Georgia Gov. Brian Kemp made one last appeal this week to President Joe Biden to save the Korean-owned battery factory that has threatened to vacate a $2.6 billion investment in the state without presidential action.
As a 60-day review period comes to a close, Mr. Biden has until Sunday to overturn an International Trade Commission ruling barring SK Battery from importing the parts and materials needed for production at its Commerce, Ga., plant.
While the ruling included carveouts to serve existing orders from Volkswagen and Ford, SK has said that without Mr. Biden’s intervention, the plant would no longer be economical. In effect, the import ban would force the plant to shut down the plant before it even begins in earnest, the company said.
At stake are 2,600 jobs in the first phase alone, and SK recently revealed that it would ramp up to more than 6,000 on $5 billion of total investment, double what it had announced.
Mr. Kemp said a decision in support of Georgia jobs would make up for the economic blow from the loss of the Major League Baseball game, which the governor in a statement blamed on a “disinformation campaign” by the president over new Georgia voting laws.
“However, the president now has yet another decision before him that will make or break a $2.6 billion investment in our state. The jobs of at least 2,600 Georgians depend on President Biden’s upcoming decision on the ITC ruling, and I sincerely hope he will use his authority to do the right thing,” Mr. Kemp said.
Separately this week, the ITC ruled that SK had not infringed on LG Energy Solution’s patents, a decision seen as giving SK more leverage in the rivals ongoing legal spats. The two companies had both previously said they were open to a settlement in the initial case. Lawyers for SK point out that it was decided based on the idea that the company “spoliated evidence” by destroying documents — not on the intellectual property merits underlying the dispute.
If Mr. Biden decides not to act, SK could file lawsuit in federal court to get the import ban removed, or the companies could reach a settlement that would nullify it.
LG has already filed an infringement suit in U.S. district court, which former acting U.S. Attorney General Sally Yates, now working in her native Atlanta for the law firm of King & Spalding, says is the appropriate venue.
Ms. Yates, who was hired by SK to review the ITC ruling, agreed that the destruction of evidence is a serious charge, but the trade commission only had a blunt instrument for punishing SK — the import ban — which she said hurts myriad third parties while also harming the environmental goals of the U.S. That has been one of SK’s central arguments all along.
“The district court can consider both the trade secret and spoliation claims, and, if LG can prove its case, mete out a proportional remedy that awards LG damages and sanctions SK for spoliation. In contrast to the ITC exclusion order, this accountability would not undermine critical climate initiatives, kill thousands of clean-energy jobs, set back the Georgia economy, give China a leg-up in the EV supply chain, or create USMCA compliance problems for U.S. auto companies. The district court is the most appropriate forum to resolve these issues.”
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