Lawyer Expects ‘Logjam’ Soon Will Break in Section 301 Litigation Stalemate

The procedural stalemate in the Section 301 lawsuits inundating the U.S. Court of International Trade is traceable to Chief Judge Timothy Stanceu and his staff “really looking at everything very carefully,” Grunfeld Desiderio partner Ned Marshak said in an interview. His firm has filed about 800 of the 3,700 complaints, including a case filed Jan. 6 on behalf of flooring company R.A. Siegel based on a two-year statute of limitations running from a 2019 date of liquidation. All the complaints seek to vacate the lists 3 and 4A tariff rulemakings and get the duties refunded. Most of the actions based timeliness within the two-year statute of limitations dating to when List 3 was published in the Federal Register or when the tariffs took effect on Sept. 24, 2018. Fewer based the two-year window on dating to when List 3 tariffs were first paid.

“At some point, the logjam is going to break,” Marshak said. As cases continue to trickle in at the rate of about one a day, no case has yet been assigned to a judge and there is no resolution about case management procedures, including which actions will serve as the designated test cases. “People are waiting for the judge,” he said. “It’s going to happen.” Stanceu’s chambers didn’t respond to our questions.

The CIT has “never seen anything like this before, and my sense is, they want to get it right,” Marshak said. “They want to look at all the complaints, because not all the complaints are the same. At some point, they’re going to take control of it.” Grunfeld Desiderio is advising clients that “it’s not too late to file,” Marshak said. “There’s a fairly decent chance that you’re not totally out if you file now.” Establishing timeliness based on date of liquidation “is your last hope, and it’s not crazy,” he said. “Is it the safest? Absolutely not.” Marshak firmly believes “the litigation stays the same” under the Biden administration, he said. But he doesn’t rule out Section 301 plaintiffs approaching DOJ about possible settlements, he said. The bigger question is what will the new administration do about the Section 301 tariffs on Chinese imports, he said: “In my mind, this is not top priority. There are so many more important issues.”

Email ITTNews@warren-news.com for a copy of the R.A. Siegel filing.