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Chinese Product Tariff Challenge Causes Flurry of Importer Lawsuits

Client Alert

A lawsuit filed late in 2020 at the U.S. Court of International Trade (“CIT”) challenging the U.S. Trade Representative’s (USTR) implementation of Section 301 “List 3” and “List 4” duties on products from China, HMTX Industries LLC et al. v. United States (Court No. 20-00177), has resulted in the filing of thousands of additional lawsuits brought by other affected importers. There are now 3,700+ companies added to the list, including Ford, Home Depot, Target, Tesla, and Walgreens, along with many other smaller importers.

BACKGROUND

In 2017, USTR was directed by the President to initiate a targeted investigation pursuant to Section 301(b) of the Trade Act of 1974 regarding China’s laws, policies, practices, and actions related to intellectual property, innovation, and technology. Upon the release of the report, USTR imposed a 25% tariff on a list of 1,333 items with a total trade value of $50B. This was followed by subsequent lists of additional products from China with tariffs ranging from 10% to 25%.The items on List 3 have an annual trade value of $200B and those on List 4 have a trade value of $300B. Items on these lists include furniture, lighting, vehicle parts, machinery, food, clothing and many more.

EXISTING LAWSUIT

On September 10, 2020, HMTX Industries LLC and two of its subsidiaries filed a complaint at CIT alleging an unlawful escalation of the ongoing trade war with China through the imposition of a third round of tariffs on imports covered under List 3 of the Section 301 tariffs. An amended complaint was filed on September 21, 2020 to include List 4A.

Plaintiffs have generally taken the position that, while initial retaliatory tariff action reflected in the implementation of Section 301 Tariffs on products found on List 1 and List 2 may have been lawful, the USTR’s subsequent round of actions (i.e., List 3 and List 4A) failed to comply with requirements under the Administrative Procedures Act.  These lawsuits, if successful, may ultimately eliminate List 3 (and where applicable, List 4A) tariffs and result in refunds.  It remains to be seen whether refunds would be applicable to all importers, or only those who filed complaints. 

The complainants seek to set aside these alleged unlawful actions and obtain a refund of any duties paid on imports of List 3 and List 4 products from China. All complaints are asking for a refund, with interest, of duties paid, costs, and reasonable attorney fees.

JOIN THE COMPLAINT

The strategy behind this type of lawsuit is to file suit and then move to consolidate with the HMTX Industries case or stay the lawsuit pending CIT’s disposition of the HMTX case. This strategy will allow the bandwagon importers to benefit if the HMTX Industries lawsuit is successful without incurring the large expenses of fully litigating their claims.

Because USTR published List 4A in the Federal Register on August 20, 2019, the two-year statute of limitations for filing a List 4A lawsuit based on publication date does not expire until August 20, 2021. This means importers that did not import products from China under List 3 (or chose not to file a List 3 lawsuit now) have an opportunity to file a lawsuit to join this challenge on imported Chinese products subject to duties under List 4A.

HOW BMD CAN HELP

Many of our clients may be directly or indirectly affected by these tariffs. Because of existing protest limitations, joining this lawsuit might be a reasonable option to attempt to recover those costs. If any clients are aware of imported items subject to these tariffs or wish to have their import documents reviewed, please contact International Law Attorney Kevin Burwell directly at kdburwell@bmdllc.com or 330-253-3715.


Valley National Bank/Trulieve Loan: A Big Step Out of the Shadows

In a late December press release, Trulieve announced that it had secured a $71.5 million commercial bank loan. In addition to the amount of the loan, which may be the largest commercial bank loan to date to a cannabis company, the release prominently identified Valley Bank and featured both a quote from Valley’s Senior Vice President, John Myers, and a description of the Bank’s service platform and commitment to the cannabis industry.

The End of Non-Competes? The Impact It Will Have on the Healthcare Industry

On January 5, 2023, the Federal Trade Commission (“FTC”) announced a proposed rule that, if enacted, will ban employers from entering into non-compete clauses with workers (the “Rule”), and the Rule would void existing non-compete agreements. In their Notice, the FTC stated that if the Rule were to go into effect, they estimate the overall earnings of employees in the United States could increase by $250 billion to $296 billion per year. The Rule would also require employers to rescind non-competes that they had already entered into with their workers. For purposes of the Rule, the FTC has defined “worker” to also include any employees, interns, volunteers, and contractors.”

2022 Healthcare Recap and 2023 Healthcare Check-Up

As the country begins to return to a new “normal” following the COVID-19 pandemic, there are many healthcare rules changing on both the federal and state levels as a result. Thus, it is important for healthcare providers and their employers to be aware of these changing rules, and any implications they may have on their practice. Look back on healthcare in 2022 and find a checklist for 2023.

Direct Support Professional Retention Payments

On December 15, the Ohio Senate and House passed House Bill 45, which authorizes the Department of Developmental Disabilities (DODD), in conjunction with the county boards of developmental disabilities, to launch their initiative to issue retention payments to Direct Support Professionals (DSPs). These retention payments will be distributed quarterly to participating home and community-based waiver providers to address the workforce crisis in the direct provider sector. Governor DeWine needs to sign the Bill to begin the payments, but he is expected to do so by the end of 2022.

Real Estate Investors Position for 2023 Opportunities

Real estate investors weathered another year in a post-pandemic world, with the year closing with yet another interest rate increase coupled with both uncertainty and heightened interest carrying into 2023. Just last Wednesday, the Federal Reserve raised its benchmark interest rate 0.50 percentage points, shifting the target range to 4.25% to 4.50%. The new level is the highest the fed funds rate has been since December 2007 and marks the seventh rate hike this year. So what does this mean to investors, brokers, lenders, and others in the real estate world? Read a few perspectives below from stakeholders familiar with our BMD clients and the markets in which they do business.