"Is Any of that Ours?": A Supply-Chain Risk Analysis for Importers who Are Issued IEEPA Tariff Refunds

Fast forwarding from the time the Supreme Court issues an opinion (assuming it is favorable to importers), the Court of International Trade (CIT) orders Customs and Border Protection to issues refunds, and the long-awaited IEEPA tariff refunds and interest are deposited into the importer's account - what can be expected? It is possible that within days of refunds being issued (and likely before), the importer will start getting calls and letters asking, in substance, “Is any of that ours?”

The entities asking will not be random. They will be the importer’s largest and most sophisticated counterparties such as distributors, supermarket retail chains, restaurant suppliers, retailers, and brand-linked buyers, many of whom paid higher invoice prices during the tariff period and will treat a later refund as evidence that those increases should be unwound. Some will cite contract language. Others will cite fairness. A few will arrive with counsel and a demand package that reads like a complaint already drafted.

That is the point of this article. The central question is not who can sue the United States or how to preserve a claim in the Court of International Trade (those answers can be found in other articles: https://www.vadamlaw.com/post/file-your-company-s-ieepa-reciprocal-tariffs-lawsuit-today-to-protect-refund-rights-and-court-reli). The question addressed here is what happens after an importer receives an IEEPA refund: which downstream parties are likely to assert private rights to it, what claims they will actually bring, what facts they will use to frame those claims, and how an importer can evaluate—quickly and defensibly—whether to resist, negotiate, or restructure relationships before a refund becomes a catalyst for supply-chain litigation.

Who Is Likely to Assert These Claims

Although the legal theories discussed below sound abstract, the parties who are most likely to assert them are not. The practical exposure for an Importer of Record does not typically arise from small buyers or isolated transactions. It arises from repeat commercial counterparties who have scale, documentation, and an economic incentive to pursue recovery. In most supply chains, the entities positioned to make claims fall into several identifiable categories.

The first and most probable claimants are distributors and wholesalers. These entities often purchase in large volumes, operate under master supply agreements, and maintain accounting systems that track pricing changes over time. A distributor that absorbed tariff-driven price increases across multiple purchase orders may view a later importer refund as directly tied to its own margin erosion. Distributors also tend to have contractual audit rights and long-standing commercial relationships that provide both leverage and evidentiary records. Where a distributor can show a consistent pattern of tariff-related price increases, it becomes the most legally credible downstream claimant, particularly if the governing agreement contains any language touching on duties, surcharges, or price adjustments.

The second group consists of large supermarket chains and national retailers. These entities are less likely to frame their initial position as litigation and more likely to frame it as commercial renegotiation, but the legal theories remain the same. Large retailers frequently maintain sophisticated procurement departments, internal legal teams, and historical pricing analytics. They may not immediately file suit for unjust enrichment or breach of contract; instead, they often use the existence of a refund as a basis for forward-looking credits, margin adjustments, or revised supply terms. Their leverage stems from purchasing power rather than doctrinal purity. From an importer’s perspective, these counterparties represent the highest practical risk, not because their legal claims are always stronger, but because their ability to shift business elsewhere can transform a weak legal theory into a strong commercial demand.

A third category includes restaurant suppliers, food-service distributors, and regional purchasing cooperatives. These entities occupy an intermediate position. They often lack the unilateral leverage of national retail chains but may possess sufficient transactional volume and internal record-keeping to support a targeted claim. In industries such as seafood, produce, and specialty imports—where tariff fluctuations were explicitly discussed in pricing communications—restaurant supply chains may be able to point to emails, invoices, or surcharge line items that appear to tie price increases directly to governmental duties. Their claims tend to arise not from abstract fairness arguments but from the importer’s own representations during the tariff period.

Brand owners and private-label licensors also appear with increasing frequency in this analysis. Where a brand owner contracted with an importer to source goods and the importer embedded tariffs into transfer pricing, the brand owner may argue that refunds alter the economics of the licensing or sourcing agreement. These disputes often blur the line between supply contracts and intellectual-property licensing arrangements, making them fact-intensive and documentation-heavy.

