COVID-19 Reading List
Jonathan D. Urick, U.S. Chamber Litigation Center
Discrimination and personal-injury lawsuits, the debate over federal liability protections, the use of liability waivers, and lawsuits against China highlighted this week’s reporting and commentary on COVID-19 litigation. The National Law Review also has an updated and very comprehensive report summarizing “the shifting state, territorial and local government policies and guidance in response to the COVID-19 pandemic and reopening of the economy.”
Insurance Business magazine notes that phased reopening could expose small and medium-sized businesses to “a higher risk of discrimination claims” surrounding “the methods used to decide when and which employees to call back” to work. The article discusses expert recommendations for avoiding discrimination liability when reemploying workers and addressing employee coronavirus infections.
Personal Injury Suits
Bloomberg Law examines lawsuits by families of workers who died of COVID-19. “Attorneys say these suits,” mostly proceeding in state courts, “are an attempt to bypass state workers’ compensation systems.” Such lawsuits continue to fuel businesses’ growing calls for federal liability protections because “companies fear the ramifications of lawsuits as Covid-19 ravages the economy and businesses are already teetering on uncertainty.”
Liability Limitations And Waivers
In an editorial in The Hill, retired Postal Service special agent and former Navy captain John M. DeMaggio argues that Congress must pass coronavirus liability protections to ensure that CARES Act relief funds aren’t diverted away from struggling businesses to plaintiffs’ lawyers.
For a plaintiff’s lawyer’s perspective on liability waivers, Law360 provides an interesting analysis by Marc Lamber of Fennemore Craig. Although he warns that coronavirus liability waivers may not be enforceable in some circumstances, Lamber concludes that “liability waivers are an easy, inexpensive option to potentially deter lawsuits and limit liability related to COVID-19 transmission at business premises.”
Lamber recommends that businesses considering such waivers “should make sure that the waiver clearly sets forth the risks of COVID-19 transmission, and clearly identifies the rights that customers are giving up by signing it.” Lamber cautions, however, that businesses should carefully consider choice-of-law issues and ensure that waivers “conform with the specific laws of the state that will govern the waiver.”
Finally, over at the Lawfare blog, Sean Mirski and Shira Anderson of Arnold & Porter take a close look at the coronavirus lawsuits against China’s government and the Chinese Communist Party, categorizing them into four groups: “national class actions, state-specific class actions, suits brought by states, and non-class-action suits.” Without new legislation abrogating China’s sovereign immunity, they argue, “these suits face very steep immunity barriers regardless of how they are pleaded.”