Class Action Claims Spike in the COVID-19 Era

    Coronavirus-related litigation has quickly emerged in the wake of pandemic shutdowns. As schools, airlines, entertainment venues, and scores of other businesses have been forced to severely alter operations, class action lawsuits have been the most prominent legal response. In fact, as of May 2020, at least 560 class actions related to COVID-19 impacts have been filed across the U.S. court system. The pandemic has proven disruptive across industries and the increasing volume of class action filings indicates just how vastly the COVID-19 crisis has affected the country’s business and economical health.

    Class Actions Across Industries

    Class action litigation has seen a steady uptick over the past five years. This number was expected to increase in 2020, even before the arrival of a global pandemic. In examining the claims filed this year, COVID-19 class action lawsuits largely fall under four main categories.

    Business Interruption Insurance Claims

    A quarter of class actions are related to business interruption insurance. Business proprietors across industries—restaurants, gyms, dental practices, even an NBA team—have been denied payment after filing claims with their business interruption insurance providers. Many providers introduced viral exclusion clauses after the SARS outbreak and are now refusing to cover business losses attributed to COVID-19.

    Education Refunds

    Another quarter of class actions have been filed in connection to educational programs disrupted by the pandemic. Colleges and universities across the country have been named in class action lawsuits seeking to recover tuition, room and board, and other related payments after institutions transitioned to online learning during the Spring 2020 term. Students claim their virtual classes were not up to par with the on-campus experience and not worth the full term’s cost.

    Canceled Events & Services

    About 10% of class actions are also seeking refunds, but these are aimed at privately owned businesses and event venues. The businesses named in these suits include service and event-based organizations such as gyms, live entertainment providers, and theme parks. The plaintiffs are demanding money back from businesses who denied reimbursement after access to the venue or a certain event was prevented by COVID-19. In these cases, plaintiffs typically seek refunds for items like theme park season passes, gym memberships, or event tickets.

    Ongoing Employment Suits

    The fourth category of class action lawsuits existed prior to the start of 2020, but its growth has been accelerated by the pandemic. These are cases in which workers, often represented by unions, seek redress for claims that their employers are failing to adequately protect worker safety. This includes employers in the retail, hospitality, and travel industries who allegedly failed to provide adequate protective equipment to employees and enact sufficient safety protocols.

    Predictions for Future COVID-19 Class Actions

    In some states, governors or lawmakers may change the balance of COVID-19 cases by offering limited protection from liability in certain instances. For instance, in July 2020, Tennessee became the latest state to enact liability protections for health care providers from lawsuits involving COVID-19 infections, except where “gross negligence or willful misconduct” were involved. The state’s legislature has also discussed extending such protections to broader categories of businesses, schools, and health services to shield them from “frivolous coronavirus lawsuits.” Should other states follow suit, this could present a major blocker to ongoing class actions.

    New industries for COVID-19 class actions are also likely to emerge from the ongoing pandemic. One focus may very well be the correctional system, which has proven to be a hotspot for coronavirus infection. In July, the Southern Center for Human Rights and the American Civil Liberties Union of Georgia filed a federal claim against the sheriff of Clayton County, Georgia, on behalf of four jail inmates who contracted COVID-19. As of early June 2020, 45 people at the prison, including 32 inmates, had tested positive for the coronavirus.

    The suit claims that the jail’s understaffed, unsanitary conditions, plus the failure of the sheriff’s office to respond to the risk of an outbreak, not only caused the plaintiffs’ illnesses but constitute a violation of the Eighth Amendment right to freedom from cruel and unusual punishment, as well as a violation of the Fifth and Fourteenth Amendment rights to due process. The plaintiffs seek to make the claim a class action lawsuit. Similar claims from the inmates of other jails, prisons, and similar institutions may also arise as the virus continues to spread.

    Finally, class actions may surface in connection to businesses mandating face coverings. One such case was already filed in Pennsylvania by plaintiffs who allege three Pittsburgh-area theme parks violated the Americans with Disabilities Act by refusing entry to their disabled children who are unable to wear masks. As more states require masks, it is likely that more customers or businesses will begin to file lawsuits challenging mask requirements or, conversely, the demand that businesses enforce these requirements.

    The Role of Expert Witnesses in COVID-19 Class Actions

    Class action lawsuits related to COVID-19 and its effects can vary widely in their facts, theories of injury, and the relief demanded. However, all these cases in some way involve the novel coronavirus and its effects on people and the environment. Consequently, the presence of epidemiologists and other experts who can provide insight into the spread and transmission of the virus will likely be a hallmark of lawsuits related to COVID-19. These experts will help fact-finders understand how the virus spreads, why certain steps do or do not slow the rate of infection, and what alternative steps, if any, are available, if any.

    Some cases may require the presence of other experts, as well. For instance, cases involving business interruption insurance may benefit from experts who can explain why certain insurance provisions are structured in a way that does or does not allow for coverage of losses related to COVID-19. Cases involving transmission in a medical setting may require an expert who can discuss the standard of care and why certain behaviors by a defendant healthcare provider met or breached that standard.

    As COVID-19 continues to disrupt daily life, it is reasonable to assume that experts in a wide range of fields will be asked to discuss the coronavirus within the context of their realm of expertise.