May 22, 2020


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.

The Chamber Litigation Blog has been tracking hundreds of coronavirus-related lawsuits. This CNBC article predicts that is just the beginning. Entitled “As America reopens, prepare for a flood of coronavirus workplace lawsuits,” the article suggests that “[c]oronavirus litigation could set [a] record.”

Over at Bloomberg Law, Mark A. Fahleson thoroughly examines the risk reopening companies face from potential civil, administrative, and criminal liability for actions taken—or not taken—in response to the pandemic. He notes that the greatest risk is exposure claims, which “will grow as businesses reopen.”

Earlier today, Fox Business host Stuart Varney interviewed the Chamber’s President, Suzanne Clark. Varney opined that “[i]f you want to reopen this economy, you’ve got to protect the business owners from the lawyers.” Clark emphasized that liability protection has been a bipartisan issue in the past—“[w]e saw it after Y2k, after 9/11”—and is also receiving bipartisan support at the state level, where “[w]e’ve seen Republican and Democratic governors . . . put liability protections in place that really helped those states get moving.”

The Associated Press reported on the state-level effort in Kansas to provide liability protection. It quoted Harold Kim, the president of the Chamber’s Institute for Legal Reform, as explaining that a business “may [have] good defenses, but with a class-action lawsuit, the [plaintiff’s] goal is not to get all the way to trial with a jury and a judge. It’s to get past the early phases of the litigation and put the pressure on the defendant to settle. The immediate concern is the uncertainty. How do you remove this cloud of liability as businesses are trying to reopen?”

Bloomberg radio host David Westin interviewed the Chamber’s Chief Policy Officer Neil Bradley on the potential “Phase 4” stimulus bill. Among other things, Bradley discussed the need for a “good-faith safe harbor” for “businesses that reopen against frivolous litigation.” “If you’re a business who is complying with the public health guidance from the CDC, OSHA, your state officials, you shouldn’t have to be worried about being second-guessed.”