Coronavirus (COVID-19) Litigation Defense
While the novel coronavirus (COVID-19) pandemic has brought life to a standstill in many respects, in many others, things are moving faster than ever. Companies are being forced to adopt work-at-home and emergency response policies and procedures on the fly, and healthcare providers are facing unprecedented demand amidst a shortage of ventilators, personal protective equipment (PPE), and other essential supplies.
Even for businesses that do their best to help flatten the curve and comply with the myriad laws, regulations, and executive orders related to COVID-19, the litigation risks are still very high. From federal enforcement action to wrongful death claims, companies must take exhaustive measures to mitigate their risk, and they must be prepared to defend themselves when claims arise.
We are Representing Companies Nationwide During the COVID-19 Crisis
Our firm is representing companies, owners, and executives nationwide during the COVID-19 crisis. With a defense team comprised entirely of senior attorneys (many of whom previously served with the U.S. Department of Justice (DOJ)) and former high-ranking agents with the DOJ, FBI, IRS, and other agencies, we are able to efficiently and effectively defend clients in all types of civil litigation and law enforcement matters. Whether your company has been sued, you have received a civil investigative demand (CID), or your company has been subpoenaed by the DOJ, we can use our experience to protect you.
All types of companies can expect to face lawsuits and investigations arising out of the COVID-19 crisis. This includes, but is by no means limited to, civil lawsuits and law enforcement investigations involving:
Employers face a variety of risks for employee claims related to COVID-19. While this includes claims related to coronavirus exposure (more on this below), it also includes claims related to wages, salary, and paid time off (PTO), as well as claims involving allegations of discrimination and wrongful termination. With regard to PTO, many companies are likely to face claims related to the Families First Coronavirus Response Act (FFCRA). This law expands on the job-protected leave provisions of the Family and Medical Leave Act (FMLA), and it entitles employees to paid job-protected leave in many cases.
Many companies will face claims involving exposure to COVID-19. This includes not only employee claims (which may be covered by companies’ workers’ compensation policies), but customer and patient claims as well. We are already seeing class action claims being filed against cruise lines and various other entities, and it is likely only a matter of time until many healthcare providers find themselves the targets of multiple COVID-19 exposure lawsuits.
For healthcare providers, the COVID-19 outbreak also presents the risk for malpractice and other negligence-based claims related to triage, diagnosis, and treatment. This includes not only the handling of COVID-19 patients, but the handling of other patients who are denied treatment and whose treatment is delayed as well.
Regardless of the actual number, and regardless of how it might compare to other causes of mortality, the death toll from the COVID-19 outbreak in the United States is going to be high. This means that the number of wrongful death claims arising out of the outbreak is going to be high as well. Due to the nature of the outbreak, companies targeted in one wrongful death claim are very likely to be targeted in others as well, and this has important implications for how companies defend against COVID-19 wrongful death claims.
Breach of Contract and Customer Claims
Outside of claims related to COVID-19 exposure, companies will also be at risk for various other types of coronavirus-related claims. This includes breach of contract claims related to non-payment and non-performance. In particular, companies that cannot meet their contractual obligations to their customers could be at risk for civil lawsuits; and, while force majeure may provide a defense in some cases, any attempts to avoid contractual liability are likely to be challenged. Whether and to what extent companies can negotiate out-of-court resolutions that preserve their business relationships will depend on the particular circumstances involved in each individual dispute.
The U.S. Securities and Exchange Commission (SEC) is warning investors of coronavirus-related investment scams; and, while it has offered some flexibility to publicly-traded companies with respect to meeting their disclosure obligations, it has indicated that companies are still expected to maintain compliance. Companies and brokerage firms accused of failing to timely disclose material information, misrepresenting financial risks, and putting their interests before those of their investors could face civil litigation (including FINRA arbitration) and SEC enforcement action.
Allegations of predatory lending are likely to be pervasive as a result of the COVID-19 crisis. The longer millions of Americans are out of work, the more desperate they will become. This will drive up the demand for credit, and this in turn will lead to predatory lending practices. There are strict rules around consumer lending, and companies that are accused of bending or breaking these rules will be at risk for liability in civil lawsuits and federal law enforcement proceedings. As a result, banks, mortgage lenders, credit card companies, and businesses that extend credit to their customers all need to be wary of engaging in any practices that could even arguably cross the line.
Unlawful Foreclosures and Collections
Under the Coronavirus Aid, Relief, and Economic Security (CARES) Act, servicers of federally-backed mortgage loans are required to offer forbearance and delay foreclosures for homeowners who are facing financial hardship due to the COVID-19 crisis. While the CARES Act does not apply to non-federally-backed loans, governors in several states have called upon banks to offer relief to homeowners who need it.
In addition to unlawful foreclosures, various other types of collection efforts during and after the novel coronavirus pandemic have the potential to lead to consumer claims and law enforcement action as well. As a result, prior to conducting collection efforts, banks and other lenders must ensure that their efforts remain legally compliant under the various state and federal laws, regulations, and executive orders that have been implemented to protect consumers during the COVID-19 crisis.
The DOJ and the Attorney General’s Offices of various states across the country are targeting price gougers during the novel coronavirus pandemic. These efforts have been spurred by multiple reports of companies inflating the prices of hand sanitizer, masks, toilet paper, and other essential items during the crisis. Although no price gouging law exists at the federal level, the DOJ can pursue price gougers under various consumer protection statutes. At the state level, most states have laws that specifically prohibit artificial price inflation during national emergencies.
False and Misleading Advertisements
Another issue that is not specific to the novel coronavirus pandemic but that is likely to spur coronavirus-related litigation is the publication of false and misleading advertisements for consumer products. This includes, but is not limited to, advertisements regarding the effectiveness of sanitizing products, face masks, medications, and other health and safety products.
In order to make these types of claims, companies must have clear substantiating documentation, and they must comply with all applicable advertising and consumer protection laws and regulations. Companies that sell products in brick-and-mortar retail locations and online (including through Amazon and other selling platforms) are at risk for being targeted in consumer complaints as well as state and federal law enforcement investigations.
Data Security Breaches
When transitioning employees to working remotely, companies must ensure that they have adequate data security protocols in place. Likewise, when setting up temporary facilities and conducting virtual patient visits, healthcare providers must maintain compliance with the Health Insurance Portability and Accountability Act (HIPAA) and take other necessary measures to protect patients’ personal health information. Hackers will be looking to exploit vulnerabilities during the COVID-19 crisis, and failure to adequately protect health data, employment data, other personal information, or commercially-valuable information could lead to various types of civil and enforcement litigation.
National Security Matters
Finally, companies in various industries, and academic institutions, must also be cognizant of the risk of threats with national security implications. This includes not only cyberattacks, but also the risk of employees sharing data with foreign entities and foreign nationals with malign intent covertly infiltrating their operations. Importing and exporting data and physical assets can have national security implications as well. Companies and institutions that fail to adopt the necessary policies and procedures to mitigate national security risks related to the COVID-19 crisis could find themselves facing intense scrutiny from the DOJ, the Department of Homeland Security (DHS), and other federal authorities.
Contact the Federal Defense Lawyers and Former Federal Agents at Oberheiden P.C.
If your company has been sued or is facing an investigation related to the novel coronavirus pandemic, it is important that you engage experienced defense counsel immediately. To discuss your situation with a senior defense attorney or former federal agent at Oberheiden P.C. in confidence, call 888-680-1745 or request a free case assessment online now.