The coronavirus pandemic may have brought large portions of the economy to a grinding halt, but it hasn't slowed plaintiffs' attorneys. Indeed, recent filings across the country suggest that there may soon be a surge in virus-related litigation, particularly as to a handful of specific areas, including professional liability, class-action lawsuits, and wrongful death.
1. Claims Against Attorneys
The virus has significantly impacted the judiciary and upended scheduling deadlines. Given that communication, or lack thereof, is fertile ground for professional liability claims, we can anticipate a spike in legal malpractice cases arising from the failure of lawyers and law firms to adequately keep their clients abreast of altered deadlines. As contemplated by Model Rule of Professional Conduct 1.4(a)(3), lawyers and law firms must keep clients reasonably informed about the status of their cases during the pandemic. This includes updating clients, in writing, about the status of their cases and any impacted deadlines. As we've discussed in an earlier post, smart attorneys will keep a separate logbook in which they document their pandemic-related correspondence, including correspondence with clients concerning orders and updates from various courts that could impact deadlines.
2. Claims Against Financial Services Professionals
Historically, turbulent times have resulted in an upswing of claims against brokers and other financial services professionals. The number of FINRA cases filed by customers against financial services professionals dropped significantly from a high of 7,137 in 2009, after the last financial crisis, to a mere 3,757 in 2019. Since the pandemic has caused a precipitous drop in the capital markets, with investors losing nearly $3 trillion by the end of February 2019, we can anticipate a surge in new case filings, including cases that revolve around questions of suitability, execution, overconcentration, and fraud.
Given the above, now is the time to examine correspondence and ensure that adequate communications exist concerning whatever actions were taken when the markets were falling. Obviously, one cannot go back in time, but it never hurts to send follow-up correspondence documenting suitability, sales practices, memorializing events, the status of accounts, and thoughts on what might happen in the not too distant future, while at the same time, internally examining and/or enforcing supervisory procedures.
3. Business/Premises Liability
Plaintiffs' attorneys are preparing pandemic-centered lawsuits against business owners. Given that businesses have a general duty of care to use reasonable care to keep their premises safe for staff and customers, we can anticipate that the conditions caused by the pandemic will spawn new litigation directed at business owners and potentially subcontractors including, for instance, janitorial/cleaning subcontractors. For example, liability may attach if a business fails to send home symptomatic employees, fails to reasonably provide adequate supplies and equipment to sanitize the establishment, or in some other manner fails to reasonably prevent the spread of the coronavirus. Now is the time for businesses to ensure that they are taking the proper precautions to safeguard customers and that they are reasonably communicating the proper protocols to employees.
4. Wrongful Death Litigation
There has been a series of high profile wrongful death suits linked to the pandemic, including lawsuits by the relatives of an Illinois Walmart employee who died from the virus, the wife of a Texas sausage factory worker, the relatives of a cruise ship employee, and even a class action against a halfway house. Further, lawsuits have been floated by lawyers representing workers at plants owned by Tyson Foods, Conagra, and others that may be forced to open. The wrongful death suits have generally alleged that the employers were negligent in failing to implement, promote, and enforce social distancing; in failing to properly cleanse and sanitize the facility in order to prevent the spread of the coronavirus; and in failing to provide adequate personal protective equipment. While there has been talk about implementing some kind of liability shield for businesses, absent statutory immunity, business need to ensure in the near term that they have taken steps to mitigate the risk of lawsuits. This will necessarily involve documenting, in writing, the reopening narrative to include detailed information on, among many others, best practices, workplace safety, implementation, monitoring, and enforcement of all actions taken to safeguard against the transmission of the virus and adhere to applicable government guidance.
If you have questions about your business's potential liability arising from COVID-related claims, please contact the author, George Mahaffey.
 Rhaney v. Univ. of Md. E. Shore, 388 Md. 585, 880 A.2d 357 (2005).