Daryl Joseffer
Executive Vice President and Chief Counsel, U.S. Chamber Litigation Center, U.S. Chamber of Commerce
Published
July 31, 2020
Reporting this week focused on the Congressional debate over federal liability protection; the potential for litigation even if legislation passes; back-to-school requests for liability waivers; BigLaw suits for rent abatement; and a court ruling against cruise ship passengers who did not contract COVID-19 but sued anyway.
The SAFE TO WORK Act
With the introduction of Senator Cornyn’s SAFE TO WORK Act, the debate over liability protection sharpened. As reported by Bloomberg and other outlets, that bill would provide liability protections for businesses, educational institutions, and nonprofits that follow public health guidelines.
- Among other things, the bill creates an exclusive federal cause of action for claims alleging that a plaintiff contracted COVID-19 from exposure to the virus. To prevail, a plaintiff must prove that the defendant did not make “reasonable efforts” to comply with government health guidance, and instead engaged in gross negligence or willful misconduct.
- The bill contains a number of other important provisions; this article in JD Supra walks through them.
Opponents of liability protection have argued that relatively few lawsuits have been filed to date. The Washington Examiner examined those claims and quoted Harold Kim, the President of the Chamber’s Institute for Legal Reform, as explaining that this “argument is a red herring. Employers need protections before a potentially crippling lawsuit has been filed against them, not after . . . . Waiting for an onslaught of litigation to happen is like leaving your umbrella at home when there is a storm in the forecast.”
According to The Hill, liability protection “has quickly emerged as one of the biggest obstacles to getting a deal on COVID-19 relief legislation,” with both sides saying they are dug in.
Concern Over Strike Suits
What will happen if Congress enacts federal liability protection? According to the Washington Examiner, “[b]usiness owners won’t rest easy . . . since they know that such protections only go so far.”
The Examiner explains that businesses are concerned with “bottom feeder” suits where lawyers threaten to sue unless they’re paid $5,000 to $20,000, which businesses may pay to avoid even a frivolous lawsuit.
Back-to-School
As the school year looms, reporting on liability waivers for exposure to the novel coronavirus is focusing on schools’ requests that students and their parents sign waivers. Among others, Arizona grade schools are requesting waivers (per Newsweek), as are some Tampa Bay-area parochial schools (per WTSP). But the Dallas News reports that SMU Athletics dropped its waiver request.
BigLaw Big Rent
The ABA Journal reports that a second BigLaw firm has sued its landlord for rent abatement and return of rent paid during the pandemic. According to the article, Simpson Thatcher’s lease “entitles [it] to rent abatement when the law firm can’t use its offices for 60 days because of ‘force majeure’ events.”
Emotional Distress Damages
Market Watch reported on a ruling against passengers on a Princess Cruise ship who did not contract COVID-19. This was one of the first coronavirus-related suits, as it was filed by passengers still on board the ship. After testing negative, these passengers proceeded on a theory that they were entitled to damages for emotional distress; a district judge disagreed.
About the authors
Daryl Joseffer
Daryl Joseffer is executive vice president and chief counsel at the U.S. Chamber Litigation Center, the litigation arm of the U.S. Chamber of Commerce. In this role, Joseffer handles a variety of litigation matters for the Chamber. He has argued 12 cases in the U.S. Supreme Court and dozens of appeals in other courts across the country.
