COVID Liability Issues

[Music]

 

Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's Practice Groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at www.fedsoc.org.

 

 

Dean Reuter:  Welcome to a special Executive Branch Review Week edition of The Federalist Society’s practice group teleforum conference call as today, May 1, 2020, we discuss COVID liability issues. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the experts on today's call. Also, this call is being recorded for use as a podcast and will likely be transcribed and put on The Federalist Society’s website. And this call, finally, is open to the press.

 

      We’re very pleased to welcome to Teleforum today two guests. We’ll hear opening remarks from each of eight to ten minutes. We’re going to hear first from Christopher M. Carr. He’s the Attorney General of the State of Georgia. And he’ll be followed in opening remarks by Harold Kim. He is President of the U.S. Chamber of Commerce Institute for Legal Reform.

 

      As always, of course, we’ll get to the audience for your questions, so please have those in mind for when we get to that portion of the program. With that, Attorney General Carr, the floor is yours.

 

Christopher Carr:  Dean, thank you so much. And let me start by thanking you and The Federalist Society for inviting me to be on this panel with Harold. Harold’s a longtime friend and does an outstanding job, and I’m just honored to have been affiliated with The Federalist Society going back to law school, and so a little over 20 years. So it truly is a tremendous honor to be on today.

 

      And I thank you for the kind invitation, and obviously very timely as we talk about COVID-19 and the response that we’ve had. And obviously, I’ll focus on the role that state attorneys general play and have been playing as we’ve all been dealing with this very unique public health crisis.

 

      And I think the best place to start is just to talk about what is the role of AGs in general, and then how does that fit into the public health crisis that we’re dealing with. And quite frankly, I will say that it’s our duty and it’s my duty as a state attorney general to do three things. And one’s to defend the Constitution of the United States; second, defend the Constitution and laws of the State of Georgia; and three, to represent the interests of the people of our state.

 

      And I think, particularly now, that traditional role of being the honest broker of what the law provides and what it prohibits is critically important. If the law needs to be changed, then that’s the legislature’s job. But for us to be able to stand up and to deal with our governors or the agencies or even the people of our state to be able to stay here’s what you can do, here’s what you can’t do. And a pandemic doesn’t necessarily change that. There’s a lot of emotion. There’s a lot of uncertainty. But again, we are based on the rule of law, and that’s not just in the good times. That’s at all times. And so to be able to play that particularly fundamental foundational role, I think, is critically important.

 

      So as we take that and then we take the philosophy of how we’ve been dealing with COVID-19, based on our federalist principles, based on the principles of federalism, I have to say I’m very pleased with the philosophy that our governor has taken and the Trump administration has taken, which is basically this, just to say, look, this crisis needs to be locally executed, state managed, and federally supported. And that’s how we have approached this with our role, the lane that we’re in as state AGs is to really, again, truly advise our client agencies in particular, but also be the legal voice for the interests of the people of our state as we go forward.

     

      So our role has been -- there’s basically been three main areas that we have focused on in our office, and I think is very similar of state AGs all around the nation. So one, again, advise the agencies, boards, and authorities that comprise state government. And in particular, our governor, Brian Kemp, has a task force like many other states have as well. And we have several agencies that are on the front lines, and I’ll get to it in just one second. The second is dealing with price gouging, which every state generally provides for and how we deal with those issues. And the third area has been scams. So I’ll get to each one of those.

 

      But starting with the agencies, the boards, and the authorities that we advise on a day-to-day basis, and again, it’s not just issues COVID related. There’s a lot the state government is continuing to do. But specific to COVID-19, we have a number of agencies that are point of the spear as we’re dealing with the crisis in the State of Georgia, the Department of Public Health being one, Georgia Emergency Management Agency. And they’re the ones that really have taken the lead. So as you’re talking about operations as well as open meetings, open records issues, we’re trying to advise them on that issue. Department of Corrections and Juvenile Justice, medical board, dental board, nursing board, all issues that we’ve had to deal with and help advise with, Department of Public Safety, employment related matters that have dealt with our agency. So these are all issues that we’ve dealt with.

 

      And one of the traditional roles of the state AG and particularly in our office is to preserve the integrity of the Open Meetings and Open Records Act. We actually have a -- we play a role where we advise and play a role of intermediary between constituents that have concerns actually with local, with city and county governments. And so we have continued to field questions as it relates to that issue as well, and we try to, again, be the honest broker there because again, even during a crisis, more importantly now than ever, you’ve got to have access to your government and to make sure that we do it the right way. And we provide for open meetings and open records contingencies in a public health emergency. So again, these are all the traditional roles that we’re playing and are specific, obviously, to the COVID-19 crisis.

