By Y. Peter Kang

Law360 (April 23, 2021, 9:11 PM EDT) -- A jurisdictional issue to be decided by the Eighth Circuit in a suit alleging Tyson Foods Inc. mishandled a COVID-19 outbreak at an Iowa plant could set a legal precedent that would streamline injury litigation over coronavirus exposures and deaths, attorneys say.

In the closely watched case, the Eighth Circuit said Tuesday that it will hear oral arguments before deciding whether a federal or state court will adjudicate a suit accusing the meat processing giant of repeatedly lying to its Waterloo, Iowa, plant employees and knowingly risking their health during the early stages of the pandemic, resulting in more than 1,000 worker infections and at least five deaths.

Twin suits filed by Hus Buljic and other relatives of four deceased workers were lodged in Iowa state court, but Tyson later removed them to federal court. The Iowa federal judge then ordered that the cases be remanded back to state court, leading to the company's appeal.

At issue is whether the company can invoke the Federal Officer Removal Statute, which allows certain cases to be removed from state to federal court if a federal officer or agency, or an entity working under a federal officer, is involved. Tyson claims that because it was acting in accordance with then-President Donald Trump's April 2020 executive order under the federal Defense Production Act, which declared meatpacking plants critical infrastructure amid the pandemic, it was effectively made a federal officer.

But the notion that Tyson is somehow shielded by federal laws is meritless and "a desperate attempt by the meatpacking companies to gain a tactical advantage in what they see as a more friendly forum," according to Jeff Goodman of Saltz Mongeluzzi & Bendesky PC, an attorney who is pursuing similar claims on behalf of Tyson workers in Pennsylvania.

"Across the country, defendants in the meatpacking industry are removing these cases to federal court because they believe they have a greater likelihood of dismissal or will have a more favorable jury panel," he told Law360. "We're seeing pretty widescale desperation by meatpacking companies to get themselves out of state court in these cases. One thing that is particularly outrageous is that in some of these cases they are trying to invoke orders that didn't exist at the time of a worker's death."

Goodman said that even if a company is unsuccessful in keeping the case in federal court, it still benefits from having stalled the litigation.

"It is a typical tactic that defendants have been employing more and more during COVID as the courts face operational challenges," he said. "It's an unfortunate tactic, but it's one that we see every day from defendants and their insurance carriers."

But if the Eighth Circuit affirms the lower court's ruling, it would effectively invalidate the federal officer argument raised by Tyson, according to Randy Chen, a staff attorney with Public Justice, a legal advocacy nonprofit that submitted an amicus brief in support of the workers.

"If the door is shut on this type of argument, that would be significant," he said. "A decision that firmly closes the door on this argument would allow future cases to proceed more efficiently and without this kind of delay."

Adam Pulver, an attorney with consumer rights advocacy group Public Citizen who is representing the workers before the Eighth Circuit on a pro bono basis, said a favorable ruling would indeed encourage companies to keep litigation in state court.

Tyson is delaying the litigation and raising the legal costs for all parties, he said, including low-income families who have recently lost a family member.

"In a lot of these cases, it's not uncommon for corporate defendants to drag things out like this because it'll wear out plaintiffs and family members, whereas Tyson could litigate for years and it's no skin off Tyson's back," Pulver said.

A spokesman for Tyson declined to comment on the case or the assertion that the company was stalling by removing the case to federal court.

In addition to advocacy groups, the case has also drawn the attention of more than a dozen state attorneys general and the federal government.

Top lawyers for 18 states and the District of Columbia recently submitted an amicus brief in support of the workers, telling the Eighth Circuit that allowing the case to proceed in federal court would undermine states' ability to enforce their own laws and allow nearly any company to pull state law claims against it into federal court by arguing that it was working under federal guidance.

In its own amicus brief, the federal government said the case belongs in state court because Tyson had not been acting under its direction and was simply conducting business as usual.

"Tyson was not performing a federal function during the relevant period," the government said in its brief. "The allegations in this case concern Tyson's performance of its ordinary business functions — processing and delivering meat under preexisting private contracts. Although the pandemic brought the importance of these functions into the public consciousness, federal officials' acknowledgment of their importance and support for their continuance did not serve to federalize these fundamentally private actions."

The fact that a number of states and the federal government have stepped in to shoot down Tyson's federal officer argument is significant and bodes well for an Eighth Circuit affirmation, according to Pulver.

"I believe our argument is quite strong, and it is highly relevant that the federal government came in and explained that Tyson wasn't working under them," he said.

The workers' families are represented by Thomas P. Frerichs of Frerichs Law Office PC, Adam R. Pulver and Scott L. Nelson of Public Citizen, John J. Rausch of Rausch Law Firm PLLC and Mel C. Orchard III, G. Bryan Ulmer III and Gabriel Phillips of The Spence Law Firm LLC.

Tyson is represented by Paul D. Clement, Erin E. Murphy and C. Harker Rhodes IV of Kirkland & Ellis LLP.

The cases are Hus Buljic et al. v. Tyson Foods Inc. et al., case number 21-1010, and Oscar Fernandez v. Tyson Foods Inc. et al., case number 21-1012, in the U.S. Court of Appeals for the Eighth Circuit.

--Editing by Breda Lund and Daniel King.

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