Freestyle World, Inc. v. United States

Slip Op. 26- UNITED STATES COURT OF INTERNATIONAL TRADE ____________________________________ : FREESTYLE WORLD, INC., on behalf : of itself and all others similarly situated, : : Plaintiff, : : Before: Richard K. Eaton, Judge v. : : Court No. 26-01088 U.S. CUSTOMS AND BORDER : PROTECTION; RODNEY S. SCOTT, in : his official capacity as Commissioner of : U.S. Customs and Border Protection; : and the UNITED STATES OF AMERICA, : : Defendants. : ____________________________________: OPINION AND ORDER [Plaintiff’s motion for class certification and appointment of class counsel is granted.] Dated: October 8, 2026 Lawrence M. Friedman, Barnes, Richardson & Colburn, LLP, of Chicago, IL, Elizabeth J. Cabraser, Lieff Cabraser Heimann & Bernstein, LLP, of San Francisco, CA, and Nicholas Diamand, Lieff Cabraser Heimann & Bernstein, LLP, of New York, N.Y., argued for Plaintiff. Also on the brief were Daniel M. Hutchinson, Lieff Cabraser Heimann & Bernstein, LLP, of San Francisco, CA, Lucas Issacharoff, Lieff Cabraser Heimann & Bernstein, LLP, of New York, N.Y., and Joel B. Young, The Tidrick Law Firm LLP, of Walnut Creek, CA. Justin R. Miller, Attorney-In-Charge, International Trade Field Office, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of New York, N.Y., argued for Defendants. Also on the brief were Brett A. Shumate, Assistant Attorney General, Eric J. Hamilton, Deputy Assistant Attorney General, Patricia M. McCarthy, Director, and Claudia Burke, Deputy Director. Eaton, Judge: Plaintiff Freestyle World, Inc. (“Plaintiff” or “Freestyle”) commenced this class action lawsuit on February 19, 2026. See Compl., ECF No. 4. Now, by its motion for class certification and appointment of class counsel, Plaintiff asks the court to certify a proposed class Court No. 26-01088 Page 2 composed of “[a]ll importers of record who paid duties imposed by the Challenged Tariff Orders[1] between February 1, 2025[,] and February 19, 2026,[2] excluding any entity that has separately filed an action seeking to recover [International Emergency Economic Powers Act (“IEEPA”)] duties payments.” Pl.’s Mem. Law Supp. Mot. Class Certification and Appointment of Class Counsel (“Pl.’s Mot.”) at 2, ECF No. 12. Plaintiff asks the court to certify an injunctive class under USCIT Rule 23(b)(2). 3 The relief sought by Plaintiff, on behalf of itself and the proposed class, is an injunction directing liquidation or reliquidation 4 of entries without regard to unlawfully imposed IEEPA duties. See Pl.’s Mot. at 19; Pl.’s Reply at 9, ECF No. 32; see also Compl. ¶ 9 (seeking “an injunction preventing any future liquidations of tariff payments made under the invalidated executive orders” and “reliquidation of any IEEPA duties payments that have already been 1 This case was commenced prior to the Supreme Court’s holding in Learning Resources v. Trump, 607 U.S. 229 (2026). As a result, Plaintiff defines the “Challenged Tariff Orders” as those that the U.S. Court of Appeals for the Federal Circuit held to be unlawful. Compl. ¶ 31; see V.O.S. Selections, Inc. v. United States, 149 F.4th 1312, 1340 (Fed. Cir.), cert. granted, 146 S. Ct. 73 (Mem.) (2025), and aff’d sub nom., Learning Res., Inc. v. Trump, 607 U.S. 229 (2026) (affirming “the CIT’s holding that the Trafficking and Reciprocal Tariffs imposed by the Challenged Executive Orders exceed the authority delegated to the President by IEEPA’s text” and “the CIT’s grant of declaratory relief that the orders are ‘invalid as contrary to law’”). 2 These dates represent what Plaintiff believes are the first and last dates that International Emergency Economic Powers Act duties were unlawfully collected, prior to the commencement of this lawsuit. Compl. ¶ 7. 3 Although Plaintiff pleads Rule 23(b)(3) in the alternative, the court finds that class certification under subsection 23(b)(2) is appropriate. See Pl.’s Mot. at 20. Accordingly, this opinion will primarily discuss the requirements of subsection 23(b)(2). 4 Liquidation is the “final computation or ascertainment of duties on entries for consumption or drawback entries.” 19 C.F.R. § 159.1. “Reliquidation is the re-calculation of the duties . . . accruing on an entry.” Shinyei Corp. of Am. v. United States, 355 F.3d 1297, 1310 n.8 (Fed. Cir. 2004). An entry is considered “finally liquidated” when it has been liquidated for more than 90 days and is thus beyond the period for voluntary reliquidation by U.S. Customs and Border Protection that is set out in 19 U.S.C. § 1501. Court No. 26-01088 Page 3 liquidated”). The court has previously ordered reliquidation of entries in more than 4,000 lawsuits brought by individual importers. 