Neal Katyal, the winning advocate in the Learning Resources case, says his team decided not to raise the question of rebates because their legal research showed that all the precedents said that if a tariff is found to be illegal, then it must be refunded.
By contrast, Team Fascist says they are still mulling what to do about all that money they collected illegally.
Some thing this will lead to a big, bloody mess. But, to me, the situation bears a close resemblance to the issue of illegal overcharges in antitrust law, which I used to practice back in the olden days when I still had all my hair.
In federal antitrust law, someone who pays an illegal overcharge for widgets has the legal right to damages calculated based on the amount of the overcharge. The direct purchaser has the right to the full amount of the overpayment. It doesn’t matter whether they passed on all or part of the overcharge to their own customers. The party that charged the excess amount may not be heard to argue that some of the overcharge was passed on to other purchasers down the line. And an indirect purchaser who bore some of the overcharge has no legal claim to a refund (whatever you might think of the indirect purchaser’s moral claim for the overcharge he paid).
State law may differ, but that’s how federal antitrust works. And, typically, the direct purchaser’s claim is enforced through class action litigation.
Logically, then, the solution here is that there should be a national class action in which the plaintiff class would consist of everyone who directly paid an IEEPA tariff. In that class action, Team Trump would be barred, by the doctrines of res judicata and collateral estoppel, from relitigating the question the Supreme Court just decided. Nor could Team Trump argue that payouts to those who directly paid the illegal tariffs should be reduced by the amounts they passed on to someone else. The remaining issue in the class action would be what documentation a plaintiff class member would be required to submit in order to claim her refund.
Facing MAGA 