Finally, a developing but distinct group consists of third-party claim purchasers and litigation-finance entities. These actors do not appear in the traditional supply chain, but they enter the picture when an importer seeks to monetize contingent refund rights. Their presence can trigger objections from downstream buyers who believe the importer has transferred away an economic benefit that should have been shared. Although these entities typically assert rights through assignment contracts rather than equitable theories, their involvement can create multi-party disputes that complicate settlement dynamics and increase litigation risk.

Notably absent from this list are end consumers. Individual retail purchasers almost never possess standing or practical mechanisms to pursue tariff-related recovery, and the transactional cost of doing so far exceeds the potential recovery. The exposure for importers therefore concentrates upward in the commercial hierarchy rather than downward toward the retail public.

Consumers Will Not be Receiving Refunds or Asserting Claims

In practical terms, the entities most likely to make claims are those with three characteristics: transactional scale, documentary records, and either contractual hooks or commercial leverage. Importers evaluating their risk should therefore map not only what their contracts say, but who their counterparties are, how sophisticated their procurement operations may be, and whether historical communications inadvertently created expectations that a refund would be shared.

The entities transacting business with the importer will make equitable claims in the absence of contractual claims. These arguments are often couched in terms of unjust enrichment: "It is unjust under the circumstances for the importer to retain the benefits incurred upon them by (let's say) distributors because the importer was doubly compensated by elevating prices to account for IEEPA tariffs and now by the refunds."

The distributor passed these costs onto the retailer and the retailer onto the consumer. No one is refunding the consumer and the consumer, even if damages could be proven, does not have standing to sue. The short of it is: no one is refunding consumers. Later in this article I discuss how this defeats the "unjust enrichment" claim, and it may already seem clear to some.

Types of Claims

Importers should expect two categories of private claims. The first category is contractual. These are the claims that matter most, because contract language can convert a refund into a pass-through obligation even when the importer receives the refund from the government. The second category is equitable. These claims tend to be louder in rhetoric than in results, but they can still produce expensive disputes, especially where communications around tariff surcharges were sloppy or overly specific. A third development which is rapidly emerging in this space is the commoditization of contingent refunds through assignment and “claim purchasing,” which can create unexpected conflicts among the importer, the downstream buyer, and the party that acquires the importer’s rights.

Contractual Claims

Contractual claims will be the primary battleground because they do not require a court to agree that “fairness” demands redistribution; they require only that a court enforce what the parties already agreed to, explicitly or implicitly. The typical downstream plaintiff is a sophisticated distributor or retailer that purchases at scale and has leverage, documentation, and a litigation budget. The more sophisticated the counterparty, the more likely there is to be some clause—sometimes buried, sometimes vaguely drafted—that addresses duties, taxes, or price adjustments.

The first contractual theory is straightforward breach: the contract required the importer to adjust price downward if tariffs are reduced or refunded, and the importer did not. These clauses appear in many forms. Some are clean “price adjustment” provisions stating that prices will increase or decrease based on changes in customs duties. Others are cost-plus formulations, where duties are treated as a pass-through line item, and the importer is obligated to charge “actual duties” rather than a market price. Others are less direct but still dangerous: provisions that require the seller to pass along “rebates, credits, or refunds” from third parties when those refunds relate to the goods, or audit rights that allow the buyer to demand documentation of duty payment and recovery.

A downstream plaintiff will frame the theory like this: the seller represented that the price increase was attributable to the IEEPA tariffs, the contract contemplates that duties are a pass-through cost, and a refund of duties is therefore a refund of amounts the buyer already paid. The plaintiff will not need to prove unjust enrichment or “windfall.” It will argue simple performance: “your contract required you to true-up; you did not; pay damages.”

Importers defeat these contractual claims by doing the work that most companies delay until they are served with a complaint. The first defense is definitional. Many contracts distinguish between duties and “price,” or between “governmental charges” imposed on the seller versus charges imposed on the buyer. If the contract treats duties as the seller’s cost of doing business and does not require itemization or pass-through, the buyer’s claim collapses into a general grievance about pricing, not an enforceable entitlement. The second defense is structure. In many industries, the pricing mechanism is purchase-order based, with each PO setting a fixed price and disclaiming modifications absent a written amendment. Where that structure exists and the contract is silent on refunds, the buyer faces a difficult argument that a refund reopens closed transactions. The third defense is evidentiary: if the contract requires the buyer to provide timely notice of disputes, or limits claims through waiver, integration, no-oral-modification, or limitations periods, those provisions can be outcome-determinative.

