COVID-19 Related Class Actions – Strategy Considerations

Plaintiff’s attorneys attempting to capitalize on the chaos created by the COVID-19 pandemic have filed class motion lawsuits towards hospitality and leisure business firms, like lodges, timeshares, health and social golf equipment, amusement parks, ski resorts, and even home-owner’s associations, amongst others, searching for refunds of month-to-month charges and dues primarily based on alleged lack of entry or use of services and facilities brought on by a enterprise’ compliance with state and native operations restrictions and company pointers.

Many of the circumstances filed thus far have centered on breach of contract, tort and statutory shopper safety legislation theories of legal responsibility and restoration.

Sadly, there’s purpose to anticipate that this exercise will proceed, and doubtlessly even escalate in some states. Corporations that cost month-to-month membership dues or charges ought to be ready to reply shortly, decisively and strategically if their enterprise turns into a goal for a COVID-19 associated class motion.

This text affords a litigation guidelines with a high-level take a look at some necessary procedural and technique issues which will apply on a case by case foundation for defending towards these kind of class claims. Relying on the precise details at challenge, the choices introduced on this guidelines, the place obtainable, might issue into an strategy for firms to make use of in working with counsel to successfully handle and tackle a category motion associated to COVID-19.

Procedural and Venue Concerns

Elimination to Federal Court docket: If the plaintiff filed the case in state court docket, think about removing to federal court docket underneath the Class Motion Equity Act (“CAFA”), or probably conventional variety jurisdiction or federal query jurisdiction. As a result of COVID-19 associated claims are usually being asserted on behalf of all members or prospects, the CAFA necessities of minimal variety, at the least 100 class members and better than $5 million in controversy for federal jurisdiction are sometimes happy. To the extent an arbitration settlement exists, a federal court docket venue is preferable for searching for to compel arbitration underneath the Federal Arbitration Act.

Arbitration Provision with Class Motion Waiver: Is there an settlement to arbitrate that may function a foundation to compel arbitration (i.e., consumer settlement, membership settlement, service contract, on-line enrollment kind)? Most asserted COVID-19 associated claims focusing on the hospitality and leisure business come up from or contain offering providers or different efficiency pursuant to a shopper contract, which regularly comprise an arbitration provision with class motion waiver. Arbitration agreements with class motion waivers are enforceable underneath the Federal Arbitration Act. See AT&T Mobility v. Concepcion, 563 U.S. 333 (2011).

Selection of Venue: If arbitration will not be obtainable, is there a shopper contract with a selection of venue provision or discussion board choice clause that governs the place any litigation is to proceed? Take into account whether or not a movement to alter or switch venue to a extra favorable discussion board exists primarily based on contract or another floor, just like the frequent legislation doctrine of discussion board non conveniens. See Atlantic Marine Development Co. v. U.S. District Court docket for the Western District of Texas, 571 U.S. 49 (2013); see additionally 28 U.S.C. 1404(a).

Selection of Regulation: A associated contract consideration is whether or not a selection of legislation provision exists that dictates what legislation applies? If that’s the case, does that selection of legislation provision cowl contract primarily based claims and non-contract primarily based claims? Relying on the wording of the selection of legislation provision, there could also be a query of what legislation applies to non-contract primarily based claims, like tort or statutory shopper safety legislation claims. Be aware additionally that the legislation of the discussion board state the place a category motion is venued doesn’t essentially govern the claims of all class members. See Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985).

Particular Jurisdiction Problem: Beneath Bristol-Meyers Squibb v. Superior Court docket, 137 S. Ct. 1773 (2017), district courts are precluded from exercising particular jurisdiction over the claims of non-resident plaintiffs in state mass tort actions until the plaintiff can present enough contacts with the discussion board and the details giving rise to the plaintiff’s declare. Though courts in numerous jurisdictions are cut up on the appliance of Bristol-Myers to nationwide class actions, relying on the venue, a problem to particular jurisdiction for out-of-state plaintiffs is value consideration on the early litigation stage.

Protection Technique Concerns

Lack of Standing: Did the named plaintiff endure an damage actually or hurt enough to confer Article III standing? See Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). Relying on the service or efficiency at challenge, the named plaintiff (and different shoppers) might not have sustained cognizable damage or hurt due to actions taken by the defendant to mitigate damages, present cheap options or substitutions for efficiency, make reparation, or postpone efficiency (versus cancelation) for a later time when not prohibited or restricted, or when in any other case extra possible to do.

No Breach of Contract: Relying on the language of a shopper contract, an argument might exist to help a displaying of no breach if an settlement permits for cheap modifications, substitute efficiency or the flexibility to make reparations in the course of the contract time period, which was performed or provided by the non-performing get together.

Class Certification: The small print of a protection plan to defeat class certification will rely upon the case-specific details. Nevertheless, with COVID-19 associated class claims, it’s doubtless that the simplest certification protection will concentrate on variations inside the proposed class regarding contract phrases, efficiency, derived advantages, causation and damage, hurt or injury, and the existence of state and native orders or directives or different circumstances affecting the defendant’s capability to carry out. Variation amongst putative class members will form arguments associated to the Rule 23 necessities of predominance and typicality.

Pressure Majeure: Does the buyer contract comprise an relevant pressure majeure provision? The use by a nonperforming get together of a pressure majeure provision is contract language particular, and activates the actual details at challenge. Accordingly, step one is to find out whether or not a COVID-19 associated occasion qualifies as pressure majeure underneath the contract. If that’s the case, was nonperformance by the defendant foreseeable and capable of be mitigated by the plaintiff, and is efficiency by the defendant really unattainable, such that it’s excused. State and native authorities imposition of prohibitions and restrictions on enterprise operations, journey, venue capability, gatherings and motion normally ought to be thought-about to evaluate whether or not the circumstances in a selected case give rise to a qualifying occasion for pressure majeure.

Frustration of Function: The place a pressure majeure protection will not be obtainable, the frequent legislation protection of frustration of objective might exist when an occasion unexpected on the time of contracting undermines the events’ principal objective for coming into right into a contract such that any moderately obtainable means to carry out is materially completely different from what the events contemplated once they fashioned the contract. One consideration when asserting this protection is that if profitable, the contract is terminated, which, relying on the scenario, will not be a fascinating end result.

Impossibility or Impracticability of Efficiency: A associated, however completely different, frequent legislation protection to frustration of objective is the doctrine of contract impossibility or impracticability. Contract impossibility happens the place efficiency of a contract responsibility is excused primarily based on a change in circumstances, which the events didn’t anticipate on the time of contracting, that makes efficiency of the contract actually unattainable. Given the issue of proving precise impossibility, many courts have shifted to an impracticability normal the place contemplated efficiency of an obligation is excused on a displaying that it’s unreasonably tough or excessively expensive to carry out, though potential, due to an unexpected change in circumstances.

Change of Regulation: A change within the legislation might render a legitimate contract unenforceable as unlawful if it’s not potential to attain the item of the contract with out violating a legislation. Current state and native orders, pointers or directives in impact in some jurisdictions to deal with the COVID-19 pandemic might, in sure cases, require compliance that’s inconsistent with the contract goal or efficiency. As a result of these kind of public coverage legal guidelines apply instantly primarily based on overriding public-interest issues, many companies are usually not capable of comply whereas on the identical time offering contracted-for providers or different efficiency that was contemplated on the onset.