COVID-19 Reading List

October 23, 2020

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

Some highlights of the last two weeks’ reporting and commentary on COVID-19 litigation include negotiations over including liability protections in the next round of stimulus legislation, more calls for Congress and state legislatures to enact such protections, college tuition refund lawsuits, and an update on employment litigation.

Liability Protections in Proposed Stimulus Bill

According to Fox Business, as congressional negotiations over a new stimulus bill continue, “[p]erhaps most important for” Senate Majority Leader Mitch McConnell are “broad liability protections for businesses looking to reopen amid the pandemic.”  COVID-19 lawsuit protection accordingly remains a “key” provision in McConnell’s proposed stimulus legislation.  Roll Call likewise confirms that, when asked about the status of negotiations over a new stimulus bill, Treasury Secretary Steven Mnuchin “stressed the need for liability protection from pandemic-related lawsuits for small businesses and schools that reopen.”

More Calls for Federal and State Liability Protections

In a Philadelphia Inquirer editorial, Curt Schroder, executive director of the Pennsylvania Coalition for Civil Justice Reform, urges Congress and the Pennsylvania state legislature to pass coronavirus liability protections.  As legislative negotiations have stalled, denying businesses “reasonable safe harbor protections from unwarranted lawsuits that pose a constant threat,” Schroder warns that “profiteering plaintiffs’ attorneys have taken notice — they’re already seeking to capitalize on this pandemic by bringing forth opportunistic lawsuits.”  The “absence of targeted and temporary liability protections, solely for those adhering to safety guidelines,” he argues, “has left medical personnel, businesses, nonprofits, schools, and others vulnerable.”

Since “frivolous litigation threatens to set back Pennsylvania’s recovery efforts,” Schroder calls for “limited and temporary liability protections that will encourage best practices by safeguarding those operating in good faith to comply with safety requirements, while still holding bad actors accountable.”  Such protections “are a critical component of moving Pennsylvania forward through the next phase of the pandemic.”

Similar editorials calling for liability protections also recently appeared in the Delaware News Journal (Tamara N. Varella, a businesswoman and small-business consultant), The Ledger (Jimmy Patronis, Florida’s chief financial officer), and the Colorado Sun (Tony Gagliardi, Colorado state director for the National Federation of Independent Business).

Tuition Refund Lawsuits Pile Up

The San Diego Union Tribune reports that “[c]lass-action lawsuits calling for partial reimbursement of tuition and fees are continuing to amass nationwide — from Ivy League institutions to goliath state university systems to small private colleges — with potentially hundreds of millions of dollars at stake.”  “At the heart of the lawsuits,” the article describes, “are the allegations that schools breached a contract with students by failing to provide an agreed-upon service”—the full, hands-on experience of academic life on campus—"in exchange for an agreed-upon price, and that the schools were unjustly enriched by retaining those funds.”  While the tuition-refund lawsuits keep coming, the Tribune notes, “the results so far have been mixed, and it remains unclear if the various state and federal courts tapped to hear the matters will come to any kind of universal agreement.”

Employment Litigation Update

Finally, over at the Daily Herald (a Chicago publication), attorneys from Ice Miller LLP provide an update on coronavirus-related employment claims, which “[p]laintiff’s lawyers have leapt at the opportunity to file” amid the pandemic.  Employment claims “tend to be widely varied,” but “it is safe to assume employers will continue to be a target in this area.”  The attorneys identify a number of trends, including claims about leave, workplace safety, discrimination, and wage and hour issues.

“While these are the four most common categories of employment-related claims involving COVID-19,” they note, “other claims are also being raised, such as breach of contract when an employee is furloughed or separated in a manner that allegedly violates an employment agreement.”  What’s more, outside the courts, the U.S. Department of Labor is also conducting its own investigations into possible employment-law violations.

The attorneys recommend that “[e]mployers should take proactive steps” to avoid liability, “includ[ing] careful application of the leave requirements, compliance with state and local orders related to COVID-19 and workplace safety measures and thoughtful (preferably documentable) decisions related to the reasons employees are chosen for furloughs and layoffs (while being mindful of any contractual requirements).”