By Alison Wong and Jocelyn Cinquino

Law360 (May 4, 2020, 4:25 PM EDT) --

Alison Wong

Jocelyn Cinquino

In a Law360 guest article published in late March, we wrote about the looming changes in store for millions of Americans as a result of the COVID-19 outbreak. It was apparent then that this pandemic would leave very few Americans unscathed, whether from changes to their physical health, emotional well-being or financial security.

The reality, which has seen daily increases in both the U.S. death toll and the ranks of the unemployed, has been sobering. We wondered how this shared experience would impact jurors' worldview, and how that impact would affect jury trials (particularly for corporate defendants) once we emerge from this crisis.

In April, we went in search of answers to some of our questions by surveying a representative sample of jury-eligible participants in two federal venues: the U.S. District Court for the District of Delaware and the U.S. District Court for the Eastern District of Texas.

We administered online questionnaires to 200 respondents, inquiring about their personal experiences with and views on the COVID-19 outbreak, as well as their opinions on how various entities have responded to the crisis. All respondents were recruited and screened by a national recruiting agency to match the demographic frequency of each federal venue, including county of residence, gender, age, race, education, marital status, employment status and income.

Personal Impact on Respondents

As a threshold matter, we found that the vast majority of jurors (79%) have been personally affected in some way by the COVID-19 outbreak. Of these, most (52%) have been affected financially (18% have lost their jobs directly as a result of the pandemic), rather than physically (10%). A significant percentage (38%) report having been personally affected by the pandemic in other ways.

Whether or not they have yet to experience the effects of the pandemic personally, most respondents recognize the threat that it poses to themselves and to society. Specifically, the majority of respondents believe that the COVID-19 outbreak is a "major threat" not only to the health and well-being of all Americans (77%), but also to the entire U.S. economy (92%).

It is perhaps not surprising that respondents identify the economic impact of the outbreak as the bigger threat, given the danger that it poses directly to them and their families. When asked what would happen if they were unable to work for two weeks because of the COVID-19 outbreak, only a quarter of respondents are confident they would continue to be paid, while most believe they would not get paid and that it would be difficult to keep up with their living expenses.

Respondents' Views on Corporations

Undoubtedly, people's lives are being upended during this time, but what about their views of corporations? Of society? Are they evolving as well? Most of our respondents (57%) report that, since the COVID-19 outbreak, their opinions toward large corporations have stayed the same. In the venues we polled, those opinions were primarily neutral in the months prior to the COVID-19 outbreak.

People are paying attention to corporate conduct, however, and some acknowledge a shift in their impressions, for better or worse. A quarter of our respondents (25%) report that their opinions of large corporations have become more negative, while 18% report that their opinions have become more positive.

Overall, a plurality of jurors (48%) say that most large corporations are doing a "good" or "fair" job in handling the COVID-19 outbreak. Of the remaining jurors, twice as many are willing to say that most large corporations are doing a "poor job" (14%) than an "excellent job" (7%).

We asked who among those corporations is doing a particularly good or bad job and why. Across the board, regardless of venue or demographics, respondents offer clear, consistent reasons for giving both high marks and low marks.

Praise for Corporations

Companies cited as doing a good job include grocery stores, online retailers, big-box stores, home improvement stores, hospitals, manufacturers and insurance companies.

Brick-and-mortar retail and grocery stores are uniformly praised for adhering to social distancing measures, including improved sanitation, providing hand sanitizer, requiring the use of masks and gloves, and enforcing occupancy limits. They are also acknowledged for maintaining or raising their level of customer service, e.g., by offering curbside or delivery service and by keeping the shelves stocked.

Manufacturers are praised for continuing to churn out essential protective equipment or for adapting their production lines to make personal protective equipment, ventilators or other necessary supplies. Banks, insurance companies and utility companies (including cell phone companies) are commended for working with customers on flexible payment plans, waiving late fees, reducing premiums, and pledging not to terminate service.

Various other companies are applauded for keeping employees on the payroll, extending paid sick leave, allowing employees to work from home, making monetary donations to those fighting the disease, and innovations related to the fight against COVID-19 (e.g., creating tracking tools, databases, etc.).

For example, respondents praised companies that are:

• "[K]eeping as many of their employees on the payroll as possible, and ... helping the general public who need food/supplies."
  
  
• Making "[e]fforts to remain stocked and provide safety measures for employees and customers."
  
  
• "[Ensuring] social distancing and cleanliness and offering additional benefits for employees like extra PTO and sick days."
  
  

According to one respondent, "Amazon has raised wages and hired many additional workers. Dyson Ltd. and Tesla are contributing to production of medical equipment needed. Target has paid some workers while they're sick with corona. ... [A]ny which are hiring a large number of employees, making sure employees are still paid, willingly/at the request of the government are doing a great job in my mind."

Criticism for Corporations

On the other end of the spectrum, respondents took issue with the conduct of a handful of companies, including online retailers and big-box stores, Hobby Lobby Stores Inc., Smithfield Foods Inc. and World Wrestling Entertainment Inc. Three clear reasons emerged for the low marks received by these companies: (1) bad or declining customer service, (2) putting profits over work safety, and (3) corporate greed.