     

      Price gouging -- each state has an issue that they’re dealing with or has state laws that involve price gouging. In Georgia, basically, you can’t -- once the governor has established a state of emergency, you can’t charge more for a good or service that deals with the public health and welfare after the state of emergency’s been declared than before. However, it truly is an investigation that we engage in. When we get a complaint, we let the company or the individual know that they’ve gotten that complaint. However, Georgia law provides that you can charge more so long as you can show that you have an increased cost somewhere in the supply chain or increased costs of workforce and that sort of thing.

 

      So we put folks on notice on the front end, but we truly do an investigation to make sure that we understand what’s really going on as it relates to those increase in costs. And we see more and more now, obviously, folks online. And so as I’ve said, we don’t see the traditional Chamber of Commerce folks that are generally getting a lot of these complaints filed against them. We’re seeing more and more folks that are online.

 

      Before I get to that, let me also say we -- oftentimes when price gouging laws are in effect it’s because of a singular event like a hurricane or a tornado, some sort of weather related event. So we oftentimes will see complaints against hotels or food or fuel, water. Those are just generally what we’ve seen. We’ve seen it a little bit differently though in this public health crisis. We have seen it with food, particularly commodities, eggs and meat being specific there. We have seen it, in some respects, water, but really what we’ve seen is something unique which are cleaning supplies, disinfectants, toilet paper, but also medical supplies. And so this has been a different -- this public health crisis has been different in that regard.

 

      But as I mentioned, often we’re seeing a lot of these complaints have come online. And I’ve got to commend the private sector. We have been working very, very closely with Amazon and eBay and Walmart and Facebook and Chevron and Publix and specific to Georgia, Georgia Association of Convenience Store Owners and food industry folks and Better Business Bureau. And these type of companies have been really fantastic to jump on the issue to investigate because they don’t want folks -- basically, at a time like this, we need to be assisting one another, not trying to take advantage of one another consistent with the law. And these companies have really done an outstanding job on that, and so I really appreciate the role that they’ve played. They’ve been fantastic partners as we’ve gone forward.

 

      And then the third area as I mentioned, Dean, is scams. And it’s unbelievable, but criminals are trying to do anything they possibly can to separate you from your money or from your personally identifiable information. And one of the areas that we focused on is providing better communication between our federal and state partners. One of our U.S. attorneys, Charlie Peeler from the Middle District of Georgia, created the federal coronavirus fraud task force to help us better communicate because some issues are state related, some are federally focused like the hoarding EO that President Trump put into effect as related to medical supplies. But we’ve tried to make it as easy as possible for our constituents to reach out to any of us.

 

      But some of the scams that we’re seeing, again, unique to COVID-19 -- first of all, our investigators have told us there’s over 110,000 websites that have been created in the past four to six weeks that are COVID related and are suspect. And generally, they’re short lived, folks that are trying to, again, scam you out of your money or your personally identifiable information, and they’ll close down pretty quickly.

 

      But we’re seeing scams as it relates to vaccines and treatments which, again, there’s not a vaccine yet. There’s a lot of work going into it, but we don’t have one yet. Treatments and therapies, the same type thing. A lot of folks are working on it, but a lot of focus on that. Supply chain scams, as we were saying, toilet paper, again, being one of the high demand issues that we’d see a lot of scams, folks saying that we’ve got household supplies, we’ve got toilet paper, we’ve got medical supplies.

 

      We’re seeing a lot of charity scams. Something will look like a legitimate charity but ends up neither -- the name will be just slightly different, but it’ll look like a great website. And we see a little bit of that. We’ve seen investment scams. We’ve seen folks that reach out and say, “Hey, I’ve got a new company. I want you to invest in my company. We’ve got a cutting edge treatment or therapy,” and that sort of thing.

 

      And then we’ve also seen scams related to the federal government’s response and the stimulus money. We saw a text scheme that was going on where folks were getting texts saying, “You’ve been preapproved for your $1,000 or your $1,200. Just click on this link.” And of course, the federal government doesn’t reach out to us by text. If they ever do have business with us, it’s generally by snail mail. But we’ve seen any number of areas as far as that goes. So we’re working very closely on these scams.

