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

The procedural stalemate in 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's Ned Marshak told us Thursday. His firm has filed about 800 of the 3,700 complaints, including its first case Wednesday (in Pacer) establishing two-year timeliness based on its client’s 2019 import liquidation. The complaints seek to vacate the List 3 and 4A tariff rulemakings and get duties refunded. Most actions based timeliness within the two-year statute of limitations dating to when List 3 was in the Federal Register or when the tariffs took effect Sept. 24, 2018. Fewer based the two-year window dating to List 3 first payments. “At some point, the logjam is going to break,” said Marshak. As cases trickle in at about one a day, no case has been assigned to a judge, and there's no resolution about case management procedures, including which actions will be the designated test cases. 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,” said Marshak. “They want to look at all the complaints, because not all the complaints are the same.” Grunfeld Desiderio is advising clients “it’s not too late to file,” said Marshak. “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. Marshak firmly believes “the litigation stays the same” under the Biden administration, he said. He doesn’t rule out plaintiffs approaching DOJ about possible settlements. The bigger question is what the new administration will do about Section 301 tariffs on Chinese imports, he said: “In my mind, this is not top priority. There are so many more important issues.”