Respondents are critical of companies failing to "meet them halfway" on payment terms and deadlines and for exhibiting an apparent disregard for customer safety by ignoring social distancing guidelines in stores. Respondents are further troubled by how these corporations are treating their employees, by failing to provide workers with necessary protective equipment, failing to enforce social distancing in the workplace, and by rushing to reopen too soon.

While all of these failures reflect the perceived greed of large corporations, nothing epitomizes this greed more than when a large corporation accepts federal Paycheck Protection Program funds that are intended to keep small businesses afloat.

For example, respondents criticized companies for:

• Not "making it mandatory to wear masks and gloves across all of the stores and aren't properly limiting how many people can enter the store."
  
  
• Being "worried about their million-dollar bonuses instead of doing what's right ... close the doors."
  
  
• "[T]aking in millions but [not giving] warehouse workers protection or paid sick leave."
  

One respondent opined: "The stimulus money was intended to help out the "little guy" not prop up large businesses like Ruth's Chris. As for Amazon, I think that's evident: they're treating their workers like cattle."

It is worth noting that two companies — Amazon and Walmart — figure prominently on both the "best" and "worst" lists. Both companies receive high marks for their customer service, but also receive failing grades for not doing enough to protect the health and safety of their workers. Thus, even as respondents appreciate the services these companies provide, they keep a watchful eye on how the services are being provided.

Clearly, jurors are taking notice of the moves being made by large corporations, and many do not like what they see. Already there are high-profile examples of large organizations being shamed into giving back their PPP loans (Ruth's Chris Steak House, Shake Shack, Harvard University, etc.), and stories about companies like United Airlines Inc., which recently accepted billions of dollars in federal aid and then promptly announced impending large-scale layoffs.

Not surprisingly, very few respondents (9%) are strongly in favor of the federal government giving financial assistance to large corporations at all, and most (57%) believe the amount of federal financial assistance going to corporations is "too much." By contrast, most (63%) feel that the amount of federal financial assistance going to regular citizens is not enough. This discrepancy exacerbates the existing "us vs. them" dynamic at play between corporations and individuals.

The divide between "us" vs. "them" is even more stark for Chinese companies. Most respondents (72%) agree that China is most to blame for the COVID-19 outbreak in the U.S., and many acknowledge having more negative feelings toward not only the Chinese government, but also Chinese people.

Looking Ahead

People in all segments of our society are struggling and will be for the foreseeable future. The strong likelihood is that the wounds being inflicted now on our prospective jurors will not be healed by the time the courts reopen. Many will still be dealing with the aftereffects of health challenges, job losses and other forms of instability. It is against this backdrop that corporate defendants will go to trial when the courts eventually reopen.

We said before that this shared experience presents both risk and opportunity for corporate defendants. The actions and decisions being undertaken by corporations in response to this crisis are already shaping how jurors view these companies, for better or worse. Our polling suggests that companies can effectively demonstrate their corporate ethos and protect their hard-earned reputations by making a meaningful contribution to COVID-19 relief efforts.

In the venues we surveyed, jurors use the following rubric in evaluating whether a corporation's conduct was "good" or "bad":

1. What is the company doing to help me (level of service/safety precautions)?
   
   
2. What is the company doing to help its employees (payroll/sick leave/safety precautions)?
   
   
3. What is the company doing to help the greater good (donations/ innovations)?

In assessing the conduct of large corporations, the respondents to our survey make one thing very clear: any contributions made by these companies must be meaningful in order to receive full credit. Lip service won't cut it. Nobody wants to hear from a clothing company that "we're all in it together" without also hearing what that company is doing to pitch in and pull its weight. People need to see evidence of assistance now, not intangible promises for later.

One respondent in Texas chastises a car dealership for "offering buying incentives instead of legitimate assistance," and many take companies to task for trying to reopen too soon. In fact, 75% of all respondents say, "we should wait to open the economy and lift social distancing restrictions — it is better to be safe than sorry."

It is also important to note that, when companies communicate with their stakeholders, the same message will not work for all listeners.

Our survey reveals deep schisms between how white and nonwhite respondents view certain aspects of this pandemic and the American response to it. For example, though 64% of Caucasian respondents believe that, after the crisis passes, we will be more united, the majority of Hispanic (66%), African American (72%), and Asian American (80%) respondents feel we will be more divided.

Similarly, while a slight majority of all respondents (60%) feel that, during the COVID-19 outbreak, most people are trying their best to help others (rather than just looking out for themselves), most Asian American respondents (75%) and biracial respondents (75%) polled report the exact opposite sentiment.  

Optimism among certain segments of the population may serve us well as we move forward amid continued social restrictions, employment changes, and sweeping lifestyle disruptions – all without a realistic end-date in sight. However, this outlook may also reflect heightened expectations — for citizens to treat each other well, for employers to treat their employees well, and for companies to treat everyone well.

Corporations have the opportunity to recognize these expectations and to respond with action. People don't need the sales pitch; they need to see corporations partner with them to not only survive this pandemic, but end up stronger than we started.

---

Alison Wong and Jocelyn Cinquino are members at Salmons Consulting. 

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

For a reprint of this article, please contact reprints@law360.com.