COVID-19 Reading List

June 12, 2020

Daryl Joseffer and Jonathan D. Urick, US Chamber Litigation Center

As always, the Chamber Litigation Blog ran an update this week on COVID-19 related business litigation, which continues to grow rapidly. Reporting elsewhere has focused on the push for limited liability protections, the budding use of “public nuisance” doctrine in COVID-19 suits, the increased volume of landlord-tenant litigation, 3M’s assertion of intellectual property rights to block price gouging and counterfeiting of N95 masks, the battle over whether to send insurance disputes to an MDL, and whether the Chinese Communist Party (along with China itself) can be held liable for the pandemic.

Tort suits piling up, threatening economic recovery

The Hill reported that COVID-19 related lawsuits are “piling up for businesses,” which are seeking limited liability protection as they decide when and how to reopen. It quoted Harold Kim, the president of the US Chamber’s Institute for Legal Reform, as saying that Congress should act now, before even more suits are filed: “If you have a tidal wave of lawsuits ... it’s going to be too late by then. That’s why there has to be a timely effort by Congress to enact something” on liability protection.

For an update on the status of legislative action on a liability safe harbor, check out this Bloomberg article.

Phil Goldberg, the director of the Progressive Policy Institute’s Center for Civil Justice, wrote an op-ed in The Hill opining that COVID-19 related lawsuits threaten the economic recovery. His basic point? “Opportunistic litigators thrive in this atmosphere of uncertainty. Without a common definition of what constitutes negligence, the standard employers will be judged against is anything the plaintiff’s lawyer can convince a jury it should be. If workers get COVID-19, lawyers will argue that whatever safety protocols an employer adopted were not enough to protect the plaintiff.”

The Chamber’s Chief Policy Officer, Neil Bradley, elaborated on Bloomberg Radio: “Businesses, universities, non-profits, have more than enough to worry about as they reopen. They shouldn’t have to worry that if they follow good public health guidance, that they’re later going to get sued with an allegation that somebody contracted covid at their university or their place of employment.”

Nuisances

Some of the new suits accuse workplaces or restaurants of being “public nuisances.”  This blog ran a post by Jeff Bucholtz, Nikesh Jindal, and Jeremy Bylund of King & Spalding LLP describing the state of play and arguing that public nuisance doctrine is a poor fit for COVID-19 related litigation. 

The Chamber’s Institute for Legal Reform published this paper on public nuisance law.  It surveys the background and evolution of the public nuisance doctrine, and concludes that, “[l]ike other widespread public policy problems, the COVID-19 pandemic does not fit within the historical limits or purpose of the public nuisance tort.” Another article in Law360 describes the suits and the legal obstacles they face.

Rent

Per the Wall Street Journal , “[t]ensions between landlords and retail tenants over missed rent payments have been boiling over for weeks. Now, they are spilling into the courtroom.” The Journal attributes the recent spike in cases to the expiration of the customary 30-day grace period and the reopening of some court systems.

3M asserting IP to block price-gouging and counterfeiting

Spotlighting 3M’s “attempt to help bring some order to the chaotic market for protective equipment,” the Wall Street Journal described how “3M has filed more than a dozen lawsuits against mask sellers in recent months, alleging price gouging, trademark-infringement and false advertising.” The goal? To protect the public and health care providers from high prices and low-quality, counterfeit goods.

Insurers hotly dispute MDL petitions

Insurance Business Magazine reports that insurers and even some insureds are opposing businesses’ efforts to consolidate into an MDL over 100 federal business-interruption-coverage lawsuits arising from COVID-19 shutdowns. The insurance companies argue that consolidation “would complicate and prolong the litigation” because each claim involves unique facts and law, including different insurers, policy language, state insurance laws, and coronavirus shutdown orders. The MDL judicial panel will consider the consolidation motions when it convenes in July.

Suing the Chinese Communist Party

Suing China over COVID-19 is old hat by now, but on a Federalist Society Teleforum podcast, an expert panel discusses a new lawsuit seeking to hold the Chinese Communist Party (as well as China) legally responsible for COVID-19. The panelists consider whether the CCP enjoys sovereign immunity and whether the Chinese government’s alleged acts and omissions fall within any of the Foreign Sovereign Immunities Act’s exceptions to such immunity.