The three-judge panel established by the Court of International Trade (CIT) to manage the China Section 301 tariff refund litigation has issued two procedural orders in the recently-established master case (Court No. 21-cv-00052-3JP) (see Update of February 8, 2021), setting a path forward for this massive litigation.

In a February 10, 2021 order, the panel announced:

  • All filings in the master case will be deemed to have been docketed and filed in each individual case and need not be separately filed in each case;
  • All filings relating to a specific case only that are not of interest except to the parties directly affected by them should use the original assigned case number — and not the master case number — and be filed in the original case;
  • To receive notices of filings in the master case, counsel for each Section 301 plaintiff must file a notice of appearance in the master case; and
  • The defendants must file their answer and affirmative defenses by March 12, 2021, which will constitute an answer in each of the Section 301 cases unless a later answer is filed separately in a specific case.

In a February 16, 2021 order, the panel announced:

  • It will proceed with a “representative sample of cases” under consolidated briefing. The plaintiffs must propose a sample of cases to be considered and submit such a proposal no later than March 19, 2021. No later than March 26, 2021, any plaintiff whose case was not included but that believes it should have been may submit a request and argument to the CIT for consideration. Once the sample cases are selected, the CIT anticipates staying all other Section 301 cases.
  • It will select counsel to serve as part of a plaintiffs’ steering committee. This counsel group will work with the three-judge panel to adopt further case management procedures and to coordinate with each other in the filing of consolidated briefs and other submissions. The plaintiffs must propose a list of steering committee members no later than March 19, 2021. No later than March 26, 2021, any attorneys who are not included in the proposed steering committee but believe that they should be may submit a request and argument to the CIT for consideration.
  • Once the representative sample cases and the members of the steering committee are selected, the panel will meet with the steering committee and counsel for the defendants to identify and discuss additional issues and establish a deadline for submitting a proposed briefing schedule. Any briefing schedule will allow for briefing by amicus curiae, including allowing the plaintiffs not selected in the sample cases to file as necessary.

The February 16, 2021 order notes that both the plaintiffs and the defendants have raised the issue of “interim relief” in prior filings and states that the parties should further confer on this issue. The panel anticipates requiring the submission of a joint status report at a later date, in which any terms regarding the stipulation of available relief will need to be addressed.

Thompson Hine attorneys and trade professionals will continue to monitor and report on significant developments in this litigation.