CD: What key trends have you seen in trade and customs litigation over the past 12-18 months? To what extent has there been a rise in investigation and enforcement activity by government authorities?

O’Brien: We have seen a general increase in the level of enforcement of cross-border intellectual property rights. For example, seizures of counterfeit products by US Customs and Border Protection (CBP) significantly increased this past year, in part due to closer cooperation and joint enforcement operations with exporting country governments. Similarly, enforcement actions under the Economic Espionage Act have risen substantially, as trade secret misappropriation continues to take on increasing importance. And patent actions continue to command a high level of attention in the district courts and in several federal agencies.

Cone: Importers continue to challenge the way CBP classifies their merchandise under the US tariff schedule. The US Court of International Trade (CIT) has been siding frequently with importers in these disputes, leading to significant customs duty refunds. On the other hand, CBP and the US Department of Justice (DOJ) have been actively pursuing penalty actions against importers and individuals they think are responsible for underpayments of customs duties. In terms of investigation and enforcement, CBP’s budget has been growing year after year. The agency recently stated its intention to increase the number of customs compliance audits and dedicate new assets to enforcing trade laws and not just to fighting terrorism. A recent upgrade of CBP’s computer networks and the inter-agency electronic platforms it uses to enforce the laws of 40 other agencies has led to heightened enforcement activity for imported commodities across the board.

Jan-Mar 2015 issue

Baker & Hostetler LLP

Baker & McKenzie

FisherBroyles, LLP

Jones Day