Section 301 Lawyers Set Up Informal 'Standing Committee' as Debates Linger on Case Management

Lawyers for importers that have filed suit under the extensive ongoing Section 301 litigation have established an “informal” steering committee to manage the case, law firm Neville Peterson said in a Dec. 1 blog post, adding that the committee “confers with some regularity.” Most observers expect the U.S. Court of International Trade will pick the first-filed Section 301 complaint from HMTX Industries and Jasco Production as the lead case, and stay the roughly 3,700 other actions while HMTX is litigated, the law firm said.

“More than two months after the HMTX case was filed … there has been surprisingly little action,” but for “some minor skirmishing from some plaintiffs,” Neville Peterson said. Some importers favor picking a complaint other than HMTX's as the lead case, or joining it with other actions that raise constitutional challenges to the Section 301 tariffs, it said. Still others argue that HMTX should proceed ahead on its own, since the CIT “will not consider constitutional issues if cases can be decided on non-constitutional grounds,” it said.

The Department of Justice’s deadline to file answers to the HMTX action “technically” has elapsed, the blog post said. Though the CIT likely won’t hold DOJ “in default” for failing to respond, “the urgency for establishment of a case management plan is increasing,” it said.

While there has been some debate as to whether importers should file protests to challenge the Section 301 tariffs, Neville Peterson has concluded that protests are a viable way to court, but are “not necessary, since filing a protest would be futile and the Court would almost certainly waive the exhaustion of that particular administrative remedy,” it said.

“A protest is a 'slow boat' approach to bringing a Section 301 challenge in the CIT,” Neville Peterson said. “A protest must be filed against the liquidation of every entry in which Section 301 duties are challenged, within 180 days, and once a protest is denied, CIT litigation must be brought within 180 days. All liquidated duties, taxes and fees must be paid prior to filing suit. Protests can usually reach entries made during the last 17 months, while the Court’s 'residual' jurisdiction, under which the 3500+ Section 301 challenges have been filed, allows recovery of duties paid within two years prior to the filing of suit,” it said.