Daily Dicta: The Coronavirus Diaries
Creative lawyers have been busy filing a variety of coronavirus-related litigation--though none that addresses the most shameful shortcoming.
March 16, 2020 at 02:15 AM
6 minute read
"Mom, my throat hurts," my 17-year-old daughter told me six days ago, back when the state of the world was alarming but not apocalyptic.
I felt her forehead. A bit warm—99.5, according to the thermometer. Normally, this wouldn't have concerned me in the slightest, but I kept her home from school the next day.
Then the cough started, dry and hacking, keeping her up at night. She said her chest felt tight, but she wasn't having difficulty breathing. Her fever came and went, but it was always low-grade. No stuffy nose, so it didn't exactly seem like a cold. Overall, she felt lousy, but not awful.
I called her doctor ("Do NOT bring her in," the receptionist said), and was told she wasn't eligible for coronavirus testing.
So all I could do was worry. About her—though I know coronavirus cases in teenagers are almost invariably mild, if not undetectable—and quite frankly, about me and my husband. Coronavirus cases in our age group are not as mild.
And then … she got better. Over the weekend, her fever and cough went away, though she's still a bit tired. Does this mean she had an unrelated virus? Or is this what COVID-19 looks like in a 17-year-old?
Who knows?
But if she was in fact positive, then I wouldn't have gone to the grocery story on Saturday. And my husband (a lawyer) would not be in court today. Neither of us feels sick—but the virus has a long incubation period. It's impossible to make informed decisions when you don't have information.
Litigation can address many problems—but the shameful shortage of tests doesn't seem to be something it can fix.
That said, creative lawyers have been busy filing a variety of coronavirus-related litigation.
Some suits are almost sure to fail, like a putative class action filed on Friday in Florida's Southern District against the People's Republic of China. Brought on behalf of more or less every person and legal entity in the United States, the suit alleges that the PRC knew the virus "was dangerous and capable of causing a pandemic, yet slowly acted, proverbially put their head in the sand, and/or covered it up for their own economic self-interest."
(Based on that criteria, shouldn't the Trump administration be a co-defendant?)
None of the named plaintiffs in the suit by Boca Raton-based personal injury firm Berman & Berman claims to have contracted COVID-19. Instead, the complaint asserts that they "have or are virtually certain to suffer physical illness or death, as well as emotional distress, and its physical manifestations, from the effects of the outbreak, and other damages."
No doubt that's true—you'd have to be a department store mannequin not to suffer at least some emotional distress these days—but that's not going to get a class certified.
It wasn't the only coronavirus-related class filed last week in Florida. Lawyers from Armas Bertran Pieri sued Amazon in state court for charging "grossly unconscionable" prices for items including toilet paper and hand sanitizer. Florida Governor Ron De Santis declared a state of emergency on March 9, and according to the complaint, it's illegal under the state's Deceptive and Unfair Trade Practices Act to jack up prices after such a declaration.
Name plaintiff Stephanie Armas (whose lawyers include J. Alfredo Armas—relationship unclear) says she paid Amazon $99 for 36 rolls of toilet paper and $199 for two 1-liter bottles of hand sanitizer—items that normally sell for a fraction of the price.
"Unfortunately, retailers, such as the defendants are preying upon the public's fear of a surging epidemic and using COVID-19 as an opportunity to pad profits by way of unlawful price increases," states the complaint filed in the Eleventh Circuit Court in and for Miami-Dade County, Florida.
Another hand sanitizer class action was filed in the Southern District of California targeting Vi-Jon Inc., which makes Germ-X. The plaintiffs claim that the company in ads "affirmatively—and falsely—claims that Germ-X provides 'Coronavirus/Flu Prevention.'"
"[A]s the FDA Warning Letter has confirmed, there are no 'adequate and well-controlled studies' supporting a representation that alcohol-based hand sanitizers produce a clinical reduction in infection or disease of the flu or other viruses," states the complaint by the Kazerouni Law Group.
Wait what? Hand sanitizer is no good? Then why are we paying $100 per bottle for it on Amazon?
Another interesting suit was filed in Utah federal court on Thursday and hastily settled on Saturday before the complaint had even been served.
That was probably a good call by defendant SME Entertainment Group—and by extension, the rock band The Killers (not named in the suit).
The Killers (whose hits include "Somebody Told Me" and "Mr. Brightside") were slated to perform at the X4 Experience Management Summit in Salt Lake City, which is put on by Utah tech firm Qualtrics. About 16,000 people were expected to attend the March 10 – 13 event, with a lineup that also included keynotes by Michelle Obama and Ellen DeGeneres.
Citing the coronavirus, Qualtrics pulled the plug on the event on March 3, announcing that it would be rescheduled for a later date. "The vast majority of the participants and presenters engaged for X4 supported Qualtrics' decision and are working with Qualtrics to reschedule their participation," states the complaint by lawyers from Ray Quinney & Nebeker.
But not The Killers. "SME and The Killers refused to cancel (or postpone) their performance and, instead, insist on full payment, claiming that there is no health risk sufficient to justify cancelation under the agreement," Qualtrics alleged.
No sufficient health risk? Really? I'm pretty sure that's not a winning argument these days.
Qualtrics sued SME seeking declaratory relief. On Saturday, the parties announced the case had settled and "are all pleased that they were able to act in the best interest for the safety of attendees, the fans, and the community."
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