June 10, 2020


Jeff Bucholtz, Nikesh Jindal, and Jeremy Bylund, King & Spalding LLP

The misuse of public nuisance law to attempt to regulate worker safety from the bench in the midst of a pandemic

How to safely “reopen” the American economy has been at the forefront of public debate for weeks. And although efforts to resume or continue business operations amid the ongoing pandemic will generally follow government guidance and (perhaps even more critically) consumer demand, this will not stop private attempts to dictate these decisions through the legal system.

Enter the COVID-19 nuisance suit. Epitomized by recent actions against Smithfield Foods, McDonalds, and Amazon, these lawsuits have painted business operations as posing a threat to public welfare by failing to meet the plaintiffs’ expectations for preventing the spread of the novel coronavirus in the workplace and beyond.

They have thus sought declaratory and injunctive relief mandating that the target businesses provide what the plaintiffs view as “a safe working environment.” These suits draw obvious inspiration from “public nuisance” campaigns against lead paint, climate change, and prescription drugs. These new COVID-19 actions ask the court to regulate from the bench, using the threat of contempt to shape public policy.

Vague Public Nuisance Principles

The law of public nuisance is a notoriously empty vessel for this sort of project. Over fifty years ago, Professor William L. Prosser described “public nuisance” as “a species of catch-all low-grade criminal offense, consisting of an interference with the rights of the community at large, which may include anything from the blocking of a highway to a gaming-house or indecent exposure.” William L. Prosser, Private Action for Public Nuisance, 52 Va. L. Rev. 997, 999 (1966).

Although the doctrine varies somewhat from state to state, succeeding on a public nuisance claim typically requires proof of “an unreasonable interference with a right common to the general public,” which may include “conduct [that] involves a significant interference with the public health [or] the public safety.” Restatement (Second) of Torts § 821B (1979).

No Causation Requirement In Some States

Particularly troublesome here, some states have loosely applied nuisance law in such a way that it does not necessarily require any proof that the defendant actually caused any particular injury (or in this case, infection). This makes public nuisance substantially more malleable than ordinary tort theories, and thus more susceptible to abuse and judicial overreach – especially in this context, where identifying specific transmission of the virus is extraordinarily difficult, if not impossible.

Bad Fit

Using this open-ended right of action to impose workplace safety measures on a court-by-court and company-by-company basis is fraught with peril. Americans are rightly concerned with charting a safe and sustainable course through this crisis, but courts lack the necessary information, investigational tools, and expertise to lead that charge.

Indeed, the last three months have amply illustrated that this virus poses a complex set of challenges requiring fluid policy responses as new facts are discovered, understanding improves, and circumstances evolve. Not long ago, we were told not to wear masks; now we’re told to do so. For workplace safety regulation to be effective and well-informed in this environment, it must be the product of a deliberative ongoing process and must be generally applicable—not created on an ad hoc basis by multiple individual courts working with limited (and often stale or non-representative) sets of facts.

At the same time, mitigating the economic damage already caused by widespread fear and “lockdown” orders will require transparent and predictable public policy to govern all levels of economic activity. That can’t be achieved while the threat of public nuisance litigation hangs over practically any industry that relies on some level of face-to-face interaction.

Looking Forward

As more “non-essential” businesses reopen their doors, they will need assurance against being dragged into court just for trying to play by the rules. And by undermining that crucial assurance, these COVID-19 nuisance suits threaten the very same public welfare that they purportedly aim to vindicate.

Hopefully courts will recognize as much. Indeed, Judge Greg Kays has already dismissed the Smithfield action for interfering with the Occupational Safety and Health Administration’s “primary jurisdiction” over workplace safety. (McDonalds was not so lucky.)

There likely will be more public nuisance suits brought as a result of the ongoing pandemic, and it’s critical that courts don’t misuse this doctrine to interfere with federal and state efforts to balance public health, workplace safety, economic vitality, and the myriad of other factors that policymakers (and businesses) must continually weigh.

Jeff Bucholtz and Nikesh Jindal are partners, and Jeremy Bylund is a counsel, in the Washington, DC office of King & Spalding LLP