5 See, e.g., Order (Apr. 17, 2026), V.O.S. Selections, Inc. v. United States, No. 25-00066, ECF No. 82; Order (July 15, 2026), Princess Awesome, LLC v. United States, No. 25-00078, ECF No. 25. For Plaintiff, the relief provided to a class of importers would be “the same and precisely as effective as the injunctive relief this Court has already provided to the individual importers before it.” Pl.’s Reply at 9. Defendants (the “Government”) oppose Plaintiff’s motion. See Defs.’ Resp. Opp’n Mot. Class Certification and Appointment of Class Counsel (“Defs.’ Resp.”), ECF No. 18. The motion for class certification has been fully briefed, and oral argument was held on August 19, 2026. See Transcript of Oral Argument, ECF No. 37. For the reasons that follow, the court grants Freestyle’s motion and certifies the proposed class pursuant to USCIT Rule 23(b)(2). 5 The order in the individual lawsuits provides for the reliquidation of finally liquidated entries. The order directs Customs to reliquidate, without regard to IEEPA duties, any and all of Plaintiffs’ entries that have been liquidated for more than 80 days and on which Plaintiffs made estimated deposits pursuant to IEEPA. For the purposes of this order, reliquidation of entries that have been liquidated for more than 80 days is subject to Plaintiffs’ counsel’s submission to U.S. Customs and Border Protection of Plaintiffs’ importer of record identification number(s), in accordance with instructions to be provided by U.S. Customs and Border Protection and conveyed to Plaintiffs’ counsel. Also, for the purposes of this order, reliquidation shall occur only following U.S. Customs and Border Protection’s acceptance of Plaintiffs’ CAPE declarations. Order (July 15, 2026), Princess Awesome, LLC v. United States, No. 25-00078, ECF No. 25. Court No. 26-01088 Page 4 STATEMENT On February 20, 2026, the Supreme Court held in Learning Resources, Inc. v. Trump, that “IEEPA does not authorize the President to impose tariffs.” 6 607 U.S. 229, 255 (2026). On March 2, 2026, the U.S. Court of Appeals for the Federal Circuit (the “CAFC”) returned a mandate 7 to this Court in the matter now captioned as V.O.S. Selections, Inc. v. United States (“V.O.S.”). See Mandate (Mar. 2, 2026), V.O.S. Selections, Inc. v. United States, No. 25-00066, ECF No. 73. On March 4, 2026, the court held a hearing in a related case, and on the same day issued an order that directed the liquidation or reliquidation of certain entries of merchandise without regard to IEEPA duties. See Order (Mar. 4, 2026), Atmus Filtration, Inc. v. United States, No. 26-01259, ECF No. 21 (covering unliquidated entries and entries for which liquidation was not final). Thereafter, the order was amended, to include finally liquidated entries in its scope, and then docketed in other cases. Order (Apr. 7, 2026), Euro-Notions Florida, Inc. v. United States, No. 25-00595, ECF No. 12; Order (Apr. 17, 2026), V.O.S. Selections, Inc. v. United States, No. 25-00066, ECF No. 82; 6 The Supreme Court’s use of the Learning Resources caption is a little confusing, since the case commenced by Learning Resources, Inc. was ultimately dismissed for lack of jurisdiction. The case whose mandate was ultimately returned to this Court was captioned V.O.S. Selections, Inc. v. United States. This is because the Supreme Court’s Learning Resources decision finally resolved appeals in two consolidated cases: V.O.S. Selections, Inc. v. United States, which originated in this Court, and Learning Resources, Inc. v. Trump, which originated in the U.S. District Court for the District of Columbia. The Supreme Court found that that the V.O.S. case fell “within the exclusive jurisdiction of [the U.S. Court of International Trade],” under 28 U.S.C. § 1581(i)(1), and that the U.S. District Court for the District of Columbia lacked jurisdiction to hear Learning Resources. See Learning Res., 607 U.S. at 240 n.1; see also Learning Res., Inc. v. Trump, No. 25-5202, 2026 WL 1514346, at *1 (D.C. Cir. Apr. 3, 2026) (remanding to the District Court with instructions to dismiss the case for lack of jurisdiction). 7 On February 27, 2026, just one business day prior to the CAFC’s mandate, the Government filed its opposition to the immediate issuance of the mandate, indicating that the Court should “withhold issuance of the mandate for 90 days [after the Supreme Court sends down its judgment] to allow the political branches an opportunity to consider options.” Defs.