. Out of nineteen 

purchasers, only three purchased flat-packed and boxed mattresses in numbers 
Court No. 1:21-cv-00288 (SAV) Page 31 

approaching parity. The other sixteen purchased far more of one packaging type 

than the other, and eight of the nineteen (42%) exclusively purchased one packaging 

type. The Commission papered over these statistics to make purchasers appear less 

specialized and therefore make the market appear less segmented. 

The Commission reported that “[c]onsumer indifference towards mattress 

packaging is reflected in purchasing behavior at the wholesale level” in part 

because “[e]leven of [nineteen] responding purchasers reported purchasing and/or 

importing both [boxed and flat-packed mattresses].” Final Determination at 43, 

J.A. at 124,085, ECF No. 66. The Commission cites its purchaser questionnaires 

but does not provide a detailed analysis of their responses. The data demonstrate 

significant bifurcation in wholesale purchasing decisions. Eight of the nineteen 

purchasers buy only one kind of mattress packaging; and eight of the remaining 

eleven wholesale mattress purchasers are highly specialized. Wayfair purchases 

one type of mattress more than another at nearly a 10-to-1 ratio; Amazon at a 15-to1 ratio; Home Depot at a 5-to-1 ratio; Nebraska Furniture Mart at a 12-to-1 ratio; 

Rooms to Go at a 50-to-1 ratio; Target at a 13-to-1 ratio; Transform at a 62-to-1 

ratio; and Overstock at a 6.5-to1 ratio. J.A. at 102,831, ECF No. 66 (Wayfair); id.

at 103,156 (Amazon); id. at 103,086 (Home Depot); id. at 103,051 (Rooms to Go); id.

at 102,935 (Target); id. at 102,865 (Transform); J.A. at 108,419, ECF No. 65 
Court No. 1:21-cv-00288 (SAV) Page 32 

(Nebraska Furniture Mart); J.A. at 102,977, ECF No. 73 (Overstock).5 Only Berrios 

and Bob’s Discount Furniture had a roughly 1-to-1 ratio with Costco at about 2-to-1. 

J.A. at 103,268, ECF No. 73 (Berrios); id. at 103,122 (Costco); id. at 111,476 (Bob’s 

Discount). 

The Commission must fairly analyze the data and draw all inferences the 

data reasonably demands. See Allentown Mack Sales & Serv., 522 U.S. at 378. It is 

true that eleven of nineteen purchasers buy both boxed and flat-packed mattresses, 

but the data once again show this statistic is misleading. Only three of nineteen 

wholesale purchasers buy boxed and flat-packed mattresses in similar quantities. 

Sixteen of nineteen wholesale purchasers either purchase only one kind of mattress 

packaging or purchase overwhelmingly one kind of packaging. No reasonable 

person could review this data and determine that it shows wholesale purchasers are 

“indifferent” to packaging. See Goss Graphics Sys., Inc. v. United States, 22 CIT 

983, 1004 (1998), aff’d, 216 F.3d 1357 (Fed. Cir. 2000) (The Commission has 

“discretion to make reasonable interpretations of the evidence.”) (emphasis added). 

Most purchasers strongly favor one packaging type over the other. The Commission 

should have acknowledged this data and provided its views. Its failure to do so is 

error. See Allentown Mack Sales & Serv., Inc., 522 U.S. at 378. 

 

5 These ratios represent either flat-packed-to-boxed or boxed-to-flat-packed, depending on 

what packaging type the purchaser predominantly bought.
Court No. 1:21-cv-00288 (SAV) Page 33 

C. Purchaser Survey Rankings

The Commission’s third error is found in its analysis of purchaser surveys. 

