Liability Protections Are Essential To Reopening The American Economy

Senate Republicans: ‘As Businesses Bravely Begin To Reopen, Class Action Lawsuits Are Being Planned Nationwide,’ ‘It’s Essential If We’re Going To Get The Economy Going Again Not To Have Every Business Becoming Sued,’ ‘We Have To Address It’

SENATE MAJORITY WHIP JOHN THUNE (R-SD): “And, as we start to climb out of this, and the recovery gets going, we want to make sure that we don’t step on that recovery by having just the cycle of endless litigation that makes it almost impossible for businesses to keep up with the cost and, in many cases, having to declare bankruptcy. We don’t want to see that outcome. And so some sort of liability protection, if people are doing things the right way, if they’re following the CDC protocols, they shouldn’t be subject to all these sort of frivolous lawsuits.  And I think that kind of protection makes sense.” (PBS’ “Newshour,” 5/06/2020)

SEN. JOHN BARRASSO (R-WY): “As we look to the future, in terms of recovery legislation, what we need to do is to prevent a second epidemic. I am very concerned that the second epidemic will be that of frivolous coronavirus lawsuits. Any future legislation must focus on the virus and must include reasonable liability protections for the hard-hit healthcare workers and for American employers. Opportunistic lawyers are already advertising, and they are targeting the healthcare workers and small businesses that we have assisted during the crisis. Ironically, the relief money could end up lining the pockets of greedy trial lawyers. As businesses bravely begin to reopen, class action lawsuits are being planned nationwide. Ambulance chasers are running recruitment ads right now that read ‘receive a free coronavirus lawsuit review.’ They go on to say: Call if you or a loved one has been diagnosed with COVID-19 and you believe another party’s negligence caused the exposure. Nursing homes appear to be the prime target. One lawyer who described himself as a ‘coronavirus exposure lawyer’ encouraged action for nursing home negligence. That is why nurses, doctors, and hospitals are counting on Congress to pass commonsense liability reform. Yet Speaker Pelosi and Senator Schumer say they oppose this critical liability protection.” (Sen. Barrasso, Congressional Record, S2237, 5/05/2020)

SEN. THOM TILLIS (R-NC): “What Speaker Pelosi and Chuck Schumer need to know is a lot of businesses, including a lot of businesses in the food supply chain, will shut down if their liability is the sky is the limit. We have got an entire cottage industries of trial lawyers that are already thinking about strategies that they’re going to use. We passed liability protections after 9/11. If we don’t do it here, then they are directly responsible for shutting down businesses that are essential businesses that are critical to the recovery.” (Fox News, 4/29/2020)

SEN. ROB PORTMAN (R-OH): “In fact, some businesses, smaller businesses, maybe mostly, are thinking you know, should I reopen with this risk, because it’s such a huge potential liability? So we have to address it. I think Democrats should realize that. If they’re listening to their constituents back home, they’re certainly hearing it. As a practical matter, everybody should want to get back to work, back to a more normal life And to do that, we’re going to have to have some protection.” (The Hugh Hewitt Show, 5/05/2020)

SEN. MITT ROMNEY (R-UT): “It’s essential if we’re going to get the economy going again not to have every business becoming sued by the players who are associated with Covid-19.” (“Liability Shield Is Next Coronavirus Aid Battle in Congress,” The Wall Street Journal, 5/04/2020)

SEN. TED CRUZ (R-TX): “Look, there is no doubt that if we do nothing, there will be an onslaught, a tidal wave of lawsuits going after every small business in America for opening up and risking COVID-19. That’s not an acceptable course of action.” (The Hugh Hewitt Show, 5/06/2020)

SEN. SHELLEY MOORE CAPITO (R-WV): “As we gradually open, somebody is going to become infected one way or the another. And, is it through the fault of the business? No. I think it’s because the spread is still there, we know it’s still going to be there. And, I think we have got to get liability protections forward. It’s just a necessity for private facilities and public facilities.” (Fox Business Network, 5/05/2020)

A ‘Jackpot For Liability Lawyers’: ‘Multiple Lawsuits Have Already Been Filed Against Businesses’ So ‘U.S. Businesses Fear A Wave Of Litigation’ As They Attempt To Reopen The Economy

“Jackpot for liability lawyers … As corporate responsibility for workers' and customers' COVID-19 infections turns into a political and financial flashpoint, the beneficiaries will likely be trial lawyers, bringing torts of all kinds. ‘I envision that you are going to see a spike in litigation,’ Eric Swan, a tort litigation attorney at Lathrop GPM, tells Axios. ‘You're going to see personal injury claims from consumers against businesses — you're already seeing this a little bit with employees against employers.’” (“Jackpot For Liability Lawyers,” Axios, 4/30/2020)

• “Multiple lawsuits have already been filed against businesses, including Walmart, nursing homes, insurers and others. More are on the way. Ads from attorneys seeking clients who’ve suffered damages in some way from the coronavirus outbreak are popping up on late-night TV. A group called Top Class Actions that runs a website funded by attorneys is advertising multiple investigations related to the coronavirus, ranging from issues involving denied refunds for college courses, canceled flights, and faulty or lacking personal protective equipment, among other things.” (“White House And Congress Clash Over Liability Protections For Businesses As Firms Cautiously Weigh Virus Reopening Plans,” The Washington Post, 5/03/2020)