-Appellants’ Opp’n to Mot. for Immediate Issuance of the Mandate & Cross-Mot. to Stay the Mandate at 3, V.O.S. Selections, Inc. v. United States, No. 25-1812 (Fed. Cir. Feb. 27, 2026), ECF No. 171. Court No. 26-01088 Page 5 Order (Apr. 17, 2026), AGS Co. Auto. Sols. v. United States, No. 25-00255, ECF No. 43; Order (Apr. 17, 2026), Grant & Bowman, Inc. v. United States, No. 25-00689, ECF No. 14. Ultimately, the order provided that, with respect to any and all unliquidated entries that were entered subject to IEEPA duties, U.S. Customs and Border Protection is hereby directed to liquidate those entries without regard to the IEEPA duties. Any liquidated entries for which liquidation is not final shall be reliquidated without regard to those duties. Any liquidated entries for which liquidation is final shall be reliquidated without regard to the IEEPA duties. Order (Apr. 17, 2026), V.O.S. Selections, Inc. v. United States, No. 25-00066, ECF No. 82. In other words, the order directed a recalculation of the duties imposed on entries, so that any amount owed no longer included the unlawfully collected IEEPA duties. On June 3, 2026, the Government appealed to the CAFC that portion of the order providing for liquidation or reliquidation of all affected entries. See, e.g., Defs.’ Notice of Appeal, V.O.S. Selections, Inc. v. United States, No. 25-00066, ECF No. 91, appeal docketed, No. 26-1895 (Fed. Cir. June 3, 2026). The Government and V.O.S. Selections, Inc. have filed their respective briefs in the appeal, and the CAFC’s decision will be rendered in due course. On March 4, 2026, when the initial order was issued, it was estimated that unlawfully collected duties amounting to $166 billion had been assessed on 53 million entries, involving roughly 330,000 importers of record. See Decl. Brandon Lord (Mar. 6, 2026) ¶ 12, Atmus Filtration, Inc. v. United States, No. 26-01259, ECF No. 31. It was also estimated that interest on the unlawfully imposed duties was “accumulating every day, with approximately $650 million accruing per month.” 8 Order (Mar. 6, 2026), Atmus Filtration, Inc. v. United States, No. 26-01259, 8 This monthly accrual rate was based on a roughly 4.5% interest rate. The actual rate of interest is determined by the Internal Revenue Service and published quarterly in the Federal footnote continued . . . Court No. 26-01088 Page 6 ECF No. 34 (“If the entries are not liquidated before the end of the year, it is further estimated that $10 billion of interest will have accrued.”). Following issuance of the initial order, and its denial of the Government’s oral motion for a stay of the order, the court held what it termed a settlement conference on March 6, 2026. At that conference the Government recognized that it was obligated to make IEEPA refunds, and outlined the manner in which it proposed to do so. Thereafter, U.S. Customs and Border Protection (“Customs”) proposed, and then implemented, the Consolidated Administration and Processing of Entries (“CAPE”) program, providing an automated mechanism for the liquidation and reliquidation of entries on which IEEPA duties had been collected. 9 Because of the “unprecedented volume of entries for [Customs] to update,” CAPE’s “efficiency gains” have been important for “both importers and [the G]overnment.” Decl. Susan S. Thomas (June 4, 2026) ¶ 9, V.O.S. Selections, Inc. v. United States, No. 25-00066, ECF No. 98-1. Notably, these gains in efficiency were made possible by the aggregation of entries under each importer of record number, rather than having them liquidated on an entry-by-entry basis. Register. See International Emergency Economic Powers Act (IEEPA) Duty Refunds, Frequently Asked Questions, U.S. CUSTOMS AND BORDER PROTECTION, https://www.cbp.gov/trade/programs- administration/trade-remedies/ieepa-duty-refunds (providing a link to the Federal Register under “Will I receive interest on my refund? How is that calculated?”) (last visited Oct. 8, 2026). 