 

      And before I turn it over to Harold, because I know he’s going to talk a little bit about business liability and that sort of thing, but as we’re reopening, we want to provide -- Georgia’s been the number one state in the nation in which to do business. I was the Commissioner of the Department of Economic Development for three years under Governor Deal, and so I spent a lot of time working to solve problems with businesses and make sure that we addressed problems because I think the interests of the people of our state include the citizens as well as those that are part of the free enterprise system. And those that are doing it the right way need to be supported and know they have partners. And those that are doing it the wrong way, we’ll make sure that the law is upheld.

 

      But as we’re reopening, I think it really is -- there’s a couple of different approaches. From a market driven perspective, I think we’ve got to recognize that folks -- there has been a psychological effect of the COVID-19 crisis. I think people want to know that they are going to be safe, whether they’re returning to work, whether they’re going to a retail operation, whether they’re going to go to a restaurant, whatever it may be. And I do think the market will reward those that recognize that and take steps to make sure that people feel safe and are going to be safe as they return. And there’s that balance so that we’ve got to recognize that, I think, from an employer’s standpoint and a customer standpoint.

 

      But businesses also need to know that it’s going to be okay to reopen as well. And that’s where some of the liability protection issues will come in. And we’ve been working with our chamber, with the Georgia Chamber and with the U.S. Chamber. I was very pleased to see Senator McConnell say from the federal level that they’re going to be focusing on this issue. We’ve spoken with our governor’s office and the leaders of the legislature to talk about this issue as well, but I think the issues of medical malpractice and exposure liability and product liability are those that should be discussed as we’re going forward.

 

      And those that are doing it the right way and are trying to do it the right way, particularly those that have changed their manufacturing practices in order to address those on the front line, making masks and face shields and whatnot, we don’t want to discourage folks from doing that. We want to encourage that kind of real innovation and change. And so I know those will be issues that we will deal with as well.

 

      But I’ll wait beyond that, and I don’t want to step on Harold’s toes any further. But with that, I will turn it over to my colleague and friend with the U.S. Chamber’s Institute for Legal Reform, my friend, Harold Kim.

 

Harold Kim:  Thank you very much, General Carr, and for all of the good work that you do for the people of Georgia. And thank you Dean and The Federalist Society for this invitation and for the outstanding contributions that you guys do for the rule of law.

 

      What I’m going to talk about is really hitting the national headlines. It’s hitting Washington, all throughout the states, and it’s about the liability issues that are confronting the business community writ large, small businesses, medium-size businesses, other large businesses. There has almost been an awakening of these concerns in the wake of the COVID-19 pandemic, and these are concerns shared by all stripes of industries across the country.

 

      And fundamentally, there is a significant amount of worry about the liabilities, the litigation that could emerge as businesses open up or as businesses are currently in operation today. And these are companies that are facing an unprecedented time. And I really want to underscore that term unprecedented because there really is no playbook to look at when it comes to trying to restart our economy.

 

      And the one concern that we hear uniformly across the board has been about the liabilities, about the risk, about the uncertainty, and hence the reason why Leader McConnell had identified this as an important issue as Congress gavels in next week. State legislatures, governors, governors in states like New York and in Illinois and in Michigan have acknowledged the significant concerns about the liability risks when it comes to the front line of healthcare workers and the need to protect those who are protecting us from this pandemic.

 

      And so the Chamber has really led the effort to try and identify the significant areas of concern. And I think the best way to explain it is to look at this through the lens of four major components. The first is, and probably one of the largest area of concern, and General Carr had referenced this earlier, is what I would describe as exposure claims.

 

      These are claims that could be alleged, either in the employer or employee context that an employer did not necessarily take reasonable precautions to prevent the exposure to the coronavirus. This could also extend to customers who visit a grocery store or go to a dry cleaner. These are enormously critical issues that could present serious risk from individual actions under negligence theories of liability to class action litigation, and something that we think ought to be addressed at the national level, but we do know that states are looking at this as well.

 

      The second major area involves product liability claims specific to protective equipment or countermeasures. Congress has certainly acknowledged the need to extend liability protections for protective equipment manufacturers, and we saw that in the wake of Hurricane Katrina and the enactment of the so-called PREP Act. The protections under the PREP Act were extended during the CARES Act legislation which authorized this paycheck protection program to volunteer healthcare workers in addition to other areas of protective countermeasures.

