Like a bad on-again, off-again relationship, tariffs were “off” early Friday when SCOTUS issued its opinion in Learning Resources v. Trump – ruling 6-3 that the International Emergency Economic Powers Act doesn’t give the president the authority to unilaterally impose a tax. Before the day was out, the White House issued a proclamation imposing a (mostly) across-the-board 10% import – beginning tomorrow, February 24th, lasting for a limited time period of 150 days, and subject to a list of product exceptions. Here’s the fact sheet.

Of course, in today’s world, you can’t just rely on an official fact sheet. The president said in a Truth Social post on Saturday that he planned to raise the Section 122 tariff to the statutory cap of 15% – and also indicated that the administration would continue to work to issue new tariffs. See this Politico article for more about that, this summary from GHY International (a customs brokerage) for key points on how the Section 122 tariff is expected to apply, this Global Trade Alert explainer for a comparison of the Section 122 tariffs to the IEEPA tariffs that were struck down, and this NYT article for other potential tariff avenues.

Similar to last year, this tariff drama is playing out at a time when many companies are finalizing their Form 10-K. For better or worse, companies have become somewhat accustomed to flip-flopping and uncertainty on this topic, so that may already be built into many tariff-related disclosures. We’ve also blogged about tariffs in one way or another over 3 dozen times since February of last year (compared to 4 mentions in the entire history of the blog before that) – and we continue to post resources in our “Trump Administration Tariffs” Practice Area for members – so these issues are relatively fresh in disclosure lawyers’ minds.

Nevertheless, the disclosure issues still require a fresh think each time around because the facts and circumstances are always evolving. And although it would be great if you could simply unwind your tariff disclosure to pretend like this all never happened, the reality is that things are still very uncertain and it’s unlikely we’ll return to the old status quo. So, I’ll recap a few key points:

– Risk factors should discuss material company-specific impacts (and ongoing uncertainties). This AP article gives an example of how tariffs (and their recission) affect companies in different ways. Keep in mind that even if a company is sourcing domestically, the global trade war may affect local supply and pricing. We’ve blogged many times about different types of risks that could arise – a few examples relate to prices, costs of goods, inflationary impact, supply chain disruptions, trade deal uncertainty, and adaptation decisions.

– Non-GAAP issues could come into play if the company has been adjusting for tariff impacts.

– As Meredith shared last fall, companies have been discussing tariffs in the MD&A (consider similar material issues as noted above for risk factors), Quantitative & Qualitative Disclosures About Market Risks, and even in the financial statements in some instances. Affected companies will need to consider whether to add, remove, or modify any of these disclosures.

– Reuters reported that thousands of companies have sued the administration over tariffs and are seeking refunds. Whether and when refunds will be distributed is very much up in the air. Especially for large companies, it may be a stretch to say that this type of thing is a material legal proceeding not incidental to the business, but securities lawyers should think through Item 103 of Regulation S-K to make sure. It doesn’t seem like this type of proceeding would generally involve a loss contingency either – but I’m not an accountant (or a litigator)! Companies should make sure to evaluate their particular circumstances.

– Liz Dunshee