9 CAPE is a new function within Customs’ long-standing system of record for imported merchandise—the Automated Commercial Environment, or ACE—that is designed to update, liquidate, or reliquidate entries, and to calculate refunds, along with interest owed, for entries that were subject to IEEPA duties. In CAPE, an importer aggregates its entries so that they are liquidated as a group rather than separately. CAPE has four integrated components: Claim Portal, Mass Processing, Review and Liquidation/Reliquidation, and Refund. See Decl. Brandon Lord (Mar. 12, 2026) ¶ 2, Atmus Filtration, Inc. v. United States, No. 26-01259, ECF No. 39. To liquidate or reliquidate qualifying entries in CAPE, the importer must file a “CAPE declaration” that consists “of the list of entries for which refunds of IEEPA duties are being requested.” See International Emergency Economic Powers Act (IEEPA) Duty Refunds, Frequently Asked Questions, U.S. CUSTOMS AND BORDER PROTECTION, https://www.cbp.gov/trade/programs- administration/trade-remedies/ieepa-duty-refunds (last visited Oct. 8, 2026). Court No. 26-01088 Page 7 The CAPE program has been a remarkable success. As of October 2, 2026, approximately $136.6 billion in potential and certified refunds has been accepted for processing in CAPE, and of that amount, approximately $126 billion in duties plus interest has been refunded. See Decl. of Brandon Lord (Oct. 6, 2026) ¶ 5, Freestyle World, Inc. v. United States, No. 26-01088, ECF No. 58. That is, 215 days after the CAFC issued the mandate in the V.O.S. case, more than 75% of the $166 billion of unlawfully collected IEEPA duties, plus interest, has been refunded using CAPE. Id.; Mandate (Mar. 2, 2026), V.O.S. Selections, Inc. v. United States, No. 25-00066, ECF No. 73. Customs has regularly expanded the types of entries that are accepted by CAPE, including the acceptance of finally liquidated entries whose reliquidation was directed by the court order that was docketed in more than 4,000 individual cases. 10 But the progress on liquidation and reliquidation, by importers’ voluntary use of CAPE, will one day come to an end. Some importers of record have not taken advantage of CAPE. It is believed that these are overwhelmingly small importers who, because of the cost or effort involved in filing a CAPE declaration, or because they are unaware of the program, will never take advantage of CAPE. In addition, CAPE itself does not accept certain categories of entries for processing, including finally liquidated entries of non-plaintiff importers of record. Should further action not be taken, we are left with the prospect of the U.S. Department of the Treasury (“Treasury”) retaining billions of dollars of unlawfully collected duties, and tens of thousands of importers of record being denied the liquidation or the reliquidation of their entries. Without these liquidations or reliquidations, these tens of thousands of importers will not receive the refunds they are owed. 10 As of October 7, 2026, more than 4,000 nearly identical cases have been filed involving around 7,000 plaintiffs. Court No. 26-01088 Page 8 Indeed, were CAPE to cease to function today approximately $30 billion in unlawfully collected duties would remain on deposit in the Treasury. There are, however, other avenues that can provide for liquidation and reliquidation of entries and refunds, including class actions. On August 6, 2026, the court held a Rule 23 class certification hearing in the V.O.S. case. On August 19, 2026, the court held a Rule 23 hearing for a class certification in this case for a proposed class that is different from that proposed in V.O.S., and which seeks a different remedy. In V.O.S. the remedy sought would provide access to CAPE for more types of entries. In this Freestyle case, the relief sought is an injunction directing liquidation or reliquidation of all entries without regard to IEEPA duties. Today, the court is certifying a class in the hope, and expectation, that this certification will lead to the liquidation or reliquidation of all of the entries on which the unlawful IEEPA duties were imposed, and the refund of those duties to the importers of record that paid them. ANALYSIS USCIT Rule 23, which mirrors Rule 23 of the Federal Rules of Civil Procedure (“FRCP”), governs class actions in this Court. Parties moving for class certification must show, as a threshold matter, that all of the requirements of Rule 23(a) are satisfied. See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011) (“A party seeking class certification must affirmatively demonstrate his compliance with the Rule—that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.”). The requirements of Rule 23(a) are (1) numerosity, i.e., a class “so numerous that joinder of all members is impracticable”; (2) commonality, i.e., “there are questions of law or fact common to the class”; (3) typicality, i.e., “the claims or defenses of the representative parties are typical of the claims or defenses of the class”; and (4) adequacy of representation, i.e., “the representative parties will fairly and Court No. 26-01088 Page 9 adequately protect