Brace for the Storm: The Tsunami of Pandemic Related Litigation

• Author: by Daniel S. Wittenberg
• Pages: 26-27

he COVID-19 pandem ic is expected to lead to

more litigation than a ny other incident in U.S.

history. The coronavir us has in many ways forever

changed our lives. A nd, while the pandemic is stil l

unfolding, t he wave of lawsuits is unprecedente d.

By late November 2020, over 6,30 0 pandemic-related com-

plaints had been  led. As of October 2020, over 1,200

COVID-r elated lawsuits had bee n led against i nsurers

alone. It has been a tu multuous year, and the effect of the

coronavirus on busi ness operations, con sumer activit y, eco-

nomic forecasts, a nd everyday life makes clear that the  l-

ings to date are a precu rsor of what is to come.

Warning Signs

Putting the nu mber of COVID lings to date into p erspec-

tive, a typica l large hurricane will resu lt in roughly 100 or less

business interr uption cases being led withi n the rst year.

Hurricane Sa ndy resulted in around 150 business inter ruption

cases withi n the rst year. The Y2K bug produced no more

than a few hundred l awsuits. Deepwater Horizon spurred

no more than 1,00 0 individual lawsuits. But to be sure, a

crisis of the magn itude of the coronavirus pandemic is h aving

a global impact .

The 2008 n ancial crisis started i n U.S. subprime mort-

gages and ultim ately brought numerous economies to their

knees. The long- term consequences of the pandemic w ill vary

from location to location ba sed in part on the vigilan ce with

which social di stancing and other public health i nterventions

are implemented and adh ered to. After the 1918 u pandemic,

U.S. cities t hat instituted social dist ancing just 10 days earlier

than other comparable c ities ended up doing materially bett er

economically ve yea rs later. If the same holds true, there m ay

be materially di fferent outcomes between region s, which may

drive differenc es in litigation patterns.

Moreover, crisis-related lit igation will likely come in

waves. In the afte rmath of the 2008 nancial c risis, institu-

tions sufferi ng the largest losses faced the r st wave of law-

suits. Therea fter followed governmental investigations a nd

then private litigation relate d to the mortgage market. There

will likely be si milar waves of litigation stemming f rom

COVID. Whi le we are beginning to see tre nds in the types of

claims and lawsu its being led, the full sc ope of the pandem-

ic’s legal consequences may ta ke time to emerge.

Categories of Impending Litigation Waves

COVID-19 litig ation spans a multitude of prac tice areas and

industries. A lthough no industry is completely immu ne to

litigation related to COVI D-19, certain business sectors —

such as travel and enterta inment, manufacturi ng, retail, and

healthcare—have seen heightened litigation activity because

Brace for the Storm: The Tsunami of

Pandemic-Related Litigation

By Daniel S. Witte nberg, Litigation News Associate Editor

© Getty Image s

26 | SECTION OF LITIGATIO N

Published in Litigation News Volume 46, Number 2, Wint er 2021. © 2021 by the Americ an Bar Association. Re produced with per mission. All rights res erved. This infor mation or any portio n thereof may not be c opied or disseminated in any

form or by any means or sto red in an electronic da tabase or retrieval sy stem without the ex press writt en consent of the Amer ican Bar Associatio n.

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