GDLSK: Grunfeld Desiderio Lebowitz Silverman & Klestadt LLP
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China Section 301 Litigation Update: Government Files its Initial Response

On March 12, 2021, the U.S. Department of Justice (DOJ) filed a “master answer” in the China Section 301 litigation. The U.S. Court of International Trade three-judge panel that is hearing this case had directed DOJ to file a generic answer to the allegations that are common to the over 3,700 complaints that have been filed to date challenging the imposition of List 3 and List 4A additional duties.

The government’s answer largely consists of general denials of the facts and claims alleged in the filed complaints. Most significantly, the master answer identifies certain affirmative defenses that the government is likely to raise as the case moves forward. These defenses include the following: 1) the Administrative Procedure Act (APA) does not apply because the imposition of the Section 301 duties was a presidential act; 2) the imposition of the Section 301 duties cannot be reviewed by the court because they arose either out of the president’s political discretion or out of the foreign affairs exemption; 3) the actions of the United States Trade Representative (USTR) complied with the statutory requirements of the Trade Act of 1974; and 4) USTR is entitled to deference as regarding its imposition of the duties. DOJ noted that it reserves the right to raise additional defenses in future filings.

The next step in the case will see the plaintiffs filing a response to the court’s scheduling order that 1) identifies the proposed members of the Plaintiff’s Steering Committee (which includes GDLSK); 2) addresses the sample case selection; and 3) provides an update on the issue of refunds for liquidated entries. Plaintiff’s response is due March 19, 2021.

If you have any questions regarding this case or if you would like to receive a copy of the master answer, please contact one of our attorneys.


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