The legal strategy behind these lawsuits is not confined to any single sector. As attorneys Erik Swanholt and Kelsey Boehm from Foley & Lardner observed, plaintiffs have initiated class-action lawsuits against businesses across diverse industries and various levels of the supply chain—from food producers to logistics companies. While the specific accusations vary from case to case, the central legal argument remains consistent: corporations should not be allowed to pass tariff expenses onto consumers while simultaneously seeking government reimbursement for those same tariffs.
A legal advisory from Holland & Knight notes that “any business that has both transferred tariff costs to customers and is now pursuing refunds from the government may find itself facing litigation.”
Nintendo Seeks to Move Case to Arbitration
Given that the lawsuits are still in their initial phases, no court has yet issued a ruling on the fundamental legal questions involved, according to Holland & Knight. Companies have a range of possible defenses at their disposal. One common argument is that unjust enrichment cannot be claimed when there is already a formal contract governing the relationship between the parties.
“In many jurisdictions, the doctrine of unjust enrichment does not apply when the parties’ relationship is already governed by an express contract,” explained Holland & Knight partners Ashley Akers and Austin Rainwater.
Businesses may also argue that the fees in question were charged while the IEEPA tariffs were still legally valid and enforceable, as noted in the Holland & Knight advisory. From this perspective, the Supreme Court’s later ruling nullifying the tariffs does not automatically make past charges unlawful or create a retroactive duty to issue refunds.
Although the lawsuit against Nintendo does not include a breach-of-contract claim, the Holland & Knight advisory points out that other tariff-related cases have included this allegation. “This is the primary claim in many shipping and logistics disputes. Plaintiffs argue that tariff-related surcharges were not authorized under the relevant shipping agreements, service terms, or tariff schedules,” the firm stated.
As these cases progress, companies are expected to request that courts uphold mandatory arbitration clauses found in their terms and conditions. Nintendo has already taken this step, filing a motion to compel arbitration in the case involving Hoffert, citing evidence that he “affirmatively accepted contractual agreements with Nintendo at least twice.” In its motion to dismiss, Nintendo also stated that it “expressly reserves the right to move to compel Mr. Sharan’s claims to arbitration if discovery reveals his claims are arbitrable.”