The COVID-19 pandemic is virtually certain to produce a wave of litigation against the People’s Republic of China, the Communist Party of China, and any number of political subdivisions and officials unlike anything China has previously experienced. Seven class actions have been filed in the United States so far, and there will be more, all seeking enormous damages. One state government has also filed suit, and many more are likely to follow. Similar litigation is also probable in at least some other countries. While the situation is largely unprecedented, experience teaches that the entities targeted in those cases should prepare to actively respond.
Under current law, the risks posed by U.S. litigation against China’s government agencies and officials are, however, limited and manageable. Foreign governments and their subdivisions, agencies, or instrumentalities are protected from claims in the U.S. by the Foreign Sovereign Immunities Act (“FSIA”), while individual officers acting in their official capacities are shielded from litigation by the common law principles of sovereign immunity.
The special service procedures required by the FSIA presents an initial hurdle for U.S. claimants that will keep these actions from even beginning for months. It is likely that plaintiffs will ultimately need to invoke the assistance of the Department of State to effect service through diplomatic processes after exhausting other statutory processes. It is not unusual for service issues in such cases to take well over a year to resolve.
More importantly, the complaints do not appear to state claims that are within the exceptions to immunity, as they are currently construed by the U.S. courts. The complaints so far have typically alleged that China’s government censored doctors from speaking about COVID-19 in the early stages and otherwise misled and failed to warn the world community about the disease. They also to varying degrees claim that a government lab may have been involved in the initial outbreak. The plaintiffs’ claims have generally been framed in terms of tortious negligence, recklessness, or strict liability. One complaint claims a violation of the Anti-Terrorism Act and invokes a terrorism exception to sovereign immunity, but does not plausibly explain how any of the defendants committed an act of terrorism. Though the FSIA permits non-commercial tort claims, the most commonly applied exception for such claims limits them, under the “entire tort” rule, to conduct that occurs entirely within the U.S. Claims based in part on the defendants’ alleged conduct in China do not fall within the exception. The FSIA also bars tort claims against conduct that involves a “discretionary function or duty,” a concept that has been broadly construed to include all conduct that involves an element of judgment or policy and does not involve violation of a law or regulation.
There is certainly, however, enough complexity in FSIA case law to create significant risk that a creative judge will find a way around conventional constructions of the FSIA to enable these claims to be pursued. As mentioned, one of the complaints invokes a terrorism exception to the FSIA, and the plaintiffs will likely seek other creative ways around limitations on sovereign immunity. The risk of an outlier construction of the FSIA will multiply with the proliferation of lawsuits. China can, however, limit this risk by seeking to consolidate these actions through the multi-district process into the court of a single federal judge, which will apply the law of a single federal appellate court.
The greater risk for Chinese defendants to these claims may lie in the reaction of Congress. Some members of Congress have already stated their support for legislation to redefine the protection of sovereign immunity to assure that these lawsuits can go forward.
This law was passed despite the longstanding alliance between the U.S. and Saudi Arabia, the opposition of the Obama Administration, and the absence of any evidence supporting the claims against Saudi Arabia. The Obama Administration opposed the law on grounds that it would encourage other countries to make exceptions to sovereign immunity, which could cause endless problems for the U.S. because of its extensive international presence. But in the months leading up to the 2016 elections, no one in Congress wanted to cast a vote for Saudi Arabia and against the 9-11 victims. JASTA was, accordingly, passed by voice vote in the Senate and unanimously by the House of Representatives. The bill was promptly vetoed by President Obama, but that veto was overridden by a large margin in the House and a 97-1 vote in the Senate. It was the only veto overridden during President Obama’s eight years in office.
The last time the United States suffered mass injury alleged to be linked to a foreign government, the Congress in fact did just that. After the attack of September 11, 2001, prominent plaintiffs’ lawyers brought multiple actions in several jurisdictions on behalf of victims of the 9-11 attacks. These actions alleged that the government of Saudi Arabia, entities owned by the government, and members of the Royal family who had held high government office, along with a large number of private Saudi companies, banks and individuals, should all be found liable for indirectly supporting al Qaeda primarily through their support for a number of Islamic charities.
