COVID-19: Challenges And Considerations For Coronavirus-Related Litigation

The outbreak of the novel coronavirus (COVID-19) has affected nearly all individuals and businesses in the United States. With over 350,000 cases confirmed worldwide, including over 30,000 cases in the United States, federal, state, and local governments are implementing a variety of measures to protect citizens and prevent the spread of the virus.

The federal government has issued a series of orders, recommendations, and guidance concerning COVID-19. However, the majority of existing legal requirements have been issued by state and local governments to address the situation as it evolves in their communities. Businesses therefore are subject to different, and occasionally conflicting, orders across the jurisdictions in which they operate. These orders, though important and well-intentioned, may have at times unintended consequences. While social solidarity and public-private partnership are critical in this time of national crisis, businesses may, in some circumstances, find that litigation is necessary to protect not just their own private interests but also the broader public interest where the unintended consequences of emergency government actions could needlessly inflict economic harm or even harm the public health. The decision to litigate is always one to be carefully considered. But during extraordinary times like these where important public health concerns are at stake, any potential litigation—and especially litigation against the government—must be closely examined and presents practical and strategic challenges and considerations. This alert addresses some of those challenges and considerations.

I.Current COVID-19-Related Litigation

Thus far, COVID-19-related litigation has largely involved private disputes. For example, purported class actions have been filed against Inovio Pharmaceuticals and Norwegian Cruise Lines, alleging violations of federal securities law based on statements relating to coronavirus. McDermid v. Inovio Pharmaceuticals, Inc. et al., No. 2:20-cv-1402-GJP (E.D. Pa.); Douglas v. Norwegian Cruise Lines et al., No. 1:20-cv-21107-RNS (S.D. Fl.). And passengers of the Diamond Princess and Grand Princess cruise ships have sued Princess Cruises for negligence, alleging that Princess Cruises exposed them to COVID-19. Austin et al. v. Princess Cruise Lines Ltd., No. 2:20-cv-02531-DSF-RAO (C.D. Cal.); Dalton et al. v. Princess Cruise Line, Ltd., No. 2:20-cv-02458-GW-PJW (C.D. Cal.).

The few government-facing lawsuits that have been filed to-date concern election or detention issues, such as litigation seeking voting accommodations for residents of Florida impacted by coronavirus, and litigation seeking the release of individuals in ICE detention who are at high risk of serious illness or death in the event of COVID-19 infection. See, e.g., Williams et al. v. Desantis et al., No. 1:20-cv-00067-RH-GRJ (N.D. Fl.); Dawson et al. v. Asher et al., No. 2:20-cv-00409-JLR-MAT (W.D. Wash.).

Despite the lack of current government-facing litigation related COVID-19, it seems likely that as States and localities impose increasingly significant restrictions, litigation will follow.

2. Potential Litigation Concerning Laws, Rules, and Regulations Addressing COVID-19

   Businesses grappling with a cascade of emergency orders from local, state, and federal governments will generally find it more appropriate and expedient to raise concerns and resolve issues directly with policymakers. But under certain circumstances, litigation may prove necessary as a last resort. Well-meaning government regulations may exceed the scope of government authority and generate...