The Trump administration’s International Emergency Economic Powers Act (IEEPA) tariff regime was dismantled in February by the Supreme Court, setting off a cascading series of procedural actions and litigation related to tariff refunds.
The government launched its online portal for processing refund requests on April 20, and importers have been rushing to file for paybacks ever since. To date, $24 billion has been approved through the Consolidated Administration and Processing of Entries (CAPE) for disbursement by U.S. Treasury, and Customs and Border Protection anticipates that over $95 billion is either approved or imminently to be approved.
As those refund payments are beginning to hit their accounts, however, their consumers are evaluating the role they played in offsetting the cost of duties for brands and retailers. A webinar hosted by Dorsey & Whitney LLP last week explored the potential litigation risks posed by tariff refunds, asking what claims are possible against importers that receive them.
The fallout started even before the refund process began. Costco faced a lawsuit from a consumer in Illinois alleging that it violated the Illinois Consumer Fraud Act as well as other state laws by inflating retail prices will also pursuing full tariff refunds from the government; in February, 13 different class actions were filed against FedEx alleging that it collected IEEPA duties as the importer of record, and now seeks duty refunds from CBP that consumers won’t have access to.
More cases are pending. A case against Amazon, for example, alleges that the online marketplace has opted not to seek refunds of IEEPA duties in order to “curry favor” with the Trump administration to the detriment of consumers who paid inflated prices. Cases brought against Shein and Temu in an Illinois state court allege that the fast fashion e-tailers made “windfall profits” amid the tariff scheme by raising prices to offset costs. And several claims against Nike allege that the brand raised shoe prices substantially—by up to $10 per pair—and now expects to see a $1 billion IEEPA refund that it won’t share with its shoppers. Lululemon, too, faces a suit saying it stands to see a $240 million windfall in the form of refunds after raising prices on consumers.
“There’s a large pot of money in refunds that’s being paid back to importers, some of it paid already, and a lot more coming over the next few months,” said Tony Badaracco, a partner at the law firm’s New York office. “But if there’s one thing we know about the U.S. legal system, it’s that there are going to be plaintiffs who are going to assert claims to get pieces of that pie.”
“Now that those duties have been declared to be unlawful, I also don’t think it’s particularly hard to imagine that there will be businesses, resellers, and other distributors who’ve purchased goods from importers… who are going to be looking for refunds now,” he added. This, in addition to consumers.
Badaracco said that thus far, Costco is the only defendant that has responded to the allegations in court. The retailer moved to have the case dismissed, saying that it has not received IEEPA tariff refunds from the government yet, so consumers’ assertions that they’re entitled to shares of that money are premature.
It also argued that while consumers may have been served higher prices on certain products than they saw at the store in a pre-IEEPA world, but they still chose to buy the goods of their own volition. Costco said that the statements it made regarding raising prices due to tariffs on its investor earnings calls were “general expressions of Costco’s pricing philosophy, but they weren’t binding promises made to particular customers about exactly what the company would do,” Badaracco added, and therefore, the claims against the company weren’t actionable.
“We certainly don’t know exactly what the court is going to do with these arguments, but this is really the only case at this point where we have not only a complaint to look at, but a pretty fulsome response by the defendant,” the lawyer added. “I think it provides a pretty good set of examples for what we can expect to see, and how some of these other cases will play out as well.”