 

      The one issue that we know is that a lot of American businesses are repurposing their manufacturing. So for example, in Kentucky, you see distilleries now manufacturing hand sanitizer. And there are liability protections that should attach under those circumstances. Certainly, the Kentucky legislature just last month had acknowledged some of these concerns and enacted legislation that was signed by a Democratic governor and something that we do think is a core issue when it comes to future areas of liability.

 

      The third pillar or the third core area is what I would describe as medical liability and something that has already been pursued at the state level through these executive orders from blue state governors as well as red state governors. It’s really important to protect those who are protecting us, and there is an acknowledgement that our frontline healthcare workers and the facilities and the hospitals are encountering an enormous amount of potential risk as cardiologists are now treating COVID-19 patients, and the repurposing to try and contain the spread of this virus and to treat those who have been exposed, and something that we know is of major concern and an area that requires a lot of potential solutions.

 

      And then the fourth area that we think that policymakers should be looking at, and this is likely mostly in the federal arena, and it’s the issue of class action securities litigation. Many of you know that our stock markets or capital markets have been taking a bit of a nose dive, and you can imagine disgruntled shareholders advancing theories of liability that a company did or didn’t take certain actions in response to the coronavirus that depressed the stock price. And this has really been a coda to an emerging area of concern from the business community that tracked the past several years, and we think that there are solutions that could be pursued on that front.

     

      In terms of the solutions, I think the best way to describe the chamber’s approach is that they have to be timely, they have to be targeted, and they have to be tailored. And these are solutions that will offer small businesses the types of reassurance that they’re not going to be sued if they follow the appropriate standard of care. And things that have already been accomplished by Democratic governors or Republican governors are proposals that policymakers should be looking at across the board. This is about giving the economy a good boost and to give the certainty that business owners all across this country really need to have in order to engage in commerce at a national level and something that is particularly important at this moment.

 

      Again, this is an awakening on so many different fronts. And from the national news media to local news media, from small businesses to state and local chambers, everybody is talking about this. And there are major solutions that need to be pursued in a time and a moment where our economy has to get back up and running because no business should have to go and file for bankruptcy in the wake of this pandemic, this unprecedented pandemic. And having the threat of litigation that is on top of that could definitely be very problematic on so many different levels.

 

      So with that, Dean, I will turn it back over to you as we can start a Q&A.

 

Dean Reuter:  Terrific. Thank you, gentlemen, both of you, for those opening remarks. We’re off to a good start. Let’s turn right to the audience. Go right ahead, caller.

 

Caller 1:  Thanks so much. I wanted to thank General Carr and President Kim for very excellent remarks. I have a question related to the medical liability issues raised by President Kim. Our state is looking at somewhere between a 10 and 20 fold increase, year to year, or year over year, of workers’ compensation claims. And I’m just wondering whether either General Carr or President Kim know about activities in the states or best practices to cope with such a large increase in those kinds of claims.

 

Harold Kim:  Well, this is Harold Kim, and thank you for your question. We know that when it comes to the traditional employer/employee relationship, whether you’re a hospital that has nurses or healthcare providers and there are injuries on the job, whether it’s exposure to COVID-19, that the workers’ compensation pathways will be pursued as a mode of compensation. And this obviously is a state by state system to avoid having to go through the tort system.

 

      What we are seeing are proposals emanating through a number of states that are looking to change the presumptions for employees in terms of whether they got exposed to the coronavirus during the course of work. And I know that certain states are looking at changing some of those threshold requirements. But on top of that, the proposals that we are talking to state legislatures, to Congress about wouldn’t intrude upon the standard workers’ compensation apparatus that’s been in place, but really to focus on those areas where claims that go outside of workers’ compensation and into the tort system or, even broader than that when it comes to third-party exposures and to customers, are one of the proposals that we think that policymakers should be taking a look at.

 

Dean Reuter:  Attorney General Carr, anything on this point?

 

Christopher Carr:  Yeah. This is Chris Carr. I would say that’s a great question. We haven’t seen those types of numbers yet, but we’re paying attention and being mindful of it. And I have not heard specific Georgia workers’ comp issues come up, but something we’ll certainly keep an ear to the ground for.

 

Dean Reuter:  We’ve got two questions in the queue right now. Let’s take another call.

 

Rebecca Seidel:  This is Rebecca Seidel. Hi, Harold.

 

Harold Kim:  Hi, Rebecca.

 

Rebecca Seidel:  Harold, can you hear me?

 

Harold Kim:  It’s great to hear your voice. How are you?

