More Firms Counsel Importers to File Preemptive CIT Lawsuits for IEEPA Refunds
As importers everywhere await the Supreme Court's final decision on the fate of tariffs imposed under the International Emergency Economic Powers Act, more and more attorneys are counseling their clients to file preemptive lawsuits at the Court of International Trade to guarantee their right to a refund of the IEEPA tariffs.
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Ashley Akers, senior counsel at Holland & Knight, said during a webinar on Dec. 17, said she's encouraging clients to quickly file CIT cases to ensure the case is filed before both the entries at issue liquidate and the Supreme Court issues its decision.
While the trade court recently said it has the authority to reliquidate entries in the Section 1581(i) cases seeking refunds, "we need to assert the right in court before [the entries] actually liquidate" to provide the "best arguments later" when importers are asserting their refund rights, Akers said. "The quicker you go, the more protected you'll be.
Akers added that importers will want to file suit prior to the Supreme Court's decision, since, practically, there are over 300,000 importers who have paid IEEPA tariffs who may be seeking refunds. "You don't want to be the 299 thousandth plaintiff in this lawsuit," she said. "You want to assert your rights early, get on record, get your complaint to the court, have it assigned to the judges before it liquidates and before, hopefully, the Supreme Court" strikes down the tariffs.
Jennifer Diaz, the head of Diaz Trade Law, said she doesn't "see a reason for importers to not file." Diaz acknowledged the recent surge of new CIT cases seeking IEEPA tariff refunds, noting that the spike happened after Costco filed suit. The "import community kind of woke up and said, 'Wait a minute. They have more at stake than anybody else, and if they're filing, then maybe everybody else should,'" Diaz noted.
An email alert from the Zisser Group, a trade law firm, echoed these sentiments, recommending a "proactive preparedness approach" that involves filing a CIT lawsuit and submitting "protective protests" before CBP. While recovery is not guaranteed, "taking preparatory steps now allows companies to be organized and positioned should a favorable Supreme Court decision result in a surge of claims and heightened administrative and judicial activity," the alert said.