DealLawyers.com Blog

Liz shared the weekend’s tariff ups and downs on TheCorporateCounsel.net on Monday and discussed some of the disclosure considerations (particularly time-sensitive for companies still finalizing 10-Ks). Tariff uncertainty may also be a particularly time-sensitive issue for M&A practitioners trying to figure out not only what the SCOTUS decision — but also the Administration’s announcement of Section 122 tariffs of 15% — means for their deals.

For detailed legal coverage of the weekend’s developments, check out this Eversheds Sutherland alert. It warns (citing the dissent) that the resulting refund process could be a “mess” and that all the trade deals are now in an uncertain state as a result of the decision. What the possible refund “mess” might look like is still unclear (although we’ve now seen at least one complaint filed for refunds). Here’s more from the alert:

The CIT will now be responsible for determining the scope of appropriate relief and the procedures for its administration. There is little doubt that the CIT will authorize or recognize the general rights to a refund – given the underlying illegality of the tariff collected. Indeed, in requesting a stay of the original decisions against the imposition of IEEPA tariffs, the Trump Administration conceded that refunds would be paid with interest if the IEEPA tariffs were ruled to be illegal. Specifically, in a filing with the US Court of Appeals for the Federal Circuit on May 29, 2025, the Department of Justice stated that “[i]f tariffs imposed on plaintiffs during these appeals are ultimately held unlawful, then the government will issue refunds to plaintiffs, including any post judgment interest that accrues.” Until the Administration or CIT provide additional guidance, it is unclear how such tariff refunds will made and what steps importers will be required to take to request any refunds. The process could involve the use of existing administrative Customs tools (post-summary corrections and protests), filing lawsuits with the CIT, or a new specified avenue.  Importers therefore should gather documentation to support any such refund requests and should, in the interim, take all appropriate steps to perfect their refund requests under existing rules and procedures.

Specifically, this Greenberg Traurig update says that importers may want to:

– Download relevant data from CBP’s Automated Commercial Environment portal for entries made under IEEPA tariff codes. Relevant information includes entry numbers, dates, and the specific amounts of IEEPA duties paid;
– File an action in the CIT covering all entries where IEEPA duties have been paid; and
– File protective protests with CBP within the 180-day protest period for entries that have been finalized or “liquidated.”

As far as the impact on pending deals, the “good” news is that everyone has recent experience navigating this tariff uncertainty, but let’s recap some considerations. With the Trump Administration immediately announcing an alternative tariff regime and existing trade deals off the table, we don’t know whether the new Section 122 tariffs will be extended past their 150-day maximum, if another avenue will be pursued, or if other deals will be negotiated. That means renewed challenges for: financial forecasts and valuations; trade and supply chain due diligence; allocation of risks associated with any new tariffs in purchase agreements; and tariff-related exclusions to RWI policies — plus the increased risk of post-closing disputes that comes with uncertainty and complexity. For refunds, the Greenberg Traurig update says parties may want to specify which party is entitled to refunds attributable to pre-closing period tariffs, rather than rely on standard post-closing tax covenant provisions, and address which party has the obligation to collect, the level of efforts that must be applied, how long to pursue and whether the collection costs may be set off.

– Meredith Ervine