the interests of the class.” USCIT R. 23(a); see also Wal-Mart, 564 U.S. at 345 (quoting FRCP 23(a)). In addition to meeting these requirements, a proposed class “must satisfy at least one of the three requirements listed in Rule 23(b).” Wal-Mart, 564 U.S. at 345. In this case, Plaintiff argues that all of Rule 23(a)’s requirements are met and seeks certification of an injunctive class under Rule 23(b)(2). Rule 23(b)(2) provides that a class action may be maintained if “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” USCIT R. 23(b)(2). Plaintiff also seeks appointment of proposed class counsel, under Rule 23(g)(4). See Pl.’s Mot. at 11-27. For its part, the Government opposes certification by maintaining that the requirements of Rules 23(a) and 23(b) have not been met, and that Plaintiff’s motion is untimely under Rule 23(c). The Government makes no argument regarding the adequacy of proposed class counsel. See Defs.’ Resp. at 3-20. For the reasons that follow, the court finds that the motion for class certification is timely under Rule 23(c); the requirements of Rule 23(a) have been met; class certification is appropriate under Rule 23(b)(2); and that Plaintiff’s proposed class counsel will be able to “fairly and adequately represent the interests of the class,” as required by Rule 23(g)(4). I. Plaintiff’s Motion for Class Certification Is Timely To begin with the Government’s arguments in opposition, the court considers whether Plaintiff’s motion for class certification is timely, and finds that it is. Rule 23(c) provides that “[a]t an early practicable time after a person sues or is sued as a class representative, the court must determine by order whether to certify the action as a class action.” USCIT R. 23(c)(1)(A). When determining whether a motion for class certification is Court No. 26-01088 Page 10 timely, a look at the history of Rule 23 is instructive. In 2003, the phrase “at an early practicable time” replaced the more urgent “as soon as practicable” formulation of the earlier version of the rule, “giv[ing] courts more time to address certification.” See 3 William B. Rubenstein, Newberg and Rubenstein on Class Actions § 7:5 (6th ed. 2026) (“By excising the ‘as soon as’ formulation, the new language gives courts more time to address certification, bringing the rule in line with what had become a de facto practice even under the older, more urgent language.”). By its terms, Rule 23(c) does not limit the time in which a party may make a motion for class certification. Rather, it speaks to when a court must determine whether to certify a class. Amati v. City of Woodstock, 176 F.3d 952, 957 (7th Cir. 1999) (Rule 23(c) “requir[es] the district judge to make an early determination whether the suit is to proceed as a class action and who shall be bound by the judgment as members of the class.”). Nonetheless, the Government argues that “Plaintiff’s class-certification request is too late.” Defs.’ Resp. at 5. The Government does not argue that it would be actually prejudiced by class certification now. Rather, it claims that it would be somehow unfair for the court to rule on the motion because “Plaintiff filed its complaint on behalf of a putative class just one day before the Supreme Court ruled on the merits [in Learning Resources] in February 2026, and then it delayed yet four more months, without explanation, to finally request class certification in June 2026.” Id. The Government seems to suggest, without ever explicitly saying so, that it would have behaved differently had it been aware at the time this case was filed (or, for that matter, as the V.O.S. case was wending its way through the courts) that a class action was in the offing. In addition, the Government insists that allowing the motion to proceed would permit Plaintiff to engage in “one-way intervention,” a practice that “could enable absent class members Court No. 26-01088 Page 11 ‘to benefit from a favorable judgment without subjecting themselves to the binding effect of an unfavorable one.’” Id. at 6 (quoting Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538, 547 (1974)). The court is not convinced that Plaintiff’s motion for class certification is “too late.” On February 19, 2026, Plaintiff commenced this action by filing its summons and “Class Action Complaint.” It is worth noting that, as the Government seems to recognize, Plaintiff “technically raised the possibility of a class before the final merits decision,” 11 early on, by styling its complaint as a “Class Action Complaint,” and alleging all of the requirements of Rule 23 for class certification. Defs.’ Resp. at 6; see Compl. ¶¶ 54-81 (“Class Allegations”). Thus, it is difficult to see any real element of surprise when Plaintiff made its motion for class certification on June 23, 2026. Nor could the Government have thought for one moment that the Supreme Court’s answer to the legal question posed in Learning Resources would apply only to the plaintiffs in that case. The Supreme Court’s holding, that IEEPA did not authorize the President to impose duties, applied to all of those who paid the unlawful duties. While the Government may have been careful to refer to “plaintiffs,” when stipulating, as it did in the V.O.S. case, that it would not contest this Court’s authority to order reliquidation of the V.O.S. plaintiffs’ entries should they prevail in that case, 12 it 11 Interestingly, the Government characterizes the Supreme Court’s decision in Learning Resources as “the final merits decision.” That decision held that IEEPA did not authorize the President to impose tariffs. It did not hold that the plaintiffs in that case were entitled to liquidation or reliquidation without regard to IEEPA duties or that the refund of estimated deposits would result from those actions. While the court agrees that liquidation or reliquidation, and any resulting refunds, is the only remedy available under the facts presented here, that does not mean that Learning Resources was a final merits decision in this case. 12 See, e.g., Defs.-Appellants’ Emergency Mot. Stay Pending Appeal & Immediate Admin. Stay at 25, V.O.S. Selections, Inc. v. United States, No. 25-1812 (Fed. Cir. May 29, 2025), ECF No. 6 (“If tariffs imposed on plaintiffs during these appeals are ultimately held unlawful, then footnote continued . . . Court No. 26-01088 Page 12 is simply incredible that the Government was caught off guard when Freestyle and the proposed class banded together to seek reliquidation relief as a class. See V.O.S. Selections, Inc. v. United States, 49 CIT __, __, 772 F. Supp. 3d 1350, 1383 (2025) (this Court’s decision of May 28, 2025, granting summary judgment in favor of plaintiffs) (“There is no question here of narrowly tailored relief; if the challenged Tariff Orders are unlawful as to Plaintiffs they are unlawful as to all.”). Also, the court cannot credit the Government’s claim that by filing its motion after the Learning Resources decision, Plaintiff has engaged in prohibited one-way intervention. The rule against one-way intervention “bars potential class members from waiting on the sidelines to see how the lawsuit turns out and, if a judgment for the class is entered, intervening to take advantage of the judgment.” Amati, 176 F.3d at 957. The one-way intervention worry is that a potential class member might, after a merits decision in the underlying case, choose to intervene (i.e., opt in) or leave the class (i.e., opt out) already knowing whether the plaintiff has won or lost, and thus knowing what will be in its best interest. Here no such worry exists. First, it is worth keeping in mind that there has been no merits determination in Freestyle. While the controlling law was decided by the Supreme Court in Learning Resources, that law has yet to be applied to Freestyle’s facts. Although the result of this application of the law to the facts, and a resulting injunction, may be a mere formality in the minds of many, it remains the case that the government will issue refunds to plaintiffs, including any post-judgment interest that accrues.”); Defs.’ Mot. Stay Prelim. Inj. Pending Appeal at 13, Learning Res., Inc. v. Trump, No. 25-1248 (D.D.C. June 2, 2025), ECF No. 41 (“For any plaintiff who is an importer, even if a stay is entered and defendants do not prevail on appeal, plaintiffs will assuredly receive payment on their refund with interest. . . . Plaintiffs will not lose their entitlement to a refund, plus interest, if the preliminary injunction is stayed, and they are guaranteed payment by defendants should the Court’s decision be upheld. And defendants do not oppose the reliquidation of any entries of goods subject to IEEPA duties paid by plaintiffs that are ultimately found to be unlawful after appeal.”). Court No. 26-01088 Page 13 a merits decision has not been made here, and that the fortunes of the proposed class members will therefore rise or fall with those of Freestyle itself. Next, the class Plaintiff wants certified is unsusceptible to the worry that parties can choose to enter or leave the proposed class. Plaintiff seeks class certification under USCIT Rule 23(b)(2), which does not permit a potential class member to either opt in or opt out. While Rule 23 contains an opt out provision for classes certified under Rule 23(b)(3), there is no such provision for classes certified under Rule 23(b)(2). 