COVID-19 Reading List

August 14, 2020

Jonathan D. Urick, U.S. Chamber Litigation Center

This week’s reporting and commentary on COVID-19 litigation primarily focused on the debate over the Senate GOP’s proposed lawsuit protections, the liability risks facing reopening schools and college-sports programs, and the growing wave of business-interruption insurance litigation.

Debating the Senate Republicans’ Proposed Liability Protections

Writing in a Daily Caller editorial, U.S. Chamber Institute for Legal Reform president Harold Kim urges Congress to pass the “temporary and targeted liability protections” in the Senate GOP’s proposed SAFE TO WORK Act as part of the next round of coronavirus relief legislation.  “Unless there is swift action” to protect businesses, schools, hospitals, and nonprofits, “abusive lawsuits will overtake our economic recovery.”  Waiting “for an onslaught of litigation to happen first,” he warns, “is like leaving your umbrella at home when there is a storm in the forecast.”

Kim explains that, with exceptions for gross negligence and willful misconduct, the SAFE TO WORK Act “does not give [businesses] a free pass, but ensures entities that are working hard to follow the appropriate health guidelines don’t face an impossible choice: shut down again and risk bankruptcy or stay open and risk a crippling lawsuit.”

For still another in-depth guide to that proposed legislation, check out Morrison & Foerster partner Janie Schulman’s analysis on JD Supra.  The National Law Review also has a short, bullet-point summary.

Congressional Negotiations Stalled

Bloomberg Law reports that Senate Republicans’ proposal “remains in limbo with talks on a stimulus package stalled.”  Some Democrats still see potential for a compromise, however, based on safety standards set by a federal agency such as OSHA or the CDC.  Yahoo! Finance breaks down both sides of the congressional debate over liability protections.

Reopening Schools Turn to Liability Waivers

Businesses are not the only entities worried about coronavirus liability.  According to another article in Yahoo! Finance, “[t]he possibility of lawsuits worried colleges enough to lobby Congress for protections from liability.”  Absent such protections, “[s]chools that are choosing to reopen amid the coronavirus pandemic are attempting to protect themselves against possible legal blowback with legal liability waivers.”

The Liability Risks of College Sports

Sports Illustrated examines the battle of “athletic directors, coaches and players vs. presidents, trustees and lawyers” over whether to proceed with fall college sports.  For those conferences still planning to play, the article warns, “[t]he lawyers will be circling,” waiting to sue “if, God forbid, a player dies, has long-term damage or career-threatening complications” from COVID-19.  According to prominent college-sports attorney Tom Mars, who “talked with some of the best plaintiff’s lawyers in the country this week,” these lawyers are eagerly awaiting an opportunity to sue, using a simple playbook: “If things go sideways, the plaintiff’s Bar will immediately get their hands on the internal financial analyses of the schools (a FOIA layup), get the conference financials through the discovery process, and then just stand in front of the jurors and point to the conferences that decided not to risk the health of their student-athletes.”

The Growing Wave of Business-Interruption Insurance Litigation

Insurance Journal reports that “lawsuits brought by businesses seeking coverage for COVID-related interruptions surpassed the 700 mark last month,” multiple times more than those arising from prior natural disasters.  According to Tom Baker, an insurance-law professor at the University of Pennsylvania, this litigation trend is “not slowing down.”  Based on data from prior disasters, Baker explained, the litigation peak “doesn’t come until one year” out, which “suggests that there’s a lot more lawsuits to come.”  The University of Pennsylvania Law School has been tracking these insurance-coverage cases.

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