"It's important to say this clearly and out loud: there is no crisis of Covid-19 litigation. It's made-up, it doesn't exist, it's a ploy to get businesses out of paying for compliance."
Shielding corporations from lawsuits by customers and workers who contract Covid-19 on the job is reportedly the top priority for Republican Senate Majority Leader Mitch McConnell heading into negotiations over the next economic stimulus package.
But consumer advocacy group Public Citizen said in an issue brief (pdf) Thursday that the supposed "epidemic" of litigation McConnell claims he's trying to prevent is nothing more than a scare tactic concocted by the U.S. Chamber of Commerce and other corporate lobbying groups to justify their demands for sweeping legal immunity.
"While both the Chamber and U.S. Senate Majority Leader Mitch McConnell argue that immunizing businesses during a pandemic is the only way to stop a flood of litigation, the evidence shows that there is no flood."
—Remington Gregg, Public Citizen
"As we grapple with the biggest public health crisis of our lifetime, the Chamber is using a pandemic as cover to get a priority wish-list item for its members: five years of immunity from tort liability," Remington Gregg, counsel for civil justice and consumer rights at Public Citizen and author of the brief, said in a statement.
"While both the Chamber and U.S. Senate Majority Leader Mitch McConnell (R-Ky.) argue that immunizing businesses during a pandemic is the only way to stop a flood of litigation," Gregg added, "the evidence shows that there is no flood."
The brief details the Chamber's decades-long history of fearmongering over impending torrents of litigation that ultimately never occurred, such as its false prediction in 1999 that the so-called Y2K glitch would lead to an overwhelming number of lawsuits against businesses.
"Like Chicken Little crying 'the sky is falling,' the Chamber over the years has repeatedly attempted to scare lawmakers, media, and the public," the brief says. "Now, yet again, the Chamber is warning of a new flood, as it tries to take advantage of the coronavirus pandemic to undermine state-law protections that provide accountability and potential compensation to people injured by others' negligence."
To show the Chamber's latest warnings are as baseless as the others, the brief points to the "Covid-19 Complaint Tracker" run by law firm Hunton Andrews Kurth. The brief summarizes the tracker's findings:
The majority of lawsuits brought by consumers seek refunds related to cancellations or postponements; despite the huge number of cancelled events over the past several months, the Tracker shows only 109 cases in this category, as of July 15. Other consumer cases arise from price gouging (20 cases), recurring membership fees (28 cases), or deceptive advertising (6 cases).
Only 11 cases involve claims of personal injury, and only 35 involve claims of wrongful death. Only 6 are medical malpractice claims. These data show one thing clearly: There is no flood; there is a trickle.
"The Chamber should be working with its members to ensure that workplaces are safe for workers, consumers, and patients," the brief states. "Immunity from liability will not restore our country from this time of hardship. Public health, not corporate profit, should be everyone's priority."
Dozens of labor unions, consumer advocacy groups, and small business leaders in recent months have urged Congress not to grant corporations immunity from coronavirus-related lawsuits, warning that such protections would give companies the greenlight to flout Covid-19 safety standards and expose workers, customers, and patients to the virus.
But McConnell has shown no indication of backing away from his demand for corporate liability relief, which in April he described as his "red line" for stimulus negotiations.
"McConnell is trying to spare companies the expense, not from losing cases because they won't, not from litigating a lot of cases because they don’t exist, but from having to litigate anything."
—David Dayen, The American Prospect
During a press conference with Kentucky reporters Monday, McConnell said the next Covid-19 relief bill "must have, must, no bill will pass the Senate without, liability protection for everyone related to the coronavirus."
"Nobody should have to face an epidemic of lawsuits on the heels of the pandemic that we already have related to the coronavirus," McConnell added.
Last week, House Speaker Nancy Pelosi signaled opposition to corporate liability protections, arguing instead that the Occupational Safety and Health Administration (OSHA) should mandate stricter workplace standards.
"Let's hear what everybody has to say," Pelosi told reporters. "But don't say, 'You all have to go back to work even if it isn't safe. And by the way, we are removing all responsibility from the employer.' I mean, that is just—no."
David Dayen, executive editor of The American Prospect, wrote Thursday that "combined with the lack of an emergency workplace standard from OSHA," corporate liability protections "would be a license to turn storefronts and factories and offices into death traps, with no attention paid to the measures necessary to keep people safe."
"It's important to say this clearly and out loud: there is no crisis of Covid-19 litigation. It's made-up, it doesn't exist, it's a ploy to get businesses out of paying for compliance. That's entirely it," Dayen wrote. "McConnell is trying to spare companies the expense, not from losing cases because they won't, not from litigating a lot of cases because they don’t exist, but from having to litigate anything."