 

Rebecca Seidel:  Calling you from Louisville. I appreciated the mention of the distilleries out here doing the sanitizer. Harold, I was wondering if you could expound on the liability protections because my concern is that nobody is countering -- those are opposed to instituting liability protections. They’re saying it’s going to make companies feel bulletproof and make them reckless or employers reckless and not take appropriate care.

 

      When you and I worked on the judiciary committee when we did liability protections, we always had reasonableness built into it, and that they can’t be careless or reckless or anything like that. If you can elaborate on any discussions you’ve had with McConnell’s office or anybody about such liability protections might be crafted?

 

Harold Kim:  Well, first of all, I hope that all the repurposing by the distilleries when the economy gets up and running again is not going to affect the supply of bourbon because I am definitely a big fan of the product. But that being said --

 

Rebecca Seidel:  -- So am I, Harold.

 

Harold Kim:  That being said, as I said earlier, the solutions have to be timely, they have to be targeted, and they have to be tailored. One of the things that we think that employers should have is a safe harbor to liability if they follow CDC guidelines and/or state and local guidelines. There should be exceptions to reckless or willfulness misconduct, or even gross negligence.

 

      And these are part of the proposals that we have shared with policymakers, not only here in Washington but also throughout the country as well and something that we think acknowledges a good, meaningful type of reasonable approach when it comes to the policies because if you establish a standard of care when it comes to what employers or businesses should follow in terms of what the safe harbor could offer, then it’s going to also have the effect of encouraging more compliance. It’s going to encourage a really deep, thoughtful way to reinforce what employers all across this country are already doing, and that is to protect their workforce, and it’s to protect their customers because that is a huge, huge focus and something that businesses are very committed to doing.

 

Christopher Carr:  And Harold, I would just dovetail and support what you just said. In fact, Joe Rogers, who’s the CEO of a great Georgia company called Waffle House, said exactly that. He said, “Just tell me what the rules are, and we’ll make sure that we follow them. But just make them clear.” And so I think that’s a great point, and we’re seeing that from our businesses as well.

 

Dean Reuter:  I’ve got a quick follow-up question, maybe for Harold Kim, and that’s -- I think when people hear safe harbor or things like that, product liability protections or medical liability protections, they jump right away to immunity, which is obviously not what you’re talking about here. You’re talking about just, I guess, an adjustment in the standard of the care or an adjustment in the legal standards in order to encourage people to repurpose their business and produce goods. Is that right?

 

Harold Kim:  Yeah, that’s right. It’s, again, to be clear, we are talking about a safe harbor to liability if you follow A, B, C, and D. And there are clear exceptions that should apply to intentional or recklessness conduct. And again, I think having this type of standard of care will give the type of comfort, certainty, the guidance that companies and businesses all throughout can follow to basically contribute to a much needed economic recovery.

 

Dean Reuter:  Very good. Head in the direction of area code 609 for our next caller. Go ahead, caller.

 

Caller 3:  Hi. Thanks so much. I actually -- my question was really along these same lines. I feel like a lot of times, we hear a focus to the extent that we’re pushing maybe some legislative fixes like this. It’s sort of the flip side to a focus on immunity is a discussion about frivolous litigation. And it seems to me that that a little bit misses the mark in terms of what we’re trying to address here, and I think, Harold, what you were talking about just now as far as giving businesses confidence.

 

      My question is does it -- is there a way that this actually is a sort of an abdication of responsibility by policymakers to not support the guidance that they’re offering with some degree of a safe harbor, essentially to say we want you to do A, B, C, and D. We want to revive the economy. We want to get things going. But if A, B, C, D, and E don’t work out, you’re kind of just on your own there.

 

Harold Kim: Thank you for your question. I think what we’re talking about in terms of our proposals -- and I can certainly speak to frivolous litigation, but that’s not the real focus here. There is frivolous litigation, certainly, but it’s about giving the confidence to business owners who see this risk, this unmanageable risk, because I think everybody knows that historically in the past few decades, there have been movements on tort reform or legal reform in this arena because of an out of control litigation system. And there’s really very little doubt that the U.S. civil justice system has been subject to abuse, whether you look at class action law suits or asbestos litigation or things that are emanating out of California in terms of these consumer cases.

 

      And so I think what this is about is really giving the certainty and to try and remove that cloud of uncertainty when it comes to the liability risks because these are the questions that Main Street is asking. If we open our doors, what’s going to happen? And I also want to add that it’s not just Main Street small businesses. We’re talking about churches. We’re talking about schools. We are talking about a whole host of operations that have a gathering function.

