Chamber Litigation Blog

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

As states slowly ease restrictions, coronavirus litigation continues to grow, as do calls for business liability protections.

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

The debate continued this week over the wave of COVID-19 related lawsuits and the need to provide a safe harbor for businesses that comply in good faith with guidance from public health authorities.

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

Protecting businesses from an onslaught of COVID-19 litigation remains front and center in the debate over reopening the economy and new legislation to speed up the recovery.

Daryl Joseffer, U.S. Chamber Litigation Center

When it comes to COVID-19 business litigation, the main topic of the week has been liability protection for businesses that reopen during the pandemic, follow federal and state health authorities’ guidelines for curbing the spread of infection, but are nonetheless sued by employees, customers, or vendors who contract the virus during this unprecedented time.

Jason A. Levine, Peter E. Masaitis, Alex Akerman, Raechel Bimmerle and Fiona O’Carroll, Alston & Bird LLP

There was an explosion of new litigation relating to the pandemic this past week.  Approximately 100 new filings brought the total number of cases well over 350.  Case filings multiplied in most of the categories we’ve been tracking.  And we saw a new category of litigation emerge this week: a claim under the Telephone Consumer Protection Act involving COVID-19 solicitations.  It probably won’t be the last.

We expect the volume of litigation to keep increasing, with plaintiffs seeking MDLs for certain types of cases.  Because of the sharp growth in new case filings, we’ve consolidated our reporting to highlight particularly important or interesting complaints, rather than attempting to cover the full range of new filings. We hope you’ll find this more readable.

Can state courts order a cleanup remedy at odds with EPA’s cleanup plan for a Superfund site?  The U.S. Supreme Court rejected jurisdictional limitations on consideration of state law claims challenging CERCLA remedies, but held that landowners on the Superfund site in question must obtain EPA approval before they can implement a cleanup plan that differs from EPA’s.  This post analyzes the implications for future cases.

Joshua B. Frank and Martha S. Thomsen, Baker Botts LLP

On April 20, 2020, the U.S. Supreme Court issued its long-awaited decision in Atlantic Richfield Co. v. Christian, No. 17-1498.  The high court’s first Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA” or “Superfund”) decision in several years addresses collateral state-law challenges to EPA’s selected cleanup plans.  While the ruling provides some protection from such challenges under some circumstances, it also opens the door to some second-guessing of EPA-selected cleanup plans. 

Jason A. Levine, Peter E. Masaitis, Alex Akerman, Raechel Bimmerle and Fiona O’Carroll, Alston & Bird LLP

Welcome to the third weekly installment of the COVID-19 Litigation Roundup.  The litigation tsunami continued to build last week.  Well over 250 business lawsuits related to the pandemic are already pending, with seemingly dozens more filed every day. 

Last week we continued to see many consumer class actions for refunds of various sorts and many more assertions of the force majeure and impossibility defenses to contract claims.  Workplace-related suits, including complaints accusing businesses of exposing workers or customers to COVID-19, are also continuing to increase with many more likely to follow.  Suits for business interruption insurance have proliferated at such a rate that some plaintiffs have asked the Judicial Panel on Multidistrict Litigation to consolidate all such suits in a single MDL.  We also saw more securities fraud and price-gouging actions.

Litigation related to government programs continues to build.  Multiple lawsuits claimed that banks inappropriately prioritized large Paycheck Protection Program loans.  In another case, political consultants challenged the Small Business Administration’s exclusion of lobbyists and political consultants from that program.  After a district court rejected the challenge, the D.C. Circuit set a highly expedited briefing schedule on appeal.  In the meantime, states got in on the action.  One state sued China for causing the pandemic while another state’s legislature sued its own Executive Branch to challenge the extension of a stay-at-home order.

We describe those and many more cases below.  Check in with us each week to track interesting new cases, court decisions, and the emerging patterns of lawsuits.           

This report from the Chamber’s Institute for Legal Reform looks at the primary types of litigation emerging from the COVID-19 pandemic, as well as early trial lawyer advertising trends and third party litigation funding in the context of COVID-19.

Keisha O. Coleman, Andrew F. Gann, Jr., and Abram J. Pafford, McGuireWoods LLP

Unless you’ve been living under a rock, you know that most of us feel like we’re, well, living under a rock. COVID-19 has forced the cancellation of countless events and activities, and many individuals and businesses have been unable to perform all sorts of contractual obligations—everything from concerts to conferences to contracts for the supply of widgets. And speaking of widgets, we lawyers have now been shaken out of our home offices and transported back to first-year contracts class, when most of us still remembered what a “force majeure” is. 

Force Majeure, Impossibility, and Frustration of Purpose

Here’s a basic refresher: A “force majeure” or “impossibility” clause excuses contractual performance when it is impossible or impracticable, typically because of an extraordinary event that the parties couldn’t have anticipated or controlled.