Again, the Commission ignored or failed to provide important context that 

undermined the Commission’s conclusion that packaging type is irrelevant to 

purchasers. The Commission wrote that “[a]lthough 11 purchasers reported that 

packaging was very important to their purchasing decisions, only two purchasers 

ranked packaging among the top three factors driving their purchasing decisions, 

consistent with the large number of purchasers reporting purchases of both [boxed 

and flat-packed mattresses].” Final Determination at 44, J.A. at 124,086, ECF No. 

66. In a footnote, the Commission added that “[a]lthough responding purchasers 

were free to rank ‘Packaging (i.e., [boxed] or flat packed mattresses)’ among their 

top three purchasing factors, as among the purchasing factors enumerated in the 

purchasers’ questionnaire, only two did so.” Id. at 44, n.185, J.A. at 124,086. 

The Commission’s statements imply that the question involved ranking from 

a pre-selected list. It did not. The question merely provided a blank space and 

some examples: “Major purchasing factors.Please list, in order of their importance, 

the main factors your firm considers in deciding from whom to purchase mattresses 

(examples include availability, extension of credit, contracts, price, quality, range of 

supplier’s product line, traditional supplier, etc.).” Despite packaging not being 

listed as a factor for this question, many wholesale purchasers’ questionnaire 

responses told a more nuanced story about what drove their decisions. See, e.g., 
Court No. 1:21-cv-00288 (SAV) Page 34 

U.S. Purchasers’ Questionnaire of Bob’s Discount Furniture, J.A. at 111,481, 

111,490, ECF No. 66 (listing three factors other than packaging but earlier stating 

that “[w]e expect the industry to continue towards [boxed mattresses] due to 

customer preference and convenience/portability of the product”); U.S. Purchasers’ 

Questionnaire of Burlington, J.A. at 102,902, 102,915, ECF No. 65 (listing three 

non-packaging factors as most important but purchasing zero boxed mattresses); 

U.S. Purchasers’ Questionnaire of American Signature, J.A. at 103,013, 103,028, 

ECF No. 66 (listing three non-packaging factors as most important but purchasing 

zero flat-packed mattresses); U.S. Purchasers’ Questionnaire of Rooms to Go, J.A. at 

103,051, 103,065 (listing “[p]roduct features and specifications” as third most 

important and purchasing a 50-to-1 ratio of flat-packed-to-boxed mattresses). 

Although it is not the Court’s domain to reweigh the evidence, it is the 

Court’s domain to require that the Commission weigh all the evidence in the record 

— not just the evidence that supports its decision. See Nippon Steel Corp., 337 F.3d 

at 1379 (requiring examination of “the record as a whole, including evidence that 

supports as well as evidence that fairly detracts from the substantiality of the 

evidence”) (internal quotation omitted). The manufacturers’ data combined with 

the wholesale purchasers’ data tell a much more complicated story than the 

Commission’s initial line that packaging is irrelevant. It was error to not examine 

this data on the record and explain what it meant for the Commission’s ultimate 

decision. See In re NuVasive, Inc., 842 F.3d at 1382 (requiring the ITC to “examine 
Court No. 1:21-cv-00288 (SAV) Page 35 

the relevant data and articulate a satisfactory explanation for its action[,]” so that it 

provides “a rational connection between the facts found and the choice made”). The 

only thing the Commission has proven is the truth of the adage that “There are 

three kinds of lies: Lies, Damned Lies, and Statistics.” Mark Twain, Chapters from 

My Autobiography – XX, NORTH AMERICAN REVIEW 465, 471 (July 5, 1907).6

II. Harmless Error

The Commission need not have gone to such lengths to avoid addressing the 

segmentation in the U.S. mattress market. When the Commission finally engaged 

with CVB’s arguments and addressed the domestic boxed mattress industry as a 

distinct segment, the Commission found injury to that segment. These findings are 

supported by substantial evidence. Contrary to CVB’s assertions, the Commission 

did not need to go further and conduct a formal market segmentation analysis. 

Because, even with the Commission’s errors, there is still substantial evidence to 

support the Commission’s ultimate injury finding, the Commission’s errors were 

harmless. It is on this basis that the Court will sustain the Commission’s Final 

Determination. 

