Not All Is Resolved in Modifying Section 301 Injunction Order
Language disagreements remain between the Section 301 plaintiffs and the government in proposing modifications to the July 6 preliminary injunction (PI) order at the U.S. Court of International Trade that would eliminate the need for a Customs and Border Protection…
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repository for customs entries from China with Lists 3 and 4A tariff exposure, said the two sides in a joint status report (in Pacer) Friday. It was the last date proposed modifications in the PI order were due. DOJ wants the order worded to say that refunds of liquidated entries would be available only to importers of record who paid the tariffs, if plaintiffs prevail on the merits at the end of the litigation, it said. It makes “no sense” for plaintiffs to oppose the language, as the plaintiffs said they do, because “only importers of record who are plaintiffs could possibly seek reliquidation and, if approved by the courts, be directly affected by any reliquidation,” said the government. Akin Gump lawyers for sample case plaintiffs HMTX Industries and Jasco Products responded that while the “vast majority” of the Section 301 cases involve importers of record, some of the stayed cases involve plaintiffs that don’t fit that description. The issue hasn't been raised in recent status conferences and filings, and modifying the PI order is not the “proper vehicle” for resolving it, they said. Plaintiffs “stand ready” to continue working with the government on “streamlining the process for implementing the refund remedy in preparation for the end of this litigation” if the plaintiffs win, said the Akin Gump attorneys. But DOJ took a different tone. “In our view, plaintiffs are unlikely to succeed on the merits of the Section 301 cases, and no such resource-intensive task will be necessary” at the end of the trial to properly dole out tariff refunds, it said. “In light of the extensive resources we have already dedicated to compliance with the preliminary injunction, unless ordered by the Court, we have no reason to continue working on a reliquidation or refund process unless and until the plaintiffs prevail on the merits.” Akin Gump's lawyers, on the other hand, said they defer to the court “on the proper schedule for such efforts.”