In a recent Forbes article, Robert Shapiro, Chair of Thompson Coburn’s International Trade and Regulatory Practice, discussed the White House’s likely effort to retain the $175 billion in Trump-era tariffs it has already collected. This comes after the Supreme Court ruled the tariffs unlawful—setting the stage for a potential showdown with major companies that have already filed proactive lawsuits seeking to recover those costs.
Because the Supreme Court did not address how refunds should be handled, the responsibility now falls to the lower courts, leaving significant uncertainty around the timeline. Robert noted that the refund process will likely take at least a year. While legal advisors broadly believe companies are entitled to refunds, Robert emphasized that businesses will need to proactively file lawsuits and supporting documentation in order to claim any repayment.
Read the full article here.
In two additional Forbes articles, Robert expanded on the legal pathways a future Trump administration might use to revive tariff policies. He explained that Trump’s most viable alternative to relying on IEEPA would likely be Section 338 of the Tariff Act of 1930—a rarely used provision that permits tariffs of up to 50% on countries that discriminate against U.S. businesses. “Those tariffs don’t require an investigation or limit how long they can remain in effect,” Robert noted. However, because the federal government has never invoked this statute before, he emphasized there is a “higher risk” that any such action could face legal challenges.
Robert also weighed in on whether consumers might get their money back if companies receive tariff refunds. He said businesses that sell to other businesses may choose to return the tariff-related payments they previously collected, but “individual consumers don’t have much power to demand that.” He acknowledged there is “absolutely” the potential for class‑action lawsuits against companies that raised prices citing tariffs. The core argument in those cases would be that if a company is refunded the tariff costs it passed on, consumers should be reimbursed for the extra amount they paid. Ultimately, Robert said much will depend on “each retailer and how they want to deal with their consumers.”
Read the full articles here and here.
In an interview with NPR, Robert also clarified that importers—who directly pay the tariff charges—are the parties eligible for refunds. Whether those companies will share any refunded amounts with their customers may itself lead to litigation. “I think it’s really going to depend on what arguments are made,” Robert said. “So, if you’re a company that said, ‘here’s your tariff surcharge,’ I think you’re more likely to be in a position where someone’s going to have a claim to recover.”
Listen to the full interview here.
In recent Law360 article, Robert shared that the decision to strike down the Trump administration’s broad tariff regime could also result in a wide range of private commercial disputes, and possibly even investment treaty claims against the U.S. He shared that an entity looking to buy or sell a company might want to factor potential tariff refunds into its negotiations. A company might also pursue refunds if its customers could potentially file litigation against it to recover illegally charged tariffs.
“If you’re going to owe money to your customer based on those tariffs going away, then you may not have [many options] but to make sure that you put yourself in a position to recover from CBP or from the government,” said Robert.
Read the full article here.
