Flurry of List 4 Lawsuits Breaks Weeks of Relative Inactivity in Section 301 Litigation
Just as the recent flood of Section 301 litigation had appeared to slow to a trickle, importers added more than two dozen more lawsuits last week to the multitude of cases currently before the Court of International Trade. But while the new complaints restate the same arguments made by thousands of other plaintiffs in the sprawling litigation, many of the new cases differ in that they seek to invalidate only List 4 tariffs, excluding List 3 from the requests.
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Attorney Elon Pollack of Stein Shostak filed most of the new cases. He said the spate of filings had more to do with the constraints of working during the COVID-19 pandemic than with a rush to meet a filing deadline. The Office of the U.S. Trade Representative notice announcing the List 4 tariffs was published Aug. 20, 2019, meaning importers have until August 2021 to file suit even under the most stringent interpretation of the filing deadline (see 2010200004), Pollack said.
Pollack’s small firm rushed to file more than 60 lawsuits in the run-up to the potential Sept. 21, 2020, deadline for List 3 challenges. Those were on behalf of importers of List 3 goods. “It was a crazy period of time,” he said. But with the deadline months out for List 4 challenges, Pollack and his small firm picked Nov. 19 to meet in the office to file on behalf of clients that only import List 4 goods, mostly textiles and apparel.
At about 15 to 20 minutes per case, Pollack and his colleagues were able to get through 23 lawsuits challenging List 4 tariffs. Pollack says he has one other lawsuit he’ll be filing remotely. Pollack’s colleague at Stein Shostak’s office in China, meanwhile, is looking to file on behalf of 80 to 90 clients that are non-resident importers based in the country.
Pollack said that, while most of his lawsuits were filed prior to the two-year anniversary of the tariff lists to play it safe, he has filed on behalf of clients past that deadline, and believes the two-year statute of limitations begins on the date duties were paid.
The lawsuits Pollack filed last week hew to the rationale now standard in the more than 3,500 Section 301 cases filed to date (see 2009110005). They say the rationale given for the List 4 tariffs -- China’s tariff retaliation -- was different from that given in the original Section 301 report issued by USTR. The lawsuits also say the tariffs were imposed past the one-year deadline for setting new tariffs following USTR’s report, and that USTR did not provide enough time for notice and comment nor adequately respond to comments when it issued the tariffs.
Pollack said his cases will be included under whatever test case and procedures CIT designates for the Section 301 litigation. His filings list the first-filed suit by HTMX Industries in the Section 301 litigation as a related case.
Another lawyer who represents clients in the litigation agrees. Given that they raise legal arguments, the cases will “likely fall within the expected large case management process,” he said. “Right now, as proposed by the government, that would include a stay of the majority of cases while one or more test cases proceed.”