RC: What legal and regulatory developments, if any, have you seen affecting customs compliance over the last 12 months or so?

Schwechter: Probably the most significant US customs compliance development in the last 12 months has been the en banc decision of the US Court of Appeals for the Federal Circuit in United States vs. Trek Leather, Inc., et al. A petition for a writ of certiorari seeking Supreme Court review of the decision has been filed. The Court of Appeals decision found that an importer’s owner and president could be held personally liable for failing to declare dutiable assists on company imports, even when there was no finding of fraud, and there was no determination that the corporate veil had been pierced. This decision has sparked significant concern among import compliance staff for a wide variety of companies, fearing that US Customs and Border Protection (CBP) might seek to hold them personally liable for import violations where their employers are the importers of record. While the particular facts at play in Trek Leather will most likely make the decision in that case most potentially applicable to activities involving small- and medium-sized importers, rather than to those of large multinational corporations, the potential impact of the decision could be broad. Furthermore, it may prompt import compliance staff for companies, in many cases, to seek from their employers some type of insurance or indemnification should CBP seek penalties against them, personally.

Apr-Jun 2015 Issue


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Jones Day

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