Importers also need to anticipate the “representation” variant of the contract claim. Even when the written contract is quiet, downstream parties may argue that the importer’s communications created an enforceable commitment. This theory appears as promissory estoppel, negligent misrepresentation, or a contract implied-in-fact based on the parties’ course of dealing. The risk here is not the existence of tariffs; it is the importer’s own messaging. If an importer told a buyer, in writing, “we are adding a 25% IEEPA tariff surcharge, and we will reverse it if the tariffs are later refunded,” that statement will be treated as more than marketing. It will be treated as an inducement. The importer may have inadvertently written the buyer’s complaint.

This is why importers should treat tariff-related communications the same way they treat force majeure notices and price increase notices: accurate, measured, and lawyer-reviewed. A seller can explain that tariffs increased costs and affected pricing without committing to rebate future recoveries. The more an importer tries to be “transparent” by tying a specific percentage increase to a specific tariff, the more it arms downstream parties with a future claim that the refund corresponds to that specific component.

Another contractual pressure point is assignment. A secondary market has developed where third parties offer to purchase contingent tariff refund claims from importers. Downstream buyers are beginning to scrutinize whether their contracts restrict such transfers. Many supply contracts contain anti-assignment clauses that prohibit assignment of rights “arising under” the agreement without consent. Buyers may argue that refund rights are part of the economic bargain and cannot be sold away. Importers may respond that refund claims are against the government and are not “under” the supply contract. That dispute will be intensely fact-specific and will turn on drafting, governing law, and how closely the contract ties pricing to duties. The practical point is that an importer contemplating a claim sale should not assume the contract permits it; the contract should be reviewed as carefully as if the importer were selling receivables.

Equitable Claims

If contractual language does not give the downstream party a clean path, the conversation usually shifts to equity. The most common equitable claim will be unjust enrichment. The narrative is familiar: the importer raised prices because of tariffs, the buyer paid the higher prices, the importer then recovered the tariffs, and keeping both creates an unfair windfall. Plaintiffs will often present this as a moral argument, but the legal elements matter. Unjust enrichment typically requires that the defendant received a benefit, the plaintiff conferred that benefit, and it would be inequitable for the defendant to retain it without payment to the plaintiff.

In the tariff refund context, the key vulnerabilities for the plaintiff are traceability and inequity. Traceability fails because pricing in real markets is not a spreadsheet where “tariff” equals line item equals identical amount. Importers do not always pass tariffs through. Sometimes they absorb part of them to maintain share. Sometimes they shift costs among products. Sometimes they negotiate better factory pricing to offset tariffs. Sometimes exchange rates and freight move more than the tariff itself. The buyer’s payment is for goods, not for a statutory charge. Even if the importer internally modeled tariffs into its pricing, that does not mean the buyer “conferred” the same benefit the importer later recovered from the government.

Inequity is also contested. Importers can credibly argue that even if they raised prices in response to tariffs, they assumed and financed the compliance and legal risk. If the government believed duties were underpaid, it would pursue the importer, not the distributor. The importer’s surety bond is on the line. The importer incurred legal fees, cash-flow burdens, and uncertainty while the law was litigated. A refund is not a gratuity; it is a reversal of an unlawful exaction imposed on the importer. Courts evaluating unjust enrichment in commercial settings are skeptical of retroactively reallocating negotiated prices absent clear wrongdoing.

Equitable claims also encounter a common doctrinal barrier: where a contract governs the relationship, equity generally does not rewrite the bargain. A sophisticated buyer and seller who negotiated a pricing relationship will not easily persuade a court to impose restitution simply because one party later experienced a favorable change in its cost structure. The importer’s strongest response is therefore often conceptual: “this is not equity; this is buyer’s remorse about a market price.” If the buyer wanted refunds or price-adjustment rights, it could have negotiated them. Many did. Many did not.

