As coronavirus has upended life across the globe, the disruption has been followed by a wave of class action cases. The class action— once a uniquely American litigation mechanism— has taken root internationally and numerous international coronavirus related class actions have been filed. However, the United States still stands apart in the scope and number of class actions filed. The cases filed are as ubiquitous and varied as the disruptions that society has faced.
The Promise of Class Actions
Class actions are a form of representative litigation, where one individual brings a case on behalf of all others similarly situated. Class actions can be a powerful tool to achieve social benefits. By aggregating claims that might be too small to otherwise pursue, class actions can be used to hold companies accountable for harm and deter future bad behavior. Class actions may also be used to achieve critical injunctive relief that would not have necessarily been pursued by any one individual.
While class actions have been used to achieve social change in many contexts, they were particularly vital during the Civil Rights Era. Citizens and impact litigation organizations used class actions to challenge segregation and discrimination in areas such as public accommodation, education and employment, thus privately enforcing statutory and Constitutional civil rights.
However, using class action lawsuits to bring about institutional change poses several challenges, particularly in light of recent Supreme Court jurisprudence. First, arbitration clauses, now a routine feature of most consumer and many employment contracts, can preclude a consumer or employee from filing a class action. A series of Supreme Court cases over the last decade have approved this process, allowing arbitration agreements to sharply limit the availability of class actions. Further, the limits on class actions are built into Rule 23 of the Federal Rules of Civil Procedure and developed by the courts can make it difficult to sustain a class action. One key difficulty is certifying a class. For example, if individual issues predominate, a class cannot be certified. Another difficultly is proving standing, particularly in light of Spokeo v. Robbins. Finally, class actions may preference punishment of the defendant over compensation for the plaintiffs, meaning that the class can occasionally receive little to no direct relief.
Despite its potential weaknesses, the class action is a flexible tool that has morphed over time to serve many purposes. Now class actions are being pulled in a new direction to deal with unprecedented challenges from coronavirus.
Class Actions and Coronavirus
Hundreds of class action suits related to coronavirus have already been filed in the United States and as the pandemic continues to unfold, more class actions are likely to come. The National Law Review has been keeping an updated list of cases as they are filed and adjudicated. While the range of cases is staggering, there are some categories of cases with a disproportionate number of COVID-19 class actions. The most coronavirus related class actions have been filed against insurers. Plaintiffs claim that insurers wrongfully declined to cover COVID related losses, such as those resulting from forced business closures or cancelled events, or costs such as those related to medical treatments or COVID tests. Thus, insurers are facing numerous class action cases, largely asserting breach of contract and declaratory judgment claims.
In some instances, coronavirus has sparked entirely new categories of class actions. For example, a number of educational programs and institutions are facing class actions by students over campus closures, access to resources, and future operation plans. These cases are unprecedented and largely based on novel applications of legal theories. In other instances, the coronavirus related class action closely matches the theories of a more traditional class action. Coronavirus related securities class actions are a good example; public companies are facing class action claims by shareholders concerning statements and omissions about the impact of COVID-19 on their operations and performance. The theory behind these cases is quite similar to ordinary securities class litigation.
A few particularly interesting categories of coronavirus related class actions are discussed below:
Coronavirus in jails and detention centers:
The spread of coronavirus in jails and immigration detention centers has led to a flood of cases as prisoners and immigration detainees seek release from detention because of the risk of exposure to coronavirus. Many of these release cases have been filed as class actions, to hopefully provide relief to a broader swath of those detained or incarcerated. Prisoners and detainees have also used class action cases to try improve safety procedures and enforce institution’s compliance with CDC guidelines.
The proliferation of detention related cases has been met with mixed results. Some judges have moved swiftly, ordering immediate release of a number of prisoners and requiring compliance with CDC guidelines. Case law is rapidly developing as case after case is appealed; since March 3 coronavirus related detention cases have already reached the U.S. Supreme Court. Generally, class action cases have been useful tools in this context. Further, the proliferation of detention-related class actions has furthered a growing awareness of the circumstances facing incarcerated individuals, particularly as the country reckons with the United States carceral system.
Labor and Employment:
Within labor and employment, there is a diverse array of case types and theories. Employers are facing wage and hour, workplace safety, paid leave, WARN Act, ERISA, employee privacy, worker classification, disability accommodation, and discrimination claims. While employers were already liable for providing a safe work environment for their workers, coronavirus has introduced a number of new complications. Further, employers must ensure that employees are not being put at an increased risk when they are asked to come into work.
Employer liability cases may be a particularly challenging area given the interaction between class actions and other compensation or regulatory schemes. For example, workers compensation is intended to compensate employees for any occupational disease or injury. Employers may contend that worker’s compensation coverage should extend to coronavirus related health problems if the employee contracted COVID-19 through their work, which would preclude litigating this through a class action. However, such issues are likely to be hotly contested.
In many labor or employment COVID-19 class actions, one of the hardest issues will be proof of causation, to show an employee contracted coronavirus because of their employment. A number of states have already passed statutes creating a presumption of causation for workers employed in certain positions or industries.
Even so, liability remains a tricky issue; hospital liability illustrates one possible outcome, which may preclude class action litigation over these issues. When a number of hospitals were facing liability suits over their response to the COVID pandemic, several states passed statutes immunizing hospitals and healthcare workers from civil liability arising from the pandemic. Now, statutes that would similarly shield a broad swath of employers from coronavirus liability have been proposed in the U.S. Senate and in some instances, enacted by states. Thus, just as has already happened with hospitals, the government could delinate the bounds of employer liability, further limiting the impact class actions can have.
Given these complications, class actions in the labor and employment space are likely to continue evolving rapidly Further, as states continue to reopen, a host of new employment cases are likely to be filed. It will be interesting to watch how these class actions develop, particularly since the election and a potentially reshuffled federal political landscape could strongly impact the backdrop against which they are litigated.
State and Federal Executive Orders and Government Actions:
A number of cases have been filed against state and local government asserting that executive orders or other legislative actions violated a variety of civil and constitutional rights. These cases are particularly consequential as they have the potential to undermine or reverse states’ COVID-19 regulations, as recently exemplified by the Michigan Supreme Court’s decision that Governor Whitmer lacked the power to issue a number of specific emergency coronavirus orders.
While some of the cases may be dismissed as moot— particularly as cities and states across the country reopen— this set of cases offers a fascinating insight into how states’ regulation of coronavirus is being fundamentally challenged. Without a strong federal plan, states were largely left to take the lead in coronavirus planning. Now, their actions are being challenged in multi-pronged attacks. The issues being litigated are by and large issues of first impression that will lead to an exciting set of debates over government power and its constraints.
What comes next:
Each category of these cases will likely be heavily contested. In several categories like insurance class actions and employee class actions, both sides have suffered harsh financial losses due to COVID-19 and are now incentivized to try and avoid any further liability. In any case with a novel theory of class certification or a new conception of damages, there will be vigorous debate.
As employees return to work, businesses gradually reopen, and programs for rent and other relief continue or are re-authorized, different classes are likely to suffer further injury. Further, new issues are likely to arise as things like the development of a vaccine or voting irregularities are brought to the courts.
While class actions are likely to continue to be filed, it is worth considering the alternatives. Class actions can be extraordinarily successful at achieving relief, especially in injunctive cases. However, as discussed above, class actions can also result in high attorney fee awards with limited or no recovery for classes. If society values compensation for individuals or a comprehensive approach to coronavirus safety protocol, we may need to look outside of class actions and consider enacting statutory schemes.
Over the coming months, the class action will be tested across hundreds of cases and novel issues. It will be worth paying attention to where it succeeds and where it fails.