Trial Lawyers Use COVID-19 to Prey on America’s Corporations | Real Clear Policy | 12.1.20

With the promise of a COVID-19 vaccine on the horizon, the nation is taking a small sigh of relief. Yet, nine months into the pandemic shutdown — with cases spiking again — Americans face a major obstacle to restoring jobs and prosperity: trial lawyers. As the head of a strategic communications firm that has spent decades advising clients on how best to navigate complicated regulatory challenges and trial lawyer assaults, much like the current COVID-related lawsuits today, it’s clear the dynamics are almost always the same. The question is, how should a client respond?

Nearly every major industry is struggling to adjust to the threat of COVID-19 and the economic burdens of the lockdown. Essential workers at large, indoor facilities in food production, manufacturing, retail, and distribution have been particularly hard hit, as they work to meet a challenge that no one anticipated while keeping themselves and their families safe. Yet, it is these large companies — ensuring the rest of us stay afloat with basic food and supplies — that big-dollar trial lawyers have stalked.

Supermarkets like Walmart and Albertsons and food producers like Tyson Foods and Smithfield Foods have all faced lawsuits, despite reports showing that these companies have implemented changes and safety measures that in many cases exceed federal guidelines. Plexiglass barriers, temperature checks, waivers of absence for employees uncomfortable about working, expanded paid leave, free doctor visits — these are just some of the changes that companies have employed to keep their workforce safe. With customary efficiency, Walmart, for example, changed store hours to give crews more time for daily cleanings. Nevertheless, COVID-related suits continue to charge America’s corporations with negligence towards employees.

The good news is that most anti-industry attacks follow a simple rubric. The trial bar seeks out crises — where they can take advantage of a company under duress — and the message is typically about protecting workers. And while the trial lawyers are paid a percent of what they can extract from a target, those workers they claim to represent are often left with only pennies. Deep pocket companies, with an anxious workforce, struggling to keep up with changing regulations during the COVID pandemic — these are the perfect conditions for a class action lawsuit.

The country’s largest pork producer Smithfield Foods — recipient of Military Times newspaper’s “Best for Vets” employer award in both 2019 and 2020 — has shouldered multiple lawsuits since the start of the pandemic. One such trial-lawyer-generated suit, charged that the company did not provide masks for their employees in mid-April. Yet in mid-April, the Centers for Disease Control had just recommended mask use a week earlier. The announcement came after initially insisting that most of us should, in fact, not wear them so they could be saved for first responders. The World Health Organization would not recommend the general use of face masks until early June, and masks were in short supply (if they were available at all) throughout the country. Nevertheless, trial lawyers — with the support of workers unions — have gone after Smithfield in South Dakota and Missouri.

The most important thing for a corporation in this position to keep in mind is that this fight is not a standard corporate communications campaign. It’s not sufficient to issue a press release and then stay in the background. Rather, this is a political campaign in which public opinion is massively impacted by elite discourse – or, what someone hears on the nightly news or reads on the op-ed pages. The challenge is that too often the flow of information becomes lopsided, with the trial lawyers and their allies unanimously charging incompetence, and the corporation staying quiet. But by failing to respond forcefully and consistently, you are certain to lose.

It’s critical that companies — and their surrogates — aggressively challenge claims of “gross negligence” and endangerment. They must consistently reassure the public – and by extension their workforce — that they responded swiftly to shut down facilities when necessary, mandated masks, implemented social distancing requirements, and kept the food supply safe — moving as fast or faster than officials even demanded. By pushing back against the trial lawyers’ message of corporate greed and creating a competing viewpoint based on truth — through media appearances, articles on the op-ed pages, videos shared on social media — industry can restore a two-sided flow of information, reveal discrepancies and inconsistencies in their opponents’ attacks, and bring favorable, pro-industry considerations back to the public debate. 

If you are a corporate leader, you owe it to the country to fight back publicly, aggressively, and truthfully against these assaults, so your company and others like it can remain free to do what it does best — provide the essentials of the American way of life to families and communities throughout our nation.