A. Legal Standard

The principle of harmless error applies to judicial review of agency action. 

See Vermont Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 

519, 558 (1978) (“Administrative decisions should be set aside . . . only for 

6 Twain attributes this adage to British Prime Minister Benjamin Disraeli. 
Court No. 1:21-cv-00288 (SAV) Page 36 

substantial procedural or substantive reasons[.]”); Intercargo Ins. Co. v. United 

States, 83 F.3d 391, 394 (Fed. Cir. 1996) (“It is well settled that principles of 

harmless error apply to the review of agency proceedings.”). Injury determinations 

by the Commission are no different. See, e.g., CP Kelco US, Inc. v. United States, 38 

CIT 1511, 1529–31 (2014) (applying the principle of harmless error to an injury 

determination by the Commission), aff'd, 623 F. App’x 1012 (Fed. Cir. 2015). 

The touchstone of the harmless error inquiry is prejudice. If the errors did 

not change the ultimate result of the agency action, they are harmless. Put another 

way, if the Commission’s injury determination is still supported by substantial 

evidence — even with the errors — the errors are harmless; and the Commission’s 

determination may be sustained. See Belton Indus., Inc. v. United States, 6 F.3d 

756, 761 (Fed. Cir. 1993) (“Commerce’s violation did not prejudice appellees. 

Accordingly, Commerce’s violation was harmless error.”); CP Kelco US, 38 CIT at 

1529 (finding any potential error harmless because “[the Commission’s] ultimate 

injury finding would not have changed”). The Court thus looks past the 

Commission’s clumsy efforts to dodge CVB’s arguments and now examines where 

the Commission squarely addressed CVB’s objections regarding harm to domestic 

boxed mattress manufacturers. 

B. The Commission’s Errors Were Harmless

In the final pages of its Views, the Commission found that — even when 

examining only domestic producers who exclusively manufactured boxed mattresses 
Court No. 1:21-cv-00288 (SAV) Page 37 

— subject imports injured the domestic industry. The Commission forthrightly 

acknowledged that domestic boxed mattress manufacturers “improved their 

performance” during the period of investigation, but it found that these 

manufacturers could have performed even better if not for the subject imports. 

Final Determination at 69–73, J.A. at 124,111–114, ECF No. 66. In support, the 

Commission pointed to the low capacity utilization of domestic boxed mattress 

factories, which it attributed to the subject imports. Id. Substantial evidence 

supports this portion of the Commission’s Views, and it is enough to sustain the 

Commission’s ultimate injury finding. See 19 U.S.C. § 1677(7)(B) (requiring 

findings as to volume, price effects, and impact to sustain a material injury 

determination). Accordingly, the final section of the Commission’s analysis renders 

its earlier errors harmless. 

When the Commission finally turned to addressing CVB’s arguments and 

examined domestic producers of boxed mattresses, it found subject imports injured 

those producers. Final Determination at 69–70, J.A. at 124,111–112, ECF No. 66. 

The Commission observed that these producers improved their performance during 

the period of investigation. Id. This improvement was expected because boxed 

mattress imports from China decreased dramatically in the wake of an antidumping 

order, and the domestic industry invested in increasing boxed mattress production 

capacity. Id. at 69–72, J.A. at 124,111–14. However, the Commission found that, 

but for the subject imports “displac[ing] domestic industry shipments . . . and 
Court No. 1:21-cv-00288 (SAV) Page 38 

depress[ing] domestic like product prices to a significant degree,” domestic boxed 

mattress producers would have improved their performance even more. Id. at 70, 

J.A. at 124,112. 

In particular, the Commission pointed to domestic manufacturers’ excess 

production capacity at a time when the market for boxed mattresses grew. Id. at 

70–71, J.A. at 124,112–113. Capacity utilization “remained low over the [period of 

investigation]” and decreased from 2019 to 2020. Id. at 70, J.A. at 124,112. 

