On The Case

It’s time for employee and consumer advocates to speak up for COVID-19 accountability

(Reuters) - COVID-19 has proved, once again, that the U.S. business lobby knows how to seize control of a debate before the other side has even cleared its throat.

By now, you’ve surely heard that groups like the U.S. Chamber of Commerce, the National Association of Manufacturers, and the National Federation of Independent Business are urging like-minded members of Congress to immunize businesses from liability as they re-open after COVID-19 shutdowns. Maybe you read a Reuters story last week, quoting a congressman who predicted near-unanimous Republican support for barring lawsuits over COVID-19 reopenings. Maybe you saw a Wall Street Journal op-ed by the CEO of Chubb, who argued that litigation over liability for the virus would cripple this country’s prospects for an “orderly recovery” from the pandemic.

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The business lobby’s message is simple - in an economic crisis, we can’t weigh down struggling businesses with opportunistic lawsuits - and it’s resonating at the highest levels of government. Senate Majority Leader Mitch McConnell, the Kentucky Republican, said Monday that unless Congress restricts liability suits, COVID-19 could “set up the biggest trial lawyer bonanza in history.” The president’s economic advisor, Larry Kudlow, warned last Wednesday that businesses need protection from “trial lawyers putting on false lawsuits.” President Trump himself told a reporter last week that his administration was “trying to take liability away.”

What you haven’t heard, so far, is a forceful, coordinated response from the other side. Employee, consumer and environmental advocates regard litigation as an indispensable tool of accountability – and never more so than now, when people’s lives are actually at stake if businesses re-open without regard for safety. But workers’ and consumer rights groups have been focused on bringing particular cases - like the workers’ safety suit Public Justice and Towards Justice filed Friday against the meat and poultry processor Smithfield Foods – rather than on lobbying.

“We’ve been working like crazy on helping actual clients instead of messaging,” said Public Justice’s Paul Bland.

That’s about to change. Public Citizen and the Center for Justice and Democracy began circulating a letter among progressive groups on Thursday, asking them to join together to oppose legislation immunizing businesses from liability even if they operate in an unsafe matter. Remington Gregg of Public Citizen told me that more than 50 labor, consumer and environmental groups have already agreed to sign the letter, which is addressed to leaders of the House and Senate. He’s hoping to obtain signatures from another 20 before submitting the letter to Congress, possibly as soon as tomorrow.

It has not been easy, he said, to unite groups with diverse missions behind a streamlined message. But as the business lobby’s anti-litigation campaign draws attention, it’s become critical to assure that Congress hears why the economy can’t restart if workers and consumers don’t feel safe – and why the threat of lawsuits is a critical way to assure that businesses protect their employees and customers. “This is not a time to take away accountability,” Gregg said.

“It’s the only thing that keeps them honest,” added Rachel Deutsch of the Center for Popular Democracy.

Until the new letter began circulating, progressive advocacy groups had been relying mostly on stories of unsafe business operations to make the case against restricting liability litigation. First-person op-eds by employees, like those of the Jane Doe suing Smithfield Foods or the Dollar General cashier who said she doesn’t have adequate protective gear, tell a more powerful story than sloganeering by trial lawyers, especially after decades of business-lobby demonization of plaintiffs’ lawyers. You’ll find few groups publicly cheering for liability litigation.

And many advocates, said David Seligman of Towards Justice, have been preoccupied with specific cases arising from the virus. “I haven’t had the bandwidth to respond to hyperbole from the Chamber of Commerce,” he told me. “It’s not where my head has been.”

But as Congress begins sketching out the next bill responding to COVID-19, advocacy groups have finally realized that they must persuade lawmakers and their constituents that restricting liability will delay economic recovery, not hasten it. Public Citizen’s Gregg and other progressive advocates said they now understand that they have to explain why workers and consumers must retain the power to hold businesses accountable for their safety through litigation. “I’m not sure people have made that connection,” said Deutsch of the Center for Popular Democracy. “We have to step up.”

“We have a good story to tell,” added Bland of Public Justice. “We have to get out there and tell it.”