Klonoff on COVID-19 Aggregate Litigation

Bob Klonoff has posted on SSRN a draft of his article, COVID-19 Aggregate Litigation: The Search for the Upstream Wrongdoer, which is forthcoming in the Fordham Law Review. Here’s the abstract:

COVID-19 has generated many lawsuits—including thousands of class actions—in which the plaintiffs claim that the defendants caused economic or health-related harm. Although the COVID-19 context may have led many plaintiffs’ lawyers to believe that the cases would be received with great sympathy, courts thus far have been very cautious, focusing closely—as they do in non-COVID cases—on whether the defendant has breached clear contractual commitments or engaged in tortious or other wrongdoing. If anything, courts have been more skeptical and cautious in the COVID context, recognizing that everyone has suffered from COVID and that, in many instances, defendants themselves have attempted in good faith to navigate the challenges raised by the pandemic. Because of space limitations, this article focuses primarily on three categories of cases that have already generated numerous rulings: business interruption insurance claims; tuition reimbursement actions; and suits against prisons and immigration detention facilities. These three categories of cases line up on a continuum based on whether the proximate cause of the harm is COVID itself or the conduct of the defendants. At one end are the business interruption insurance cases, which have received hostile treatment from almost all courts that have considered those claims. The underlying insurance policies almost universally require “physical loss or damage” to property, a requirement that is hard to square with losses caused by a pandemic. In the middle are the tuition refund cases, which have seen mixed success—with many (but not all) courts granting motions to dismiss after finding no contractual commitment to in-person teaching. At the other end is the category of cases raising COVID health and safety issues at prison and immigration detention facilities; on the merits this is the strongest of the three categories, given the clear legal duty of government officials to protect the health of those in their custody. Yet, even in this context, many courts have declined to authorize injunctive relief, finding that the officials involved have attempted in good faith to protect their populations from COVID. At bottom, courts have commendably stayed focused on the merits and have not been swayed by the enormity of COVID or the large numbers of claims. After discussing the three-above categories, this article also briefly examines: (1) consumer, labor, and securities fraud COVID-related cases; (2) COVID cases involving arbitration clauses and class action waivers; and (3) the handful of classwide settlements thus far in COVID-related litigation.