13 See USCIT R. 23(c)(2)(A)-(B). Nor is the possibility of opting into a class present anywhere in the Court’s rules. Thus, membership in a class certified under Rule 23(b)(2) is mandatory and fixed. The primary worry about one-way intervention is that if a party is permitted to become a plaintiff after the merits have been decided, it will be able to take advantage of a favorable decision without having risked an unfavorable one. Because (1) the merits here in Freestyle have not been determined, and (2) there is no possibility of a potential class member joining or leaving the proposed class, there can be no worry of a potential class member “waiting on the sidelines to see how the lawsuit turns out.” Amati, 176 F.3d at 957. Finally, as previously noted, Rule 23(c) speaks to when the court must certify the class. It was unclear to the court, in the first months after the launch of CAPE, if certifying a class would be necessary or appropriate. It is now clear that it is. 13 The Government cites the case of Ablan v. United States, 162 F.4th 1364 (Fed. Cir. 2025) as supporting its one-way intervention arguments. That case, however, involved a class certification under the U.S. Court of Federal Claims Rule 23(b), which directs that “the court will include in the class any member who requests inclusion.” RCFC R. 23(c)(2)(B)(v). Thus, in the Court of Claims opt ins are permitted, where under USCIT Rule 23(b)(2), they are not. Court No. 26-01088 Page 14 Having considered these and the other arguments raised in the parties’ papers and at oral argument, the court finds that the motion for class certification was made “[a]t an early practicable time,” in accordance with Rule 23(c)’s requirement. II. USCIT Rule 23(a)’s Requirements Are Satisfied Under Rule 23(a), a party seeking class certification must demonstrate that the proposed class meets the four requirements of subsection (a): (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation. Wal-Mart, 564 U.S. at 349. The Government’s primary objection is that the commonality requirement is not met. Defs.’ Resp. at 8. The court finds, however, that Freestyle has demonstrated that each of the four requirements is satisfied. A. Numerosity The numerosity requirement concerns whether a class is “so numerous that joinder of all members is impracticable.” USCIT R. 23(a)(1); see also Wal-Mart, 564 U.S. at 345 (quoting FRCP 23(a)(1)). Making this determination “requires examination of the specific facts of each case and imposes no absolute limitations.” Gen. Tel. Co. of the Nw., Inc. v. EEOC, 446 U.S. 318, 330 (1980). Generally, however, “courts find the numerosity requirement satisfied when a class includes at least 40 members.” Rannis v. Recchia, 380 F. App’x 646, 651 (9th Cir. 2010); Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir.), cert. denied, 515 U.S. 1122 (1995) (same); Ansari v. New York Univ., 179 F.R.D. 112, 114 (S.D.N.Y. 1998) (same). Plaintiff’s proposed class would include the portion of those 330,000 importers of record who paid IEEPA estimated deposits and have not filed one of the more than 4,000 separate lawsuits seeking IEEPA refunds. Pl.’s Mot. at 13-14. Because the proposed class includes some tens of thousands of importers, it satisfies the numerosity requirement of Rule 23(a)(1). Court No. 26-01088 Page 15 B. Commonality The Supreme Court has stated that, under Rule 23(a)(2), there must be at least one question of “law or fact common to the class.” USCIT R. 23(a)(2); see also Wal-Mart, 564 U.S. at 345 (quoting FRCP 23(a)(2)). Thus, in order to obtain class certification, Plaintiff must demonstrate “that the class members have suffered the same injury,” and “[t]heir claims must depend upon a common contention,” which is “of such a nature that it is capable of classwide resolution.” Wal- Mart, 564 U.S. at 350 (citation modified). What matters for this requirement is “the capacity of a class-wide proceeding to generate common answers apt to drive the resolution of the litigation.” Id. (quoting Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. REV. 97, 132 (2009)). Plaintiff argues that the commonality requirement is satisfied because the Government applied a common policy “imposing tariffs under IEEPA on importers of merchandise into the U.S., injuring the proposed Class as a