A more aggressive equitable theory sometimes appears as constructive trust, accounting, or conversion-like allegations, usually where the buyer can point to specific communications characterizing the tariff amount as the buyer’s money being advanced to the seller. Those cases are dangerous not because courts love constructive trusts, but because the factual framing can make a judge think there was an agreement to hold funds for another’s benefit. Again, the importer’s best defense is prevention: avoid messaging that treats tariff price increases as segregated “collections” on behalf of the buyer, and avoid internal accounting practices that create the appearance of a pass-through escrow unless that is truly the commercial model.

A practical reality that should be said plainly is that even if a downstream party could establish an entitlement, the money will almost never “trickle down” to the consumer. Retail customers do not have standing to seek customs refunds, and consumer class actions premised on “I paid higher prices due to tariffs” face formidable causation and damages problems, as well as the basic principle that market prices change for countless reasons. The consumer gap is not a policy oversight; it is a reflection of how pricing, privity, and finished transactions are treated in American commercial law. Equitable claims and contractual claims are not mutually exclusive. A distributor may bring a contractual claim based on specifc language in the written agreement and an equitable claim for accounting based on that contractual relationship or understanding.

Questions Importers Should Be Asking Now

Importers preparing for refunds should be asking the questions that downstream parties will ask later, but with better discipline and better documentation.

The first question is: what, exactly, do our contracts say about duties, taxes, surcharges, and adjustments? Many companies assume the answer is “nothing,” only to find a clause that says prices must reflect increases and decreases in duties, or that the buyer is entitled to audit governmental charge pass-throughs.

The second question is: what did we tell our customers during the tariff period? A single email stating “this surcharge is temporary and will be refunded if the government returns the duties” can be more damaging than any ambiguous contract clause, because it supplies intent.

The third question is: did we treat tariff increases as cost-plus pass-throughs, or did we treat them as part of general pricing? The more the importer’s own records treat the tariff as a buyer-specific pass-through, the easier it becomes for a downstream party to argue that the refund is buyer money.

The fourth question is: do we have downstream counterparties with the leverage and incentive to litigate? Not every buyer will sue. Many will negotiate. A sophisticated importer should anticipate the negotiation posture and decide in advance whether to offer forward credits, renegotiate pricing, or take a firm position that refunds are retained absent express contractual obligation.

The fifth question is: are we contemplating selling or financing against these refund claims, and if so, do our supply contracts permit that? The claim-purchasing market is real, and it can be attractive, but it can also create a three-way dispute if contracts restrict assignment or if downstream parties claim the importer sold away something the buyer believed it had a right to share.

Conclusion

If IEEPA tariffs are curtailed, the next phase of the fight will not just be in the courts against the government. It will be in private commerce. Importers will receive refunds because the legal system treats the importer as the party the government charged and the party entitled to reversal. Downstream buyers will seek a share because commercial reality is that tariff costs often influenced pricing. The resolution will not come from abstract debates about “windfalls.” It will come from the text of contracts, the discipline of communications, and the practical leverage each side has when money arrives.

Importers who want to keep refunds should not wait for demands to arrive. They should treat this as a contract and litigation-risk project: identify refund-sharing hooks, eliminate harmful communications going forward, preserve a clean pricing narrative grounded in market pricing rather than pass-through collection, and develop a strategy for handling counterparties who will frame refunds as “their money.” Companies that do this early will negotiate from a position of clarity. Companies that do it after refunds arrive will negotiate from a position of urgency.

If your company is anticipating IEEPA-related refunds and wants a candid assessment of who could come after you and how to reduce that exposure, we can review your supply contracts, pricing provisions, audit clauses, and assignment restrictions and advise on practical risk controls before the refund cycle accelerates. You can schedule an appointment at scheduling portal or call 954.451.0792.

Disclosure: This article reflects my own personal views and analysis. It does not represent the views of any client, organization, or entity, and it is not intended as legal advice. The information may not reflect the most current legal developments. Readers should consult qualified legal counsel licensed in the appropriate jurisdiction and familiar with the specific facts of their situation before taking any action. Viewing or using this material does not create an attorney–client relationship.