CAFC Affirms Otter Decision on Phone Covers

On August 24, 2016, the U.S. Court of Appeals for the Federal Circuit (CAFC) issued an important opinion affirming the U.S. Court of International Trade’s (CIT) decision in Otter Products, LLC v. United States, 70 F.Supp. 3d 1281 (Ct. Int’l Trade 2015).  The CIT had held that two styles of smartphone covers were classifiable as other articles of plastic under subheading 3926.90.99, HTSUS, dutiable at 5.3%, and had rejected Customs’ claim that the covers were classifiable as “similar containers” under subheading 4202.99.90, HTSUS, dutiable at 20%.

The two styles of covers at issue, OtterBox’s Commuter and Defender Series, are representative of many styles of smartphone covers imported into the United States.  The Commuter consists of a silicon mid-layer and a rigid outer plastic shell.  It does not cover the screen.  The Defender consists of four pieces: a clear protective membrane to cover the screen, a polycarbonate shell, a plastic belt clip holster, and an outer silicon cover.

In affirming the CIT decision, the CAFC noted that because the phone covers are not specifically named in the list of “containers” set out in heading 4202, the phone covers could only be classified under heading 4202 if they qualified as “similar containers.”  To be similar containers, the covers must share the same essential characteristics and purposes as those containers specifically listed in heading 4202.  The CAFC found that because the phone covers neither store, organize, nor help carry smartphones, they do not sufficiently share the essential characteristics of heading 4202 containers.  Notably, in reaching its decision, the CAFC also relied on the fact that the phone covers are designed to allow a smartphone to remain fully usable inside the cover.  The CAFC found this essential purpose to be inconsistent with the exemplars of heading 4202, which generally do not permit the use of their contents.

The effects of the CAFC decision will likely be far reaching and may offer significant opportunities for duty savings or refunds on covers for smartphones, tablets, and other media devices.  If you would like a copy of the CAFC opinion, have any questions regarding the impact of this case, or if you wish to discuss obtaining duty refunds, please contact Joseph Spraragen ( This e-mail address is being protected from spambots. You need JavaScript enabled to view it ) in our New York Office or Erik Smithweiss ( This e-mail address is being protected from spambots. You need JavaScript enabled to view it ) or Heather Litman ( This e-mail address is being protected from spambots. You need JavaScript enabled to view it ) in our Los Angeles Office.


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