Thursday, June 25, 2020
Two things have emerged with respect to the new public nuisance filings. First, plaintiffs seem to be doing better in state than federal courts, which is an outcome I anticipated. Second, trial level judges do not seem to be analyzing public nuisance issues especially deeply. For this reason I am reluctant to explore trial court rulings, like the one yesterday in Illinois, in much depth. If defendants appeal, it must happen quickly, and there will be a good deal more analytical material to work with then.
One thought crossed my mind today. It is not difficult to imagine a patchwork of rulings in which plaintiffs prevail in “blue” states and do not prevail in “red” states. The fear of national nonuniformity of employment benefit regulation drove implementation of sweeping ERISA preemption, which is an unsettling thought.
In any event, the Illinois trial court ordered two entities, “McDonald’s Restaurants of Illinois” and “DAK4,” not to train employees on social distancing in a way that is inconsistent with the Governor of Illinois’s Executive Order; and to enforce mask wearing policies when employees are “not 6 feet apart to come into compliance with the Governor’s Order.” The court's order explicitly excludes McDonald’s corporate and McDonald’s USA “because they do not own any of the McDonald’s at issue here,” (which is a regrettably limited analysis of a potential joint employer issue). It also did not enjoin the “35th Street store,” apparently because of a change in the store’s ownership (I do not see the discussion of successor liability one might have expected).
As in the Oakland, CA case, plaintiffs obtained no monetary damages, so the workers' compensation/quid pro quo question is not in play. Interestingly, the negligence theory was flatly denied on standing grounds. See pp. 29-30). You cannot have negligence without injury, and the court found none -- which, as an aside, renders the injunction entirely anticipatory. Given the limited scope of the order, and the absence of significant liability, I would not expect an appeal by the defendants, at least at this juncture. (Unless, of course, defendants now seek a war of attrition to make a point - I do not see how plaintiff attorneys’ fees would not be a problem considering the lack of a monetary recovery).
The Oakland case seems to me more likely to generate an appeal, requiring as it did: affirmative granting of sick leave requests, alteration of stay-at-home polices, management training, deep cleaning of company facilities by “professional cleaners,” provision of “adequate” masks and gloves, wellness checks and temperature testing, paid breaks every 30 minutes for handwashing and “other sanitization procedures,” contact tracing of all persons known or suspected to have been infected with the Covid-19 virus while physically present at the restaurant (including employees), and post-diagnosis paid employee leave for the duration of the Alameda Public Health Quarantine Order. I will be surprised if that TRO is not appealed somewhere.
Michael C. Duff