Accordingly, companies that have not yet joined the litigation, but have potential refunds associated with entries that liquidated more than 90 days ago, should consider filing their own protective pleading with the CIT as soon as possible.

In this regard, given the Government’s position, it is increasingly likely that a company-specific court order will be required to recover refunds on finally liquidated entries.

Please contact us if you are interested in filing. We will continue to keep you apprised of further developments.

The Court found that the three importer plaintiffs had standing and granted them a permanent injunction against the assessment of the Section 122 tariffs.

The decision suggests that other importers who paid these duties would also have standing. However, the Court did not address whether broader universal relief could be granted, and that issue remains an open question.

The decision was immediately appealed by the Government and is likely the first step in a significant appellate dispute. We also expect that the Court of Appeals for the Federal Circuit may stay the injunction pending appeal. Notably, the CIT decision was not unanimous, and thus, the possibility of reversal is greater than in the IEEPA case.

While importers seeking to recover Section 122 tariffs may ultimately need to file their own action before the Court of International Trade, for now we recommend waiting to see how the litigation develops.

We are closely monitoring this case and will provide updates as appropriate.

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For further information, please contact Gail Cumins at gcumins@spcblaw.com, Alli Baron at abaron@spcblaw.com or call us at 212-425-0055.