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Evaluating Novel Lawsuits in the Wake of the Novel Coronavirus

Author: Rob Olson

May 6, 2020 9:30pm

Due to the novel Coronavirus, there are more questions than answers surrounding how the civil landscape will play out once the courts reopen. Many of us who defend civil lawsuits are trying to figure out what types of lawsuits the plaintiffs’ bar will dream up in order to line their pockets. After reviewing the kinds of Continuing Legal Education (CLE) offered, hundreds of plaintiffs blog posts, and how industries are marketing to plaintiff’s lawyers, the consensus is the plaintiffs’ bar does not yet know what novel lawsuit will come from the novel Coronavirus—but they are trying to find out.

Current Plaintiffs

Plaintiffs’ Attorneys are Focused on Encouraging their Clients to Participate in the Remote Legal Environment

Similar to all businesses open during this pandemic, plaintiff attorneys are primarily concentrating on assuring current and future clients they are working. They are informing these clients that they are actively working lawsuits and touting their remote capabilities.  Indeed, most attorney CLE’s and legal publications attempt to instruct attorneys on how to establish remote offices, work and sign clients remotely, and perform video depositions and mediations.

Fighting the Impression that Insurance Companies can Pressure Plaintiffs into Settlement

Nevertheless, the plaintiffs’ bar and its vendors, such as Consumer Attorneys of California, National Center on Law and Elder Rights, and multiple lawsuit financing companies have scheduled CLEs in order to provide attorneys with information, resources, and ideas on how to approach the court closures and reach favorable resolutions despite unknown trial dates.  Interestingly, the Consumer Attorneys of California and lawsuit financing companies are already offering CLEs to protect plaintiffs from “insurance companies [that] are leveraging this terrible situation to force clients who don’t have any other means of survival to settle their cases for less than they are worth.” This particular CLE discusses not only the benefits of lawsuit financing but also how to access government resources and provide assistance to clients. The plaintiffs’ bar is trying to find ways to give the defendants at least the impression they are not desperate to settle their cases.

Jumping in Line – for an Earlier Court Date

Generally, civil litigators see the writing on the wall that it will take a while before civil jury trials resume. If there is a protracted timeline, plaintiffs will seek every angle to push to the front of the line.  One such procedure available in California is to have a matter designated as a preference case.  Trial preference is a separate discussion in and of itself. Essentially, in California, if a plaintiff is old, young, or close to death, the plaintiff can force a court to set trial in 120 days or less.

Future Plaintiffs

Getting New Clients from Past Clients

Some organizations have encouraged the plaintiff’s attorneys to “check-in” with their old clients.  They suggest new business may be available given stresses and difficulties in “this traumatic time.” Thus, discovery into past lawsuits may provide some interesting information into lawsuits brought by repeat clients.

Low Hanging Fruit – Employment Lawsuits

The Martindale-Avvo network (Avvo.com, Nolo.com, Lawyers.com, Martindale.com, and dozens of other sites) are reporting an “avalanche of users” searching and asking unemployment-related questions on websites.  In California, the traffic increase is up 298%. In Arizona, the traffic exceeds 1,700%.[1]   The employment questions and blog articles related to employment law include such topics as:

  • A recent wrongful death suit filed against Walmart, alleging the store did not do enough to protect employees from the novel Coronavirus.[2]
  • Multiple plaintiffs’ firms have written blog posts about the meatpacking plant, where over 36 employees tested positive with COVID-19. The universal issues discussed by the attorneys are how employers are “protecting” their employees, whether employers followed government guidance, and whether racial and other discriminatory practices took place due to the Coronvirus.
  • Simply searching for “constructive firing coronavirus” or “can’t work coronavirus” provides the searcher with endless attorney websites that offer advice and explain factors of employment claims, such as how an employee can consider themselves constructively terminated.
  • Blogs have also contrasted privacy, HIPPA, and disability laws with public health safety, contact tracing, and company health checks (such as Amazon’s thermal heat sensors used as employees enter its offices). Individuals are seeking answers to these questions on Avvo, and lawyers have posted FAQs and blogs to explain employees’ privacy rights related to their medical condition.

Finally, while many of the smaller firms seem to be interested in discussing these matters with anyone, the more established plaintiffs’ firms highlight class-action employment cases.

Personal Injury for the Novel Coronavirus

Personal injury attorneys are still trying to figure out the Coronavirus angle.  Most plaintiffs’ firms have at least one article discussing the alleged neglitgence of the cruise ship industry.  Others discuss medical malpractice and issues related to diagnosing, treating, and testing for the Coronavirus.  Attorneys also suggest battery lawsuits could be brought against individuals who exposed others to the Coronavirus.  Similarly, newspapers are reporting lawsuits against school districts and colleges for how they handled the pandemic. Plaintiffs have even questioned whether grocery stores and restaurants are negligent when they do not follow or enforce social distancing guidelines.

Business Injury for the Novel Coronavirus

Individuals have been peppering newspapers and website forums for answers about how to get refunds for travel, weddings, events, yearly amusement parks memberships, gyms, and even car wash subscriptions.  NY Times reported that Cable TV customers were seeking refunds for the “sports” channel they were paying for with no live sports.[3]

The FCC recently revised the Telephone Consumer Protection Act (TCPA) and allowed “medical” robocalls related to the Coronavirus.[4]  These new revisions will likely lead to a new flood of TCPA class-action lawsuits.

Indeed, those industries that serve the elder community are at considerable risk for negligence suits and liability exposure once the courtrooms reopen.  The National Center on Law and Elder Rights stated in a CLE that referrals for older adults had been down during the pandemic. Thus, they anticipate a rush of inquiries and complaints after the pandemic ends, or at least after there is less fear about going out in public.[5]

Attorney blogs also highlight what it means when a governor declares an emergency, effects of evictions, liability for price gouging, and legal issues with hoarding.  There are numerous news stories and warnings about false claims and false advertising of sanitary solutions, supplements, and even testing equipment. Businesses will be looking at lawsuits against insurance companies for business interruption losses (the French Laundry filed suit against Hartford Insurance for this very loss). There will also be countless briefs discussing the term “force majeure” in written contracts.

It seems like everything will be fair game when the courts open up.  Indeed, as soon as the courts reopen, there will be a flood of new filings.  As Apple and Google roll out platforms that help medical providers trace exposure, plaintiff attorneys may also use such a platform to identify defendants.  Which type of lawsuits will stick and which will be most widespread are still not yet known by the plaintiffs or the defense. Thus, on the defense side, it is best to get ready to fight these novel plaintiff cases with novel defenses.

 

[1] How COVID-19 Unemployment Data Can Help You Attract New Clients <https://www.avvo.com/legal-guides/ugc/unemployment-covid-19>

[2] https://abcnews.go.com/Business/walmart-hit-wrongful-death-lawsuit-employee-dies-covid/story?id=70040675

[3] https://www.nytimes.com/2020/04/02/sports/no-sports-coronavirus.html

[4] Federal Communications Commission (FCC), In the Matter of Rules and Regulations Implementing the TCPA of 1991, CG Docket No. 02-278, March 20, 2020.

[5] https://ncler.acl.gov/Resources.aspx

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