IEEPA Refunds Update
A good portion of what has gone on with the IEEPA refund cases has been fast moving and covered at a high level in the various forms of the press. There were, however, a couple of developments last week which are worth highlighting. First, CAPE Phase 3 is finally open, so even those with finally liquidated entries may now make refund claims. At the same time, attorneys representing importers who had their eligibility to claim in CAPE established by July 30 received emails from CBP authorizing those refunds to be filed. The latest Brandon Lord declaration can be seen HERE. Sadly, while it does state CBP will be notifying the attorneys for other importers deemed eligible at later dates, there is no timeline given. So, even while Phase 3 now works, it still does not provide everyone eligible with a means to seek their refunds.
That leads to a couple of impactful questions:
1. When will Phase 3 be available for all to make their refund claims? and
2. What is the impact of the class certification order which was published last Thursday, October 8?
Regarding the class action topic, we now also have the decision in the Freestyle case, the one seeking class action certification, which was granted on October 8, 2026. The outcome applies to any importer who did not separately file its own case at the Court of International Trade. A copy of the CIT order can be seen HERE.
The Government's arguments were found to fall short and so while class action certification has been granted, that case is not going to result in refunds for at least some time. First, as a result of the order, the Government has been directed to respond to the complaint. The parties face a closed hearing on October 13, 2026 and are also under order to provide a scheduling order by October 22, 2026.
So, while the CIT order now puts CBP and DOJ in the position there is a court order in place for anyone who makes a claim (regardless of the liquidation status of their entries), its impact will not be felt for some time. Given the vigorous efforts by DOJ and CBP to resist making any refunds at just about all cost, it would be foolhardy to think the possibility of an appeal is not being considered.
As such, it would be reasonable for the trade community to consider the Freestyle order to be a move in the right direction, but one whose full benefit is going to take time to become fulfilled.
