COVID-19 Reading List

September 25, 2020

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

Reporting and commentary on COVID-19 litigation was somewhat lighter this week.  Highlights include articles on shareholder derivative litigation, workplace litigation, and effective liability waivers.

New Shareholder Derivative Litigation

Writing at The D&O Diary, Kevin LaCroix examines a new shareholder derivative lawsuit against vaccine developer Vaxart.  The shareholders allege that “the company falsely claimed that it was part of the federal government’s accelerated program for the development of a COVID-19 vaccine.”  By LaCroix’s count, this suit “represents the fifth coronavirus-related shareholder derivative lawsuit filed since the U.S. outbreak began.”  “There is still the possibility for further mismanagement claims, as well as misrepresentation claims,” he observes, “as companies struggle to reopen, manage the ongoing public health crisis, and attempt to deal with the consequences and effects of the economic downturn.”

COVID-19 Workplace Litigation

On Law360, three Fisher Phillips attorneys summarize “the top three types of COVID-19 workplace cases that employees have filed against employers to date,” and analyze the latest trends in such litigation.  According to the attorneys, through the end of July, “employees and former employees had filed at least 436 workplace-related lawsuits against employers relating to COVID-19.”  They spot “two major trends.”  First, “the states that generally see the most typical workplace-related litigation”— California, New Jersey, and Florida—“are largely seeing the most COVID-19-related workplace litigation.”  Second, the most common claims “involve remote work and employee leave issues, standard employment discrimination allegations, and retaliation/whistleblower claims.”

Finally, writing on JD Supra, several Jones Day attorneys examine the “increased risk of COVID-19-related employment practices liability claims” employers face “as more employees return to the workplace.”  Such claims “could target a wide range of employment practices,” they explain, “from claims alleging employers failed to take proper steps to reduce health and safety risks for their workforce to claims alleging employers discriminated against employees with COVID-19 concerns.”  The lawyers accordingly recommend that “[e]mployers with workforces returning to the workplace should evaluate their employment practices liability insurance policies to assess coverage and how they might respond to COVID-19-related” employment litigation.

Crafting Effective Liability Waivers

Over at Bloomberg Law, two attorneys at Akerman LLP recommend that “[b]usinesses operating in states that don’t provide Covid-19 liability immunity should consider drafting liability waivers for patrons to sign.”  “The general consensus,” the lawyers explain, is that to be enforceable, a liability waiver must be “clear, unequivocal, conspicuous, and not against public policy.”  They offer eight recommended features and provisions businesses should include in such waivers.