Saudi government and government-owned entities were twice dismissed by the trial court on grounds that the claims against them were barred by sovereign immunity, but they were still litigating the issue in the Court of Appeals for the third time 14 years after the suit began, when Congress stepped in. Speculation concerning the possible role of Saudi Arabia in supporting the 9-11 terrorists had remained popular in the media throughout that time. As a result, plaintiffs and their attorneys were able to persuade Congress to pass legislation in 2016, the Justice Against Sponsors of Terrorism Act (“JASTA”), which amended the FSIA to permit actions against foreign governments for damages caused by acts of international terrorism. This cut short the appeal from the Saudi government’s latest dismissal and allowed the firms representing the 9-11 victims to continue their lawsuits against it, which are still ongoing today.
China’s responsibility for the spread of COVID-19 has likewise become a matter of intense political and media interest in the U.S. China’s theory that the infection first arose from consumption of animals at the Huanan Seafood Market was broadly accepted in the U.S. during the early weeks of the pandemic. But a growing body of commentary citing U.S. government sources has promoted the view that the virus escaped from either the Wuhan Institute of Virology or the Wuhan Center for Disease Control, both of which are labs reportedly engaged in research of coronaviruses found in bats. Published research from the Wuhan Institute of Virology has also given rise to the theory that the pandemic virus was actually engineered to enable it to infect human cells in experiments conducted in that lab. Those allegations are strenuously contested by Chinese authorities and various supporting experts. But while few doubt that the emergence of the virus was accidental, China is increasingly blamed for inadequate care in the management of these laboratories.
Even greater attention has been focused on the intentional actions taken by China’s governmental authorities to control information about COVID-19 provided to other countries and the World Health Organization. U.S. media claim that China, through a number of government agencies, suppressed and misrepresented facts relating to COVID-19. Many have argued that this substantially delayed actions that could have been taken in countries throughout the world to prevent or contain the spread of the virus. In response to these reports, two bills have been introduced in Congress, patterned on the model of JASTA, that would permit imposition of sanctions on Chinese government officials who concealed or distorted information relating to the COVID-19 crisis.
The response of the U.S. government to the pandemic may become the central concern of the 2020 elections. Though the political parties will have opposing views on President Trump’s performance, neither party will likely be inclined to dispute the culpability of China’s government. Just as Congress enacted JASTA with overwhelming support on the eve of a presidential election, in this political atmosphere, it will be difficult for Congress to vote against legislation, already proposed by some Republican senators, that assures a private right of action for victims of COVID-19 by stripping China of its sovereign immunity defense.
It can, of course, be persuasively argued that this is a very bad idea, since private lawsuits are not well-suited for dealing with a problem that is so broadly damaging and close to interests of state. Stripping sovereign immunity from tort claims in this context is also, of course, a far greater departure from international norms than the more limited exception for terrorism claims adopted in JASTA. Though President Trump’s Administration may be less concerned with these principles of international law, it certainly would not want to cede control of the U.S. response to China to courts and litigants. The proposed legislation gaining the most attention, introduced by Senator Cotton of Arkansas, permits the Attorney General to intervene to stay any action and allows the State Department to negotiate a resolution of the action with the foreign government that can end the case, regardless of whether the plaintiffs agree. While this novel structure, borrowed from JASTA, might answer Executive Branch concerns, its invocation might also present due process and separation of powers issues requiring years of litigation.
Plaintiffs’ counsel will not, however, wait for Congress to act. Complaints will continue to be filed, claiming exceptions to the existing FSIA, that China will need to defend. Although it may be necessary for China to communicate via diplomatic and political channels on these litigations, ignoring the courts and letting these actions proceed without China’s participation may result in default judgments. The preparation of a strong defense to these claims, well grounded in law and factual evidence, should be a strategic option for China.