It is, perhaps, one of the most uniquely American solutions to nearly every imaginable problem: the modern lawsuit. But it won’t cure the pandemic.
Chimène Keitner, Alfred & Hanna Fromm Professor of International Law at UC Hastings Law, has been fielding media calls from around the globe as individuals and governments, including the State of Missouri, file suit against China, seeking damages from the novel coronavirus that causes COVID-19.
But as Keitner wrote in an article, “Don’t Bother Suing China for Coronavirus,” it’s a losing battle, both on grounds of sovereign immunity and likely other bases. As a leading authority on international law and civil litigation, Keitner is fielding questions from journalists in multiple countries, explaining the concept of foreign sovereign immunity as the lawsuits pile up.
“It seems clear that Chinese authorities failed to adequately report and to contain the spread of this new disease, and that the U.S. Executive Branch botched its response, with highly predictable and deadly results,” Keitner wrote. “Private actors may also bear legal responsibility for exacerbating the harms caused by unsafe working conditions, equipment shortages, termination of employment and other contracts, and other problems, which will, in turn, lead to litigation with insurers and reinsurers for the foreseeable future.”
“In addition to protecting their own families and communities, lawyers are understandably thinking about how best to protect, and to seek redress for, their clients. Unfortunately, some attorneys appear to have chosen the one path that is virtually guaranteed not to provide any meaningful recovery: suing China.”
Those claims stand virtually no chance of moving forward, Keitner says. Some, like the suit the State of Missouri filed against China by Missouri Attorney General Eric Schmitt, a Republican, have been dismissed by Democrats as a “political stunt.” Keitner hasn’t gone that far, but she has made clear in a follow-up piece that Missouri’s suit doesn’t abrogate China’s sovereign immunity, and that “lawsuits against China in U.S. courts should not detract from the continued responsibility of U.S. federal and state governments to prevent the further spread of the virus.”
In addition to the suit by Missouri (and one reportedly planned by Mississippi), other suits have been filed by private attorneys and are proposed class actions on behalf of “all persons and legal entities in the United States who have suffered injury, damage, and loss related to the outbreak of the COVID-19 virus” and those whose businesses suffered losses.
Separately, several New York state residents have filed a proposed class action against the World Health Organization (WHO), claiming the agency failed to respond quickly enough to the coronavirus pandemic. That suit will also fail, Keitner said, as the WHO has “functional immunity.”
“In the rush to be the first to file, the attorneys who drafted these [class action] complaints seem to have fundamentally misunderstood the Foreign Sovereign Immunities Act of 1976, which governs these actions,” Keitner writes. “Most fundamentally, the FSIA provides that foreign states enjoy immunity from the civil jurisdiction of U.S. courts, subject to certain enumerated exceptions.” In her blog posts, she explains why none of the exceptions apply to these suits.
As for proposals to amend the FSIA to allow these suits, Keitner writes: “Congress cannot create an exception to foreign sovereign immunity every time the United States is adversely affected—even catastrophically—by another country’s actions. Not only would this likely violate international law, but it would virtually guarantee reciprocal lawsuits in other countries’ courts. Instead of crafting legislation that will ultimately harm U.S. interests, Congress should prioritize finding out what the U.S. government knew or should have known about the virus, and why it failed to act sooner.”
That said, she emphasizes that “It is entirely appropriate–indeed, essential–for the international community to find out what caused the outbreak of this virus and where China’s response fell short, and to take effective measures to prevent a similar outbreak from happening again.” But that is not a task for U.S. courts.
For more information on the details of the suits, and why Keitner predicts they will fail, see “Don’t Bother Suing China for Coronavirus,” published March 31, 2020 and updated April 8, 2020, and “Missouri’s Lawsuit Doesn’t Abrogate Chinese Immunity,” published April 22, 2020, both in Just Security, based at the Reiss Center on Law and Security at New York University School of Law.