Although domestic producers of boxed mattresses grew their share of U.S. mattress 

consumption, importers saw their share of the market grow more — even as 

domestic producers had unused capacity. Id. at 71, J.A. at 124,113. 

The Commission concluded that low-priced imports caused this excess 

domestic manufacturing capacity. Id. at 70–72, J.A. at 124,112–114. It also 

rejected arguments that factors other than price explained the low utilization of 

domestic manufacturing plants. Id. at 70, n.308, J.A. at 124,112. The Commission 

found a “moderately high degree of substitutability” between domestically produced 

mattresses and imports based on reports from domestic producers, importers, and 

purchasers. Id. at 28–29, J.A. at 124,070–71. The majority of responding 

purchasers said domestic boxed mattresses and imports were similar “in terms of 

product range, quality, and reliability of supply,” undercutting any argument that a 

deficiency in one of those factors explained imports’ advantage. Id. at 70, n.308, 

J.A. at 124,112. The Commission also noted domestic producers’ low rate of 
Court No. 1:21-cv-00288 (SAV) Page 39 

warranty claims, indicating the quality of their products. Id. These findings 

undermine the argument that low quality, and not subject imports, led to low 

capacity utilization. Compare Pl.’s Supp. Br. at 9, ECF No. 84 (“[T]he Commission 

merely assumes that the cause of the unused capacity was subject imports, and not 

some other cause such as . . . an inability to produce [boxed mattresses] to the same 

standard as importing producers.”), with Final Determination at 70, n.308, J.A. at 

124,112, ECF No. 66 (finding that “[n]on-price differences cannot explain the . . . 

low rates of capacity utilization because a majority of responding purchasers 

reported that domestically produced mattresses were comparable to subject imports 

in . . . quality” and “domestic producers of [boxed mattresses] experienced low 

warranty return rates”). 

When comparing the use of available manufacturing capacity between flatpacked mattress manufacturers and boxed mattress manufacturers, the 

Commission determined that boxed mattress manufacturers had more unused 

manufacturing capacity. Final Determination at 70, n.308, J.A. at 124,112, ECF 

No. 66. This discredits raw material shortages as a cause of the low utilization 

because flat-packed and boxed mattresses use similar inputs so that any raw 

material shortage should have affected both similarly. Compare Pl.’s Supp. Br. at 9, 

ECF No. 84 (“[T]he Commission merely assumes that the cause of the unused 

capacity was subject imports, and not some other cause such as raw material 

shortages[.]”), with Final Determination at 70, n.308, J.A. at 124,112, ECF No. 66 
Court No. 1:21-cv-00288 (SAV) Page 40 

(“While we recognize that the domestic [boxed mattress] producers’ reduced rate of 

capacity utilization in interim 2020 partly reflects raw material shortages, their 

capacity utilization rates remained low . . . relative to domestic [flat-packed 

mattress] producers . . . and there is no evidence that [boxed mattress] producers 

were incapable of utilizing more of their reported capacity[.]”). It also undercuts 

CVB’s argument that examining domestic boxed mattress manufacturers separately 

would lead to a determination of no injury. See Pl.’s Supp. Br. at 1–2, ECF No. 84. 

At least for capacity utilization, treating domestic boxed mattress producers 

separately hurts rather than helps CVB. 

Plaintiff points to prior decisions of this Court affirming Commission 

determinations of no injury where the domestic industry grew during the period of 

investigation and suggests the same result should apply here. See Pl.’s Supp. Br. at 

7–8, ECF No. 84. Not so. That the Commission could have come to a different 

conclusion does not mean its conclusion here was unsupported by substantial 

evidence. See Vermont Yankee, 435 U.S. at 558 (administrative review is supposed 

to “insure a fully informed and well-considered decision, not necessarily a decision 

the judge[] . . . would have reached”). The standard of review the Court must apply 

is determinative. As the Supreme Court has explained, “[T]he possibility of 

drawing two inconsistent conclusions from the evidence does not prevent an 

administrative agency’s findings from being supported by substantial evidence.” 

