Fate Of Motion To Certify Class For IEEPA Duties Highly Uncertain, Creating Considerable Risk For Importers That Do Not Take Action

On June 4, the plaintiffs in V.O.S. Selections v. Trump filed a motion to certify a class comprising of importers with claims to International Emergency Economic Powers Act (“IEEPA”) tariff refunds that cannot be processed through the U.S. Customs and Border Protection’s (“CBP”) Consolidated Administration and Processing of Entries (“CAPE”). The motion was filed along with competing briefs over whether the Court of International Trade (“CIT”) can order universal relief for all importers whose IEEPA entries are finally liquidated. See also here and here. At a hearing on June 9, the CIT expressed reluctance about moving forward on a class basis, instead pressing the Government to abandon its appeal of the CIT’s April 19 universal injunction.  
 
We have received many questions regarding the motion to certify, including whether importers with refund claims for fully liquidated IEEPA tariffs can rely on the putative class representatives to litigate for them. For several reasons, the short answer is no. First, class actions are extremely rare at the CIT, meaning the court is left with few precedents to follow. Second, and relatedly, there are serious questions as to whether the class would be properly certified, which may not be resolved for years should the decision on certification be appealed and eventually reversed. Third, it is unclear whether the pendency of the putative class action tolls the statute of limitations, meaning an importer who relies on the class action may be time-barred from filing suit should the class action prove unsuccessful.
 
Further, importers with claims to refunds that can be processed through CAPE, which is currently limited to unliquidated entries and entries within 80 days of liquidation, are not included in the proposed class definition. These importers should file refund claims through CAPE as soon as possible to ensure their claims can be processed administratively.
 
In short, it remains that the most assured way for importers with finally liquidated entries to secure their rights is to file an action at the CIT.