 

      And everyone throughout this country are trying to understand and appreciate what the next step is because as I mentioned earlier, there is no playbook to this. We’ve never experienced this. I’ve certainly never experienced this. Many people on this call have never experienced this. And it’s providing that type of North Star in terms of managing these liability risks, these business decisions, and these non-business decisions in order to get things back up and running again.

 

Christopher Carr:  And I think it’s a great question. And I think from where I sit, as far as state AG looking at how a lot of these EOs were rolled out and what we were tying -- or what the governor was trying to accomplish and what was going on at the time, I think to Harold’s point, there’s no playbook. You’re trying to deal with the issue in real time. You’re thinking through what is the healthcare concern that we’re trying to address right now to keep people safe.

 

      I don't know that it was negligence on the part of those that were drafting, and I’m talking about more on the EO side than it would be necessarily on the statutory side right now. But as far as not looking far enough down the road, I just don’t think that’s what was happening because you’re trying to get something accomplished quickly in real time that was healthcare related.

 

      And now we’ve had some time to step back. The COVID-19 crisis has settled in a little bit more. We can think a little bit further down the road. We can look a little bit further down the road. And now we’re seeing these issues like these liability issues. And I mentioned to Harold the other day too, it isn’t just kind of traditional retail stores, manufacturing, etc., etc. I mean, it goes everything from daycare centers and camps -- I’ve talked to folks that are on camps and that sort of thing.

 

      But at the particular time, I think we were focused on the healthcare piece, or those that were drafting these were focused on the healthcare piece. And now we’re able to look a little bit further down the road from a strategic standpoint and talk about, all right, what happens next?

 

Dean Reuter:  Attorney General Carr, let me ask you a follow-up question, if I could, on something you mentioned, and that’s -- The Federalist Society looks at federalism issues all the time, and this is maybe a perfect dissection of those issues. And you mentioned local, state, and federal  government. And I wonder if you could tell us more about how that’s actually operating in this circumstance.

 

      New York is not Atlanta, but Atlanta’s also not Rome, Georgia. And we’ve got states where a governor’s saying one thing and local officials are opening beaches, or the reverse. Where is the seat of power, given this particular crisis? Where should it be? And how’s it worked on the ground in Georgia? If you could go into that a little bit more. Now all of a sudden, we have three questions pending, so --

 

Christopher Carr:  -- Sure. Dean, I think that’s an excellent question. And based on our system, again, each of those levels of government have its role and its function. And the reason I said -- and there are strengths and weaknesses to both. And I think in time of a crisis, one of the things that has really come out from a practical standpoint is maximizing the ability of each layer of government and what it was intended to do, local being closest to the people and state, again, managing the issues that have been reserved to the states and the federal government, again providing some support. So I believe this was an opportunity for folks to either look at it and see that let’s maximize our strengths and communicate really well or you can focus on the differences and not work in a collaborative manner and try to push it off to somebody else.

 

      And I think we’ve seen a little bit -- you mentioned Rome, and Rome’s a good example. There’s one that’s actually better -- or there’s two, I think, different examples in Georgia. One, Albany, Georgia, has been a hot spot. And there are specific issues from a healthcare perspective that we need to address in Albany that just aren’t happening in other places in the state. We have beaches in the southeastern part of the state that we don’t have in the northwest part of the state. To me, that could have been a great opportunity for state managed, locally executed.

 

      But we did have an example where many mayors, several mayors thought that each jurisdiction doing it on its own was confusing, it was patchwork. And there may have been that but for the fact that there’s a communication piece that could have also played a role, working together in different jurisdictions, mayors working together, county commissioners working together, communicating with the state. Some saw that as a strength. Others have seen it as a weakness. And depending on how they came about it, influenced, I think, some of their decisions on the ground.

 

      So after a period of time, the governor was trying to utilize and allow local jurisdictions to make those decisions on their own, but he was getting criticized and criticism was coming, so he declared the first ever public health emergency in the State of Georgia. And he now is -- now that the state occupies that space, there are certain things that we’re doing that the locals can’t.

 

      But, again, the issue of the beaches is not one that impacts -- we’ve got 159 counties. There are about four or five counties that that would impact. But now the state has taken over the space of public gatherings and that sort of thing, and so now there’s criticism coming on the other side. Well, why aren’t we allowing local communities? Well, from a political standpoint, the governor was getting criticized. Folks were saying he was dragging his feet rather than trying to say you know your community better than the state does. Communicate to us what you need so that we can support you in utilizing those federal resources as well. So I think it’s been a mixed bag.

