CIT Weighing Whether to Advance Distinct Claims Against Section 301 Tariffs

The Court of International Trade is considering asking certain plaintiffs in the massive Section 301 litigation how they would like to proceed with claims that are distinct from the ones already decided by the trade court. Speaking at an April 11 status conference with the government and representatives of the 15-member steering committee for the plaintiffs, Judge Mark Barnett asked if the court should ask those plaintiffs whether or not they want to continue to litigate the distinct claims, and if the claims move forward, whether there is any reason to wait to resolve them (In Re Section 301 Cases, CIT # 21-00052).

Matt Nicely and Pratik Shah, both of Akin Gump, said that they would not stand in the way of any other companies seeking to advance other claims since they have "no dog in the fight," though some may find it more efficient to wait until the appeal concludes. Addressing the potentially remaining appeals, Nicely grouped them into two categories: cases where overlapping-yet-slightly-different claims were made and cases where completely unique claims were made.

On these latter proceedings, Nicely said that only a handful remain. One such case was brought by Hogan Lovells and is a constitutional claim, while two others deal with the Murray v. Charming Betsy Supreme Court holding and Section 301 exclusions, Nicely said. "I think I will consult with our colleagues and we will figure out if we want to do anything in the short term with regard to those handful of cases, but with the majority of cases, I think we all know where we're going," Barnett replied.

The trade court decided the claims brought by the lead plaintiffs on March 17, after finding that the Office of the U.S. Trade Representative complied with Administrative Procedure Act requirements when it set the lists 3 and 4A Section 301 tariffs on China (see 2303170063). The steering committee already has said it intends to appeal (see 2303220033).