Consolo v. Fed. Maritime Comm’n, 383 U.S. 607, 620 (1966). Further, the law 
Court No. 1:21-cv-00288 (SAV) Page 41 

prohibits the Commission from finding that there is no material injury to an 

industry “merely because . . . the performance of that industry has recently 

improved.” 19 U.S.C. § 1677(7)(J). The Commission can find injury to the domestic 

industry even when the domestic industry’s performance improved by some metrics 

over the course of the period of investigation. See, e.g., OCTAL Inc. v. United 

States, 539 F. Supp. 3d 1291, 1311–13 (CIT 2021) (affirming the Commission’s 

finding of injury despite an increase in profit for the domestic industry during the 

period of investigation when other factors, including capacity utilization, suggest 

injury). Indeed, § 1677(7)(C)(iii) directs the Commission to evaluate “all relevant 

economic factors” when conducting its impact analysis, including “actual and 

potential negative effects on. . . growth[.]” The statute allows the Commission to 

consider whether the domestic industry grew less than it otherwise would have. Cf. 

19 U.S.C. § 1677(7)(J) (“The Commission may not determine that there is no 

material injury or threat of material injury to an industry in the United States 

merely because that industry is profitable or because the performance of that 

industry has recently improved.”). 

For sixty-nine pages, the Commission dodges and ducks to avoid separately 

addressing domestic boxed mattress producers as CVB argued it should. The 

Commission buried important information and engaged in statistical chicanery. See 

Oral Arg. Tr. at 29:7–14, ECF No. 75 (describing the Commission’s actions as 

“mathematical legerdemain”). The Commission persisted with its strategy even 
Court No. 1:21-cv-00288 (SAV) Page 42 

after oral argument. See Def.’s Supp. Br. at 4–5, n.6, ECF No. 79 (only 

acknowledging in a footnote that the Commission’s disparate treatment of 

companies that merged during the period of investigation resulted in a threefold 

increase in the percentage of domestic mattresses produced by companies making 

both flat-packed and boxed mattresses); see also Pl.’s Supp. Br. at 3–4, ECF No. 84. 

None of this was necessary. In the final section of its Views, the Commission 

addressed CVB’s argument and reached the same ultimate finding of injury in a 

manner that satisfies the substantial evidence standard. Rather than attempting to 

paint a perfect picture, the Commission could have addressed CVB’s arguments 

directly from the beginning. Instead, the Commission prevails only because of the 

final section of its Views and the harmless error principle. Candor should be option 

one, not the last resort. 

C. The Commission Was Not Required to Conduct a Formal Market 

Segmentation Analysis 

In a final argument, CVB says that the Commission needed to conduct a 

“proper market segmentation analysis” to satisfy its statutory obligation to 

“evaluate all relevant economic factors described in this clause within the context of 

the business cycle and conditions of competition that are distinctive to the affected 

industry.” Pl.’s Supp. Br. at 5, ECF No. 84 (quoting 19 U.S.C. § 1677(7)(C)(iii)). 

CVB acknowledges the many cases holding the Commission need not conduct a 

formal market segmentation analysis but nonetheless argues that such an analysis 

was necessary here. See id.; Def.’s Supp. Br. at 6–7, ECF No. 79 (listing cases). 
Court No. 1:21-cv-00288 (SAV) Page 43 

Courts will defer to the Commission’s methodology when it is reasonable, even if a 

plaintiff presents a reasonable alternative. JMC Steel Grp. v. United States, 39 CIT 

649, 657 (2015) (“It is not enough for Plaintiffs simply to proffer an alternate 

methodology to that relied upon by the agency, even if that alternate methodology is 

reasonable and not inconsistent with the statute.”). Because the Commission 

reasonably found that subject imports injured the domestic industry, the 

Commission satisfied its statutory obligations. See supra Section II-B. 

