May 15, 2020


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.

At JD Supra, Michael Burshteyn and Tiffany Cheung of Morrison & Foerster LLP provide a comprehensive “overview of the first wave of pandemic-related class action litigation trends and project what businesses should expect next.” Quoting U.S. Chamber Litigation Center chief counsel Steven Lehotsky, they warn that this initial wave is only the “tip of the iceberg,” with much more to come.

The alarms grow louder each week. Steve Forbes recently joined the growing chorus, noting that “[t]he Chamber of Commerce and others warn that such lawsuits will make enterprises reluctant to reopen, hindering recovery.” And explicitly invoking that warning from the Chamber, theSeattle Times editorial board called for liability protections for “those who act in good faith to protect customers, vendors and employees from harm when much is still unknown.”

The debate in Congress over liability protections has already begun. The Washington Timesreports that Senate Majority Leader Mitch McConnell is spearheading a package of reforms to protect the health care industry and businesses from COVID-19 lawsuits. Declaring such reforms a “red line” condition for any additional coronavirus spending, Sen. McConnell said that protecting businesses from a litigation onslaught is crucial to economic recovery. Surveying the COVID-19 liability debate, the Washington Examiner cited a national poll by the U.S. Chamber’s Institute for Legal Reform finding that a strong majority of the public supports action by Congress to protect business from coronavirus litigation.

Over at theFederalist Society blog, Mike Carvin and Yaakov Roth of Jones Day consider whether Congress has the constitutional authority to enact such protections. Analyzing both pre-New Deal and modern jurisprudence, the lawyers behind the Commerce Clause challenge to the Affordable Care Act conclude that “there can be no serious question that under long-established law Congress is fully empowered to do so, pursuant to its power to regulate interstate commerce.”

While Congress debates federal liability protections, some states have already enacted their own. Highlighting New York’s recently enacted legislation, the New York Timesreports that at least 15 states “have granted some form of legal protection to nursing homes and other health care facilities since the beginning of the pandemic.” As the article notes, New York’s protections do not cover willful or criminal misconduct or gross negligence. A spokeswoman for Gov. Andrew Cuomo accordingly defended the Empire State’s efforts to limit coronavirus litigation, explaining that liability protections are “not intended to shield any bad-acting facilities during this tragic time, but rather to ensure facilities could continue to function in the face of potential shortages and other evolving challenges the pandemic presented.”