 

      But again, it goes back to your philosophy and what you think, what you believe is the right way to go, and based on what the laws and the legal structure that we have. But to me, it would have been a great opportunity for us to do just that, but you’ve got to open up the lines of communication. You’ve got to trust the people that you’re working with. And that wasn’t all mayors. It wasn’t all county commissioners. But some criticized, saying there’s not a, quote, “state response.” Well, the one-size-fits-all isn’t appropriate in every particular community. But we’ve kind of moved a little bit more toward that, and I think you’ve seen that around the nation as well.

 

Dean Reuter:  Very good. Thank you. Harold Kim, anything on this point?

 

Harold Point:  Nope. I think everything was really well said by General Carr.

 

Dean Reuter:  Well, I mentioned we’ve got four questions pending now, so without further delay, we’ll go to area code 916. Go ahead caller.

 

Caller 4:  Thank you. Terrific conversation today. I’m calling from California but originally from the Peach State, so this is of great interest to me. My question related to liability is that we’ve been advising churches, nonprofits in particular, on the west coast but also some in Georgia and on the east coast. And in the -- while the shutdown orders have been in place, we’ve been trying to educate them a little bit about reopening and issues with negligence per se if they open in violation of an order. But now that reopening is starting in other places, we still see a lot of potential for liability for assembly uses like churches as well as businesses and other large venues.

 

      I’m wondering if either of you have given thought to or if you’ve seen any ominous trends where churches, large venues, could be subject to strict liability for the continued circulation of the virus being an inherently dangerous condition, whether that’s a realistic concern that we should have or whether you think just the ordinary rules of negligence are going to come into play going forward.

 

Christopher Carr:  I haven’t seen it in Georgia, but Harold, maybe you’ve seen it more broadly. But I haven’t seen that as an issue in Georgia at all.

 

Harold Kim:  Yeah, I think most of our focus and the concern we’re hearing about is in the arena of negligence. And we’ve seen some early litigation already filed in that context. The thing I would flag for you though, because practitioners who are talking about the potential for litigation and the risk, one of the things that we keep hearing, and I think this is right, is how do you establish causation because of the inherent challenges if you, like for example, you take errands and you go to the grocery store, and you go to the dry cleaners, and then you contract the coronavirus, how do you establish something when it’s virtually invisible?

 

      And I think one of the areas that we have started flagging as a potential issue of concern is the rise of the public nuisance doctrine. And as many of you might know, this is a doctrine from, I don't know, the 12th century common law traditions from England. And you don’t have to show causation under those circumstances. And we’ve seen some activity on this front. I think that there was a public nuisance case filed recently against Smithfield ham, or Smithfield company. And so that is something I think warrants some concern as these legal theories emerge and evolve in the next several days, weeks, and months.

 

Caller 4:  All right. Thank you.

 

Dean Reuter:  Very good. It almost begins to feel like an attractive nuisance issue. I’m going back to my early law school days there, which makes me think of the assumption of the risk. Some ownership of risk has to happen here on the part of the people going into these stores. But in any event, three questions pending. Let’s turn to our next caller.

 

Glenn Lammi:  This is Glenn Lammi from Washington Legal Foundation calling. Dean teed this question up pretty well with his own question, and that is whenever you see instances of national tort reform discussed, trial lawyers become federalists all of a sudden. So I’d be curious to know how Harold would respond to that and what the attorney general thinks of that in general.

 

Harold Kim:  Well, look, I think that the Commerce Clause in the Constitution gives Congress the authority to enact this type of reform. We certainly saw it with the Class Action Fairness Act that I worked on with Rebecca Seidel back during the 108th and was actually signed by President Bush during the 109th Congress. We heard concerns, federalist concerns that you’re intruding on states’ right, but when you look at how litigation systems, especially abusive ones, have an impact on interstate commerce, I think that there is sufficient grounding in terms of why Congress has the authority to act.

 

      There was also the gun liability bill that also passed in the mid-2000s, and there was talk about federalism concerns in the Tenth Amendment and the Commerce Clause. And I think that by and large, last time I checked, those laws are still in continuity. I do think that there were some challenges to the Class Action Fairness Act early on under these very theories, but they didn’t go very far. I think that they got shot down by a couple of district courts.

