CIT Deluged With Section 301 Suits; Earlier HMT Litigation Seen as Likely Model for Case Management

The Court of International Trade is deluged with hundreds of lawsuits that closely model a challenge from Akin Gump and HMTX Industries that seeks to force refunds of Section 301 tariffs paid on lists 3 and 4 goods from China (see 2009110005). Such a torrent of filings is rare but not unheard of at the CIT, lawyers involved with and following the litigation said. The most obvious example was the yearslong litigation over the harbor maintenance tax (HMT), they said.

HMTX's lawyer at Akin Gump, Matthew Nicely, said he is happy to see all the additional filers: “We're pleased to see the support that our complaint generated across the country and we look forward to working with the court and the other counsel to manage this litigation.” CIT Clerk of the Court Mario Toscano didn't return a request for comment.

The HMT case was resolved in 1998 when the Supreme Court ruled that the fees on exported cargo was unconstitutional. The main connection between the HMT and Section 301 tariffs is the number of litigants, emailed Michael Roll, a lawyer with Roll & Harris. The Section 301 suit, unlike the HMT case, does not involve a constitutional argument, he said. “It’s a statutory violation, but the similarity is that thousands of exporters filed suit,” said Roll, whose firm is representing some filers and is keeping a list of complainants. “Ultimately, the CIT picked a 'test case' in the HMT litigation and all other cases were stayed until the test case was resolved. After that, there was a judgment and claims process.”

During the litigation of the HMT test case, a steering committee of plaintiffs lawyers worked with the lawyers on the lead case, said Roll, who participated in that committee. “We all worked kinda collaboratively,” he said. Another lawyer familiar with the Section 301 case agreed that a test case approach is among the likely options. Another possibility would be to consolidate all the lawsuits into one suit, though that approach could be seen as more difficult to oversee, given the number of parties involved, the lawyer said.

Meanwhile, HMTX filed an amended complaint to its original suit on Sept. 21, adding Jasco Products Company as a plaintiff. Jasco, unlike HMTX and its subsidiaries, is subject to List 4 tariffs.