Not All Section 301 Suits Argue ‘Same Substantive Challenges,’ Says Law Firm
Law firm Husch Blackwell doesn't object to DOJ’s proposal to designate the first-filed HMTX Industries-Jasco Products complaint as a test case in the massive Section 301 litigation, but “there is no reason that it should be chosen as the only test case without further analysis,” it said Thursday in a partial opposition (in Pacer) to the government’s Oct. 19 motion for case management procedures (see 2010200020). It told the U.S. Court of International Trade it represents 75 “individually named plaintiffs” of the “approximately 6000 plus” importers seeking to vacate the Lists 3 and 4A tariff rulemakings and get the duties refunded.
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“An examination of all the pertinent claims and challenges of all relevant cases is necessary” before picking the test cases “because not all the complaints have articulated the same substantive challenges or the same causes of action,” said Husch Blackwell. HMTX-Jasco alleges the Office of the U.S. Trade Representative overstepped its authority under the 1974 Trade Act when it imposed Lists 3 and 4A as retaliatory tariffs against the Chinese, and that it violated the Administrative Procedure Act by running allegedly sloppy and nontransparent rulemakings, said Husch Blackwell.
Though most of the other complaints “raise similar causes of action with little or no substantive variation,” some cases argue “substantively different” Section 301 claims, it said. It represents importers 3A Composites and FlexFab in their challenge to Lists 3 and 4A as being “on their face disproportionate to the burden or restriction that the statute authorizes to remedy,” and are therefore “ultra vires” (beyond the powers) of USTR, it said. Their secondary argument also differs from HMTX-Jasco by challenging USTR’s failure to “meaningfully consider all relevant factors and explain their rationale in accordance with the procedures required under Section 301,” said the firm.
It reviewed the roughly 3,600 other complaints and found only one (in Pacer), from importer Fabuwood Cabinetry filed Sept. 18, that makes similar arguments, it said. The CIT “at a minimum” should pick “two or potentially three” test cases to be sure all “substantive claims are adequately and fully considered,” it said. “There may be other claims that also should be taken into consideration and included as test cases.” Fabuwood’s outside counsel, Mowry & Grimson, didn’t respond to questions Friday.
Husch Blackwell also wants the CIT to create the plaintiffs’ steering committee “after, and not before, the test cases are chosen,” it said. “Simply selecting the committee in order of the timing of the cases filed risks missing representation of some substantive differences in the theories of the cases.” The firm thinks “all parties will agree” that the steering committee should represent “all of the counts of the plaintiffs,” it said.
It’s “inappropriate” for the government to try to pick the plaintiff attorneys to serve on the steering committee, said the firm, as DOJ did when it proposed staffing the committee with the lawyers in the first three complaints filed. “That is a process that should be reserved for the plaintiffs to decide amongst themselves after the selection of the test cases.” The CIT should reject DOJ’s “rush to put procedures in place without full input of all of the parties to the cases, and without full consideration of the facts,” Husch Blackwell said. It has no objection to the government’s proposal of automatically staying all but the HMTX-Jasco complaint “until after selection of the appropriate test case or test cases and the adoption of a case management order,” it said. DOJ didn’t respond to questions Friday.