Fox Rothschild | Importers Are Racing to Preserve Tariff Refund Rights

As we await a Supreme Court ruling on the validity of the tariffs, the Court of International Trade is seeing a wave of protective lawsuits.

A growing number of companies — following the lead of Costco — are filing protective lawsuits in the U.S. Court of International Trade (CIT) to preserve their right to refunds if the Supreme Court strikes down the Trump administration’s emergency-based tariffs.

If your company paid tariffs International Emergency Economic Powers Act (IEEPA) in 2025, you should consider immediate, practical steps to protect your position.

What’s Driving the Rush to File?

This is a fast-moving situation with real financial exposure. Without litigation and targeted injunctions, many entries may liquidate before a Supreme Court ruling, making refunds harder — or in some cases impossible — to secure.

The core legal issue is straightforward. In 2025, the Trump administration imposed sweeping tariffs under IEEPA through a series of executive orders targeting imports from Mexico, Canada, China, and then broadly across trading partners via the “reciprocal tariff” regime. Both the Court of International Trade and the Federal Circuit have already held that IEEPA does not authorize tariffs; the Supreme Court took the case up, heard argument and is expected to rule soon.

Even if the Supreme Court agrees the tariffs are unlawful, it’s not clear whether refunds would be automatic. Companies are filing “me too” complaints to secure individualized judgments and to seek injunctions suspending liquidation of entries, because liquidation can cut off or complicate refund avenues and force onerous fights over reliquidation or jurisdiction after the fact.

The Costco Playbook

Costco’s complaint, filed at the CIT, squarely challenges the IEEPA tariffs, seeks declaratory and injunctive relief, and requests full refunds of duties paid. Notably, Costco asked the court to suspend liquidation after CBP denied its request for an administrative extension, citing imminent December liquidation dates for 2025 entries.

That timing concern — entries beginning to liquidate mid‑December — has sparked a wave of copycat filings.

On the procedural front, Costco’s case has been assigned to a three-judge CIT panel, and multiple related importer suits have been consolidated for efficient handling of common legal and injunction issues. The government has consented to consolidation of numerous “IEEPA Suspension Cases,” and the court has designated a lead case to streamline preliminary injunction proceedings seeking suspension of liquidation pending the Supreme Court’s decision in V.O.S. Selections.

Why Filing Now Matters

Three practical realities are informing the current filing surge.

First, liquidation risk is immediate. CBP typically liquidates entries within a year (often around day 314), and many 2025 entries have already started to liquidate or soon will. Once an entry liquidates, options tighten: some liquidations are not protestable where CBP acts ministerially; protests have a 180‑day clock; and courts have warned refund rights may be limited post‑liquidation in certain circumstances.

Second, the government’s posture on refunds is adverse. Practitioners report that DOJ and CBP are signaling they do not intend to refund duties to non‑litigants and do not plan to grant protests for liquidated entries. In short, if you want a refund, be a plaintiff. This intelligence has spurred “copycat” filings designed to put importers squarely before the court and to seek injunctions to pause liquidations now.

Finally, being in court can put you “at the front of the line.” Even if the CIT ultimately narrows or denies injunctions, plaintiffs with pending cases are expected to be better positioned than non‑plaintiffs if and when refunds are processed after a Supreme Court ruling.

The Bottom Line

If the Supreme Court confirms that IEEPA does not permit tariffs — and the Federal Circuit’s en banc decision already points strongly in that direction — refunds will still be a function of litigation posture, liquidation timing, and remedial pathways.

Companies that file now can preserve refund rights, protect unliquidated entries through injunctions, and avoid being left behind if the government resists protests or seeks to limit relief to CIT plaintiffs. For importers with meaningful 2025 IEEPA duty exposure, the practical, risk‑balanced next step is to evaluate and, where warranted, promptly file a protective CIT action modeled on the Costco approach, while standing up rigorous entry tracking to stay ahead of liquidation.

For more information, please reach out to:

•Lizbeth R. Levinson, Partner, FOX ROTHSCHILD

•Brittney R. Powell, Partner, FOX ROTHSCHILD

Compliments of Fox Rothschild- a Member of the EACCNY