May 7, 2020

ILR Briefly COVID-19 Series: Federal Liability Problems and Solutions

Authors: John Beisner and Jordan Schwartz, Skadden, Arps, Slate, Meagher & Flom L.L.P.

While the focus of an overwhelming majority of Americans has been on mitigating the health consequences of the COVID-19 pandemic, some plaintiffs’ lawyers have made clear that they have different plans: burdening American businesses with meritless and abusive civil litigation. 

The second edition of ILR Briefly COVID-19 series details four main areas of law that the plaintiffs’ bar is expected to target or, in some cases, is already targeting: 

  • Exposure liability, where essential businesses that have stayed open during the pandemic and businesses that have begun to reopen are sued for allegedly exposing a patron, employee, or member of the public to coronavirus.
  • Product liability, where manufacturers of products designed to protect against, treat, or test for the cornavirus are sued when these products fail to perform perfectly.
  • Medical liability, where frontline responders to the coronavirus are sued for care decisions they made or did not make when rendering COVID-19-related medical services.
  • Securities litigation, where companies are sued for allegedly failing to give sufficient warning of the economic fallout of the coronavirus to investors in time for them to avoid related losses.

The paper goes on to recommend targeted, temporary liability protections that Congress should enact for businesses within each of these areas, to ensure that the economic restart doesn’t face headwinds from lawsuits, and that companies and professionals are encouraged—rather than punished—in their actions to mitigate the impact of the virus. 

Finally, this Briefly paper also explores additional legal frameworks likely to attract litigation and ripe for administrative solutions, including the False Claims Act, the Telephone Consumer Protection Act, the WARN Act, and the securities laws. 

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