By  on July 8, 2008

The U.S. Court of International Trade last week dismissed a lawsuit brought by Totes-Isotoner Corp. alleging that U.S. tariffs discriminate based on gender.

The court concluded that the company failed to show it is entitled to relief, but allowed Totes-Isotoner to continue with the suit if it amends the complaint. The company said it hasn't decided its next step. Totes-Isotoner filed the suit, which focuses on the disparity in U.S. customs-duty rates charged for men's and women's leather gloves, in the New York-based court in January 2007. The customs-duty rate for men's gloves is 14 percent compared with 12.6 percent for women's.

The U.S. Department of Justice filed three motions to dismiss the case in September and the court ruled in Totes-Isotoner's favor on two of the motions: Judge Donald Pogue said the court had jurisdiction over the case and that Totes-Isotoner has first party standing as a company.

However, the court said the company's complaint still does not show that the tariffs are discriminatory to an individual person.

"Whether the prohibited discrimination is overt or covert...Totes' complaint must allege facts sufficient to ‘show' some purpose or intent to disfavor individuals because of their sex, though such purpose or intent need not be malicious," Pogue wrote in the opinion.

The court's decision allows the company 60 days to redress its complaint and present it again.

"We are still considering what to do next," said Michael Cone, an attorney with Neville Peterson LLP, which is representing Totes-Isotoner. "We're in uncharted waters, but those are the sails the Court of International Trade has set."

A spokesman for the Department of Justice had no comment.

Totes-Isotoner's next move will be closely watched by other importers as its action serves as a test case on the matter. The Court of International Trade puts similar suits on hold while trying test cases.

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