“U.S. businesses fear a wave of litigation as workers in meat-processing facilities, grocery stores and other locations get sick or die from the Covid-19 illness caused by the new coronavirus. The U.S. Chamber of Commerce has said the risk of class-action claims and other suits could deter businesses from reopening, even if they are acting in good faith to operate safely. The trade group has endorsed shielding companies that follow federal and state health authorities’ guidelines for curbing the spread of infections.” (“Liability Shield Is Next Coronavirus Aid Battle in Congress,” The Wall Street Journal, 5/04/2020)

• Bryan Cave Leighton Paisner LLP commercial litigator Jacob Kramer: “Legislative immunity won’t eliminate virus-exposure litigation, but it would stem the tide by requiring plaintiffs to show that businesses were grossly negligent or reckless in exposing workers or customers to infection.” (“Liability Shield Is Next Coronavirus Aid Battle in Congress,” The Wall Street Journal, 5/04/2020)

“Already, more than a dozen states—including Arizona, Connecticut, Illinois, Massachusetts, Michigan, New York and New Jersey—have granted civil-liability protections to health-care providers such as hospitals, nursing homes, physicians or other medical personnel dealing with surges of Covid-19 patients. The state measures have helped to insulate the health-care industry from malpractice lawsuits arising from the pandemic. Trade groups representing physicians, hospitals and nursing homes are trying to expand the protections into other states.” (“Liability Shield Is Next Coronavirus Aid Battle in Congress,” The Wall Street Journal, 5/04/2020)

THE WALL STREET JOURNAL EDITORIAL BOARD: “[Congress should pass] the liability protections that business owners need to feel confident they won’t be looted by lawsuits as they get back to work. The plaintiff bar is trying to cash in almost as quickly as the coronavirus has spread. Trial lawyers are filing suits against emergency-supply manufacturers (false advertising), colleges (refusal to refund student fees), cruise lines (emotional distress), retailers (wrongful death), nursing homes (negligence), and governments (denial of hazard pay)—and much more. There is little point in lifting lockdowns if employers don’t open for fear of lawsuits.” (Editorial, “Stay Shut Down or We’ll Sue,” The Wall Street Journal, 5/06/2020)

• “Congress has passed nearly $3 trillion in virus spending for hospitals, struggling businesses and state and local governments. The money should be used to save jobs and businesses, not be siphoned into trial-lawyer bank accounts. The government lockdowns put the economy into a deep recession. Now government has a duty to help businesses reopen without fear of crippling litigation.” (Editorial, “Stay Shut Down or We’ll Sue,” The Wall Street Journal, 5/06/2020)

Business Groups: ‘It Would Be Devastating To Have These Same Employers Facing A Series Of Unjust Lawsuits’

“The National Association of Manufacturers, for example, is asking Congress to limit lawsuits to instances where a manufacturer had actual knowledge that workers could be exposed to the coronavirus and consciously disregarded that information or acted with reckless indifference. The group is also seeking protections to ensure employers can collect and exchange critical information about employees’ health status, and asking for liability shields for manufacturers that are producing protective gear like respirators or masks. ‘If we are to get the country back to work and get our economy going again, employers have to have the confidence they can restart their operations or ramp their operations back up if they’ve been working all along,’ said Linda Kelly, general counsel at the National Association of Manufacturers.” (“White House And Congress Clash Over Liability Protections For Businesses As Firms Cautiously Weigh Virus Reopening Plans,” The Washington Post, 5/03/2020)

“The U.S. Chamber of Commerce is seeking some similar measures, including a ‘safe harbor’ against customer lawsuits for businesses that have followed public health guidelines, and protections for health-care workers and doctors on the front lines. ‘We’re not looking for permanent tort reforms here,’ said Neil Bradley, executive vice president at the U.S. Chamber. ‘We really do believe this should be focused on businesses and health-care providers who are following, to the best of their ability, the public health guidance. They should not be subject to legal liability.’” (“White House And Congress Clash Over Liability Protections For Businesses As Firms Cautiously Weigh Virus Reopening Plans,” The Washington Post, 5/03/2020)

32 TRADE INDUSTRY ASSOCIATIONS: “Our associations represent industries across the nation that have been recognized as part of the nation’s essential critical infrastructure by the U.S. Department of Homeland Security (DHS)…. These businesses are committed to doing the right thing by remaining open for business and serving the American people during this crisis. But there is an emerging threat to their ability to continue serving customers: efforts by some to take advantage of the current crisis to file unfounded lawsuits against them alleging that customers and employees were infected with COVID-19 because the nation’s essential critical infrastructure businesses kept operating. Given the historic efforts of Congress and the Administration to save businesses large and small as well as American jobs, it would be devastating to have these same employers facing a series of unjust lawsuits.” (32 Trade Industry Associations, Letter to Sen. McConnell, 4/14/2020)