Absent a statutory command, this Court cannot force a specific methodology 

onto the Commission. See Vermont Yankee, 435 U.S. at 546–47 (instructing courts 

not to mandate procedures beyond those explicitly required by Congress); Perez v. 

Mortg. Bankers Ass’n, 575 U.S. 92, 100 (2015) (citing Vermont Yankee and 

abrogating a doctrine that “imposes on agencies an obligation beyond” the 

Administrative Procedure Act’s requirements); U.S. Steel Grp., 96 F.3d at 1362 

(“This court has no independent authority to tell the Commission how to do its job. 

We can only direct the Commission to follow the dictates of its statutory mandate. 

So long as the Commission’s analysis does not violate any statute and is not 

otherwise arbitrary and capricious, the Commission may perform its duties in the 

way it believes most suitable.”). Instead, the Court asks whether the Commission’s 

methodology complied with the relevant statutes and finds substantial evidentiary 

support. See U.S. Steel Grp., 96 F.3d at 1362. Here, it did. 
Court No. 1:21-cv-00288 (SAV) Page 44 

No statute requires the Commission to conduct a market segmentation 

analysis. The Commission cites many cases holding that it was not obligated to 

conduct a market segmentation analysis. See Def.’s Supp. Br. at 6–7 (listing cases); 

see also Full Member Subgroup of Am. Inst. of Steel Constr., LLC v. United States, 

547 F. Supp. 3d 1211, 1233 (CIT 2021) (“[T]he Commission was not required to 

analyze the impact of subject imports on different segments of the domestic 

industry.”), aff’d, No. 2022-1176, 2023 WL 5761126 (Fed. Cir. Sept. 7, 2023); ITG 

Voma Corp. v. United States Int'l Trade Comm'n, 253 F. Supp. 3d 1339, 1354 (CIT 

2017) (rejecting an argument that the Commission was required to engage in a 

market segmentation analysis because “the law imposes no such requirement”), 

aff’d, 753 F. App’x 913 (Fed. Cir. 2019). CVB meanwhile cites no caselaw to support 

its stance. The statute instructs the Commission to “evaluate all relevant economic 

factors described in this clause within the context of the business cycle and 

conditions of competition that are distinctive to the affected industry.” 19 U.S.C. § 

1677(7)(C)(iii). This general instruction does not obligate the Commission to use 

any specific methodology. See United Steel, Paper & Forestry, Rubber, Mfg., Energy, 

Allied Indus. & Serv. Workers Int'l Union, AFL-CIO, CLC v. United States, 348 F. 

Supp. 3d 1328, 1333 (CIT 2018) (“The statute does not provide further guidance, 

giving the Commission discretion to assess the conditions of competition in a 

particular industry.”). Finding no support in caselaw or statutory text, the Court 

finds the Commission was not required to conduct a formal market segmentation 
Court No. 1:21-cv-00288 (SAV) Page 45 

analysis. The final section of its Views addressed imports’ effects on the domestic 

boxed mattress market segment separately and that suffices. 

CONCLUSION 

The Commission’s determinations are reviewed under the substantial 

evidence standard. 19 U.S.C. § 1516a(b)(1)(B)(i). Here, the Commission’s errors 

were needless but ultimately harmless. When the Commission stopped trying to 

dodge the issue and instead directly addressed harm to domestic boxed mattress 

manufacturers, it made the necessary findings to have its decision supported by 

substantial evidence. It is on this basis that the Commission’s final affirmative 

injury determination is SUSTAINED, and Plaintiff’s Motion for Judgment on the 

Agency Record is respectfully DENIED. 

 

 /s/ Stephen Alexander Vaden 

 Judge 

Dated: December 19, 2023 

 New York, New York