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Since we last wrote about the coronavirus-related lawsuits brought against China a few months ago, there have been few relevant developments. Compared to the deluge of suits filed by individuals, businesses, putative classes and even states in U.S. federal courts late last spring, the litigation spigot released merely a trickle over the summer and fall: Since May, represented plaintiffs have brought only one new case, Ruocchio v. People’s Republic of China (described here). Nor have there been many developments in the previously filed suits. Most cases seem to be drifting in procedural purgatory; the most exciting thing on the dockets are issues relating to service and some appearances from colorful friends of the court.
One explanation for the lack of new suits is that there won’t be any more suits. But another is that prospective plaintiffs may be waiting in the wings. And there are several good reasons for why would-be plaintiffs would want to wait several months, or even years, before bringing a new coronavirus-related suit against China.
First, it is possible that following the string of summer filings, would-be plaintiffs are waiting to see the results from the first batch of cases. Plaintiffs’ attorneys may want to get a lay of the legal land before crafting their own complaints in order to avoid any pitfalls that might swallow the first-filed cases. A second, related reason may be that plaintiffs are simply following the common litigation strategy of taking all the time permitted by the shortest statute of limitations to gather evidence and prepare a complaint. While the statutes of limitations in these cases vary with the underlying claims, most litigants probably have at least a year or two left before they need to file.
There are also likely political strategy considerations in play. Prospective litigants may be waiting to see whether Congress will permit suits against China to proceed more easily. On July 30, 2020, the Senate Judiciary Committee approved the Civil Justice for Victims of China-Originated Viral Infections Diseases (COVID) Act, which would amend the Foreign Sovereign Immunities Act to permit lawsuits against China for claims related to the coronavirus. Although the bill is unlikely to become law—especially considering the makeup of the newly elected Congress—some potential plaintiffs may be holding out hope.
Finally, prospective litigants may be waiting to decipher the incoming Biden administration’s posture toward suits against China. Several of the already-filed suits rely heavily on the Trump administration’s statements that place blame for the pandemic squarely at China’s feet. The thought process behind this approach makes some sense: One of the strongest public policy rationales for foreign sovereign immunity is to prevent private litigants from using the courts to disrupt diplomatic relations. If there are no diplomatic relations to disrupt, litigants might argue, then courts should be more open to finding exceptions to immunity. On the flip side, if the incoming administration backtracks from the Trump administration’s stance (and its tacit support), then those arguments may seem less viable. Furthermore, even if a change in the executive branch’s policy toward China would not deter eager litigants from suing China entirely, it may alter their litigation strategy and thus be worth waiting for.
Whatever happens, we’ll keep you updated on how the coronavirus-related cases against China continue to unfold.