• “Congress can help solve this problem to ensure that America’s essential critical infrastructure continues to serve the American people…. Given the threat to these employers and their associates, we ask for your leadership and support for liability protection language for businesses designated as essential critical infrastructure by the DHS Cybersecurity and Infrastructure Security Agency’s guidance in the next (phase 4) COVID-19 stimulus bill. We look forward to working with you to reach a bipartisan solution to this important issue.” (32 Trade Industry Associations, Letter to Sen. McConnell, 4/14/2020)

• Letter signed by: American Bakers Association, American Beverage Association, American Trucking Associations, ATM Industry Association, Convenience Distribution Association, Distilled Spirits Council of the United States, Electronic Funds Transfer Association, Electronic Transactions Association, FMI - The Food Industry Association, Global Cold Chain Alliance, Healthcare Distribution Alliance, International Foodservice Distributors Association, International Franchise Association, National Armored Car Association, National Association of Chain Drug Stores, National Association of Convenience Stores, National Association of Specialty Pharmacy, National Association of Truckstop Operators, National Cattlemen's Beef Association, National Community Pharmacists Association, National Confectioners Association, National Cotton Council of America, National Fisheries Institute, National Grocers Association, North American Meat Institute, North American Millers Association, Peanut and Tree Nut Processors Association, Petroleum Marketers Association of America, SNAC International, Society of Independent Gasoline Marketers of America, U.S. Peanut Federation, United Fresh Produce Association

HOSPITAL, HEALTH SYSTEM, AND HEALTH ORGANIZATION GROUPS: “[A] number of state leaders have either issued Executive Orders or enacted legislation to support their health care facilities and professionals. These measures are designed to shield front-line providers from the legal exposure that results from actions and decisions undertaken in responding to an unprecedented public health emergency. However, not every state has taken action, and a federal legislative approach is necessary to ensure a consistent level of protection is available for every facility and provider. We would ask that Congress consider provisions to shield from unwarranted liability the facilities and providers responding in good faith to prepare for and treat patients during the pandemic. This protection would not apply to situations in which there is gross negligence or other misconduct.” (9 Hospital And Health Organizations, Letter to Sens. McConnell and Schumer, Speaker Pelosi, and Rep. McCarthy, 5/07/2020)

• Letter signed by: America’s Essential Hospitals, American Hospital Association, Association of American Medical Colleges, Catholic Health Association of the United States, Children’s Hospital Association, Federation of American Hospitals, National Association for Behavioral Healthcare, Premier healthcare alliance, Vizient, Inc.

But Democrats, Taking Their Marching Orders From Trial Lawyers And Big Unions, Are Objecting

“Democratic leaders have declared they will oppose such blanket protections …” (“White House And Congress Clash Over Liability Protections For Businesses As Firms Cautiously Weigh Virus Reopening Plans,” The Washington Post, 5/03/2020)

HOUSE SPEAKER NANCY PELOSI (D-CA): “We would not be inclined to be supporting any immunity from liability.” (“Negotiators Face More Contentious Issues Than State, Local Aid,” Roll Call, 5/06/2020)

• THE WALL STREET JOURNAL EDITORIAL BOARD: “Lawyers and law firms have contributed more than $8 million to [Senate Democratic Leader Chuck] Schumer’s campaigns, and some $1.6 million to Nancy Pelosi’s. They’ve given more than $4 million to the Democratic Senatorial Campaign Committee and nearly $3 million to the House Democratic committee in this election cycle. Individual candidates benefit from bundled trial-bar contributions.” (Editorial, “Stay Shut Down or We’ll Sue,” The Wall Street Journal, 5/06/2020)

“‘Providing some kind of blanket immunity shield is an idea that’s the result of the majority leader’s imaginary boogeyman of a flood of lawsuits, a parade of horribles that is a political ploy,’ Sen. Richard Blumenthal (D-Conn.) said Friday. He said the proposal would be ‘a non-starter.’” (“White House And Congress Clash Over Liability Protections For Businesses As Firms Cautiously Weigh Virus Reopening Plans,” The Washington Post, 5/03/2020)

“The American Association for Justice, the country’s foremost advocacy group for trial lawyers, dispatched lobbyists in negotiations over the CARES Act and the previous coronavirus relief bill, the Families First Coronavirus Response Act. Both in-house and outside lobbyists for the trial lawyers worked, as one federal filing put it, ‘in opposition to efforts to grant liability relief or immunity for injuries caused by products required to be manufactured or whose manufacture is subsidized by either bill.’” (The Daily Beast, 5/02/2020)

• “That lobbying campaign comes as class action lawsuits stemming from the virus are in the works around the country. They’re going after companies ranging from Target, which plaintiffs in California claim falsely inflated the effectiveness of its hand sanitizer, to pharmaceutical firms over allegations that they misled shareholders and the public about the prospects for the development of coronavirus treatments, to hospitals over allegations they violated employee safety protections by exposing nurses to the virus.” (The Daily Beast, 5/02/2020)

“Labor leaders reject the effort entirely. Mary Kay Henry, the president of the Service Employees International Union, … called the liability-limitation push ‘inhumane.’” (‘Businesses Seek Sweeping Shield From Pandemic Liability Before They Reopen,” The New York Times, 4/28/2020)