COVID-19's Shadow Spreads Across Federal Court Filings

By Natalie Rodriguez
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Law360 (May 12, 2020, 6:11 PM EDT) -- Federal courts are seeing an explosion of complaints referencing the COVID-19 pandemic, and the surge is spreading to a host of practice areas, according to recently released Lex Machina data.

Looking at U.S. federal district court complaints filed between March 1 and May 2 that referenced keyword terms tied to the coronavirus pandemic, Lex Machina found there was a 110% spike around mid-April, according to a report released on Monday.

The pandemic has also been referenced in filings that touch on 14 of the 16 practice areas that Lex Machina tracks, and most filings cite the coronavirus pandemic as a major factor behind the filing as opposed to just mentioning the current state of affairs, according to the data.

"We found that a total of 287 cases cited COVID-19 as a reason for filing and 108 merely mentioned a COVID-19 keyword as a preface or procedural recitation," Lex Machina said in a blog post about its findings.

When analyzing complaints that specifically cited COVID-19 as a reason for filing, Lex Machina found the bulk touched on contract issues.

"New contracts cases due to COVID-19 show two predominant patterns: cases filed as class actions, and cases seeking refunds for services not provided as a result of the COVID-19 pandemic," Lex Machina's blog post said.

Some of the targets for such filings are airlines, universities, gyms and ticket sellers, according to the report.

The pandemic, however, has affected a broad swath of social and economic sectors, which is reflected in how the case filings also touch on a number of other areas. Insurance, employment, securities and trademark rounded out the top five practice areas that saw COVID-19 mentions, but Lex Machina noted that 11 of the practice areas it tracks had at least a few recent filings where the pandemic was cited as a major factor.

Two areas that did not see COVID-19 activity were medical malpractice torts and environmental, but Lex Machina noted that it may just be a matter of time. With medical malpractice torts, Lex Machina said it expects to see claims increase alongside the expansion of civilian testing and treatment over the weeks and months to come.

Also, "in the long term, it is possible that we will see cases alleging violations of federal environmental statutes for COVID-19-related injuries when more scientific data is available to establish environmental risks, such as poor air quality, as a contributing factor to the severity of the COVID-19 virus," Lex Machina's blog post said.

Meanwhile, Lex Machina said it expects to see more COVID-19 complaints in certain practice areas.

For example, Lex Machina noted that it expects to see a significant increase in coronavirus-related employment cases covering a range of issues, from failure to pay minimum wage or overtime to new litigation under statutes like the Families First Coronavirus Act and Emergency Family Medical Leave Act that allow claims depending on how the employer handles a request under a leave provision.

Also, Lex Machina said it expects to see an increase in retaliation and whistleblower cases involving health care professionals. "Specifically, we expect more cases wherein employees' concerns regarding lack of protective gear cause them to face discipline, or when employees contract COVID-19 and are directed to continue working despite their condition," Lex Machina said.

Another area Lex Machina is watching is trade secrets complaints related to the pandemic.

"As more employment relationships terminate due to the effects of COVID-19, it's possible that we will see more trade secret misappropriation claims in the future," Lex Machina said.

--Editing by Alanna Weissman.

Law360 is owned by LexisNexis Legal & Professional, a RELX Group company, which owns Lex Machina.

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