Today’s trade and customs enforcement environment poses significant risks for any company involved in importing and supplying products globally. Unprecedented tariffs are being levied against an expanding array of countries and industry sectors, leaving importers, buyers and those involved in global supply chains to navigate a complex and demanding compliance landscape. Nowhere is compliance risk more pronounced than in the United States, where the Trump Administration has signaled its commitment to the aggressive criminal and civil enforcement of customs and trade laws.
US Customs and Border Protection (CBP) has shifted its posture from trade facilitation to enforcement. The agency is increasingly using data analytics and other sophisticated tools to scrutinize trade flows and target noncompliance by importers and those who deal in imports further along the chain. As a result, CBP is increasingly issuing information requests to importers, notifying companies that they are under risk assessments or formal audits, and handing out “pre-penalty notices” alleging varying degrees of negligence and fraud, along with demands for substantial fines and penalties.
Further escalating the pressure, the Departments of Justice (DOJ) and Homeland Security have launched a cross-agency Trade Fraud Task Force to target tariff evasion, and DOJ—which has broadened the ambit of its own Market, Government and Consumer Fraud Unit to focus on criminal enforcement of trade laws—is ramping up its use of the False Claims Act (FCA) as a tool for customs and tariff enforcement, in addition to existing tools for combatting fraud, like 19 U.S.C. § 1592. This posture stems from the US government’s heightened focus on ensuring importers are paying tariffs and on the government’s collection of those increased revenues. The change in focus also highlights the recognition that customs enforcement serves as a frontline mechanism for national security by intercepting illicit goods that may threaten public safety or fund transnational criminal and terrorist networks.
WilmerHale, with its extensive trade capabilities, deep government experience, and notable strengths in civil and criminal enforcement defense, is ideally positioned to help clients prepare for any contingency in this new customs enforcement landscape.
Our International Trade Group handles complex, high-value customs matters for importers before CBP and customs agencies around the world. We advise clients on tariff mitigation strategies; assist in optimizing their trade data elements, such as country of origin, HTS classification, and customs valuation; and strategically assess their import risk. Our lawyers regularly interface with CBP on information requests, penalty notices, risk assessment inquiries, and focused assessment audits, and we have submitted prior disclosures to CBP to correct significant misstatements of duty liability. We have also advised clients on protesting and litigating adverse CBP determinations before US federal courts, with significant commercial consequences.
When information requests lead to subpoenas, Civil Investigative Demands, investigations, and enforcement actions, we stand ready to mount an effective strategic response. Our leading FCA and White-Collar Defense and Investigations teams have substantial experience representing companies and individuals facing civil and criminal liability, including in matters involving DOJ’s Fraud Section. We have a long and successful track record responding to government inquiries and investigations into business practices; representing clients in FCA litigation brought by qui tam relators and the government, including DOJ and state attorneys general; and defending companies and individuals at trial in multi-agency and multijurisdictional matters. Our team also includes former senior government officials who oversaw customs fraud investigations.
Our clients operate in sectors ranging from construction to consumer products, energy, technology, manufacturing, pharmaceuticals, and healthcare.