whole.” Pl.’s Reply at 6-7. So, for Plaintiff, the “most obvious common question” with a potential answer that is “central to each proposed Class Member’s claim” is “whether the Challenged Tariff Orders are unlawful.” Id. at 7. Since Plaintiff filed its complaint, the Supreme Court has settled this question of law in a manner favorable to Plaintiff. The Supreme Court’s holding necessarily requires the liquidation or reliquidation of all entries without IEEPA duties, which will result in a class-wide resolution. See Learning Res., 607 U.S. at 255 (holding that “IEEPA does not authorize the President to impose tariffs”). The Government nevertheless maintains that Plaintiff has “failed to show that there is a common question of fact or law that is ‘central to the validity of each’ class member’s claim for which the Court may provide a ‘common answer[]’ in ‘one stroke.’” Defs.’ Resp. at 8 (quoting Wal-Mart, 564 U.S. at 350). It further asserts that the court “cannot provide common answers to Court No. 26-01088 Page 16 any of” Plaintiff’s proposed common questions. Id. This is because, for the Government, the proposed class consists of “individualized claimants with individualized claims [that] may require a specific form of relief.” Transcript of Oral Argument at 23. The Government thus contends that “[a]mongst the importing community . . . there’s a diversity of claims,” and the claimants’ “diversity of relief and the diversity [of the] claim[s] show why a class action isn’t an appropriate mechanism here.” Id. at 18, 29. The Government’s primary objection, then, is that Plaintiff’s claims are not capable of class-wide resolution because they are diverse. That the importers will receive different monetary amounts as refunds, however, does not defeat a finding of a “common question of law or fact” capable of class-wide resolution. Here, all importers of record share the common questions of whether the Government has lawfully imposed and collected IEEPA duties on their entries, and whether the Government must liquidate or reliquidate their entries without regard to the IEEPA duties. The first is a common question that was answered by the Supreme Court in Learning Resources. The second common question concerning the entitlement to liquidation and reliquidation is easily answered, as the liquidation tools are the logical method for determining liability. The issuance of an injunction directing liquidation or reliquidation would benefit all class members equally. That each plaintiff will receive a refund in a different amount does not alter the common resolution afforded by the injunction. This is because, once entitlement to a refund has been determined, “the calculation of monetary relief will be mechanical, formulaic, a task” for a computer program. Johnson v. Meriter Health Servs. Emp. Ret. Plan, 702 F.3d 364, 372 (7th Cir. 2012); see also Decl. Brandon Lord (Mar. 6, 2026) ¶ 6, Atmus Filtration, Inc. v. United States, No. 26-01259, ECF No. 31 (“No duty calculation adjustments or refunds are performed in paper format - only electronically in ACE.”); 19 U.S.C. § 1505(b) (“The Customs Service shall . . . refund any Court No. 26-01088 Page 17 excess moneys deposited, together with interest thereon, as determined on a liquidation or reliquidation.”). Once an injunction is issued, no further action will be required of the court. The injunction alone will provide this common relief. The mechanical, formulaic task of calculating refunds has already been performed by Customs millions of times. Customs’ highly automated CAPE program liquidates and reliquidates entries en masse. Indeed, by its own designation, two core components of CAPE are (1) “Mass Processing,” and (2) “Review and Liquidation/Reliquidation.” See Decl. Brandon Lord (Mar. 31, 2026) ¶ 2, Atmus Filtration, Inc. v. United States, No. 26-01259, ECF No. 51. CAPE’s mass processing capabilities include “the ability for [Customs] to review and adjudicate a CAPE Declaration, and the ability to modify entry summaries, as required.” See id. ¶ 6. Using this computerized system, Customs has already liquidated or reliquidated over 21.19 million entries, removing the IEEPA duties. Decl. Brandon Lord (Oct. 6, 2026) ¶ 4, Freestyle World, Inc. v. United States, No. 26-01088, ECF No. 58. Following liquidation or reliquidation using CAPE, Customs has certified and sent to the Treasury for disbursement, $126 billion in refunds for thousands of individual importers. Id. ¶ 5. The Supreme Court’s holding in Learning Resources (that “IEEPA does not authorize the President