Section 301 Plaintiffs ‘Eager’ to Speed Litigation Forward, Court Told

HMTX Industries and Jasco Products, first plaintiffs to file in the massive Section 301 litigation seeking to vacate the Lists 3 and 4A tariff rulemakings and get the duties refunded, strongly oppose DOJ’s prolonged briefing format and schedule proposed Monday in a motion for case management procedures (see 2010200020), said Akin Gump in a response (in Pacer) Thursday at the U.S. Court of International Trade. The government proposed the parties not begin to argue the “merits of this dispute” before 2022 or beyond, it said. “Given the ongoing harms to thousands of plaintiffs, among others, that protracted schedule is unacceptable.” The CIT instead should follow the harbor maintenance tax (HMT) litigation as a model by staying all but the HMTX-Jasco complaint and ordering the parties to file “concurrent cross-motions for summary judgment addressing particular issues, including both jurisdictional and merits questions,” said Akin Gump. Adopting the HMT litigation’s cross-motions procedure “will best achieve the aims of resolving the key legal issues in an efficient manner,” it said. “Unnecessarily delaying resolution of this case for additional months or years -- with all the attendant litigation expenses and accruing duties that would entail -- is unwarranted.” Since more than 3,500 importers filed suit, many of whose entries have already liquidated or will liquidate soon, it’s important “to confirm at the outset that the government will stipulate, as it has in other cases, that a refund remedy is available should plaintiffs prevail,” said Akin Gump. “Such relief remains critical to ensuring that these cases are handled efficiently, effectively, and with the least administrative burden possible.” DOJ hasn’t taken a position on refunds and indicated to plaintiffs it won’t do so until a test case is picked. DOJ didn’t respond to questions. DOJ’s motion for case management procedures is likely to face broader opposition, blogged law firm Thompson Hine Wednesday. "This motion is expected to trigger a raft of challenges by plaintiffs’ counsel in all of the Section 301-related cases on such DOJ positions as the composition of the Plaintiffs’ Steering Committee and the designation of appropriate test cases," it said.