 

Christopher Carr:  I always just talk about in a number of different contexts, if it has to do with national security or interstate commerce, it’s in the purview of the Congress to deal with. If it has to do with public safety or consumer protection, the states have an interest from an AG’s perspective. So I think everything that Harold has said is consistent with that. And again, I was actually very pleased to hear that Leader McConnell was wanting to take this up as a red line issue for him.

 

Dean Reuter:  Let’s head to our next caller. This looks like area code 860. Go right ahead, caller.

 

Marsha Rabiteau:  Thanks, Dean. It’s Marsha Rabiteau. This question is for Harold. Actually, I have a couple of them, Harold. You touched on one of them which had to do with notions of specific causation when you’re dealing with such a stealth virus, people that aren’t really sick but can pass it along, movement among these various businesses that are going to be opened up and so on. And you did refresh me a bit. I need to get back to the law books and some of the basis for stepping aside from our normal thoughts about causation.

 

      So one question is in terms of grappling with language, which is something I’ve been trying to do on this issue, it is pretty difficult to do it and not swallow up and pretty much dam the legislation with it being too broad. But I’m curious about any of the efforts that have been undertaken to legislate or to provide some further protection along those lines, whether it be through nuisance theories or whatever.

 

      The other two questions have to do with the exposure in places of employment for contractors, customers, distributors that come in in the normal course of doing their business with a company, is the language that’s under consideration at the federal level broad enough to cover people who enter the premises who are obviously not there -- it’s not like they’re going to a restaurant, but rather they’re doing business with companies?

 

      And the last one has to do with the issue that was brought up earlier on the call, which is through executive order and some of the states passing some -- or indicating that the workers’ comp laws are going to be changed to shift presumptions, burdens of proof, and so on and so forth, favoring employees who have been exposed in the workplace. And so it’s kind of a jumble of questions there, but you take them in any order or not at all.

 

Harold Kim:  Well, Marsha, we haven’t talked in way too long, and it’s great to hear your voice. I’m glad that we’ve reconnected.

 

      Okay, let me see if I can address this. You had a three-part piece to those. On the public nuisance theories, most of those theories are being played out in court. The public nuisance has been used in the context of how cities and counties are bringing cases, let’s say, for the opioid epidemic. We saw litigation in Oklahoma just last year, and there are a number of these cases that are now consolidated in a multidistrict litigation in the Northern District of Ohio.

 

      But it goes beyond that. We’ve seen it with climate change. We've seen it with cases brought by school districts against Juul, the manufacturer of vaping products, data privacy. And so this seems to be an area that is getting a little bit of a reemergence. We saw it previously in the context of lead paint, and it was largely discredited by state supreme courts. And so there is a pipeline of litigation that is currently out there, and I think that most of the focus has been in the trenches of the courts.

 

      On your second question about the scope and coverage of the exposure liability safeguards, it does go beyond the employer/employee relationship. It captures customers, businesses that are open and what are the standards of care under those circumstances, in addition to third parties. And so the aim is to try and reach a broad segment of businesses but also even beyond that because, again, there are other convening points that go beyond a small business that’s not a restaurant or a retail outlet.

 

      In terms of your third point about workers’ compensation laws, you are right to point out how certain states are looking at presumptions now on exposure when usually there’s a little bit of a process in order to get workers’ compensation benefits that you had to show was on the job. If you fell doing something and you hurt your back, obviously that is your traditional type of workers’ compensation case. What I will say is that our proposals are not designed to touch upon workers’ compensation because this is a state-by-state assessment in terms of how to resolve disputes in the traditional employer/employee framework.

 

Marsha Rabiteau:  Thank you.

 

Dean Reuter:  Attorney General Carr, a chance to weigh in here, if you like.

 

Christopher Carr:  I thought Harold did an excellent job.

 

Dean Reuter:  Very good. I agree. Three questions pending. We've got about 10 minutes left. Let’s see if we can get to all of these. Go ahead, caller from 703.

 

Caller 7:  I had a question on the price gouging point. Obviously, there’s huge problems that exist with that, but at the same time, one way the free enterprise system addresses sudden and unexpected needs is by charging enough for the product that it makes it worthwhile for the supplier to go to major extra lengths to supply the produce in quantity.

 

      And one small example would be Uber and taxis where taxis couldn’t raise prices during storms, and as a result, no taxis were available. With Uber, you can get an Uber, you’re just going to pay five times as much. You may not want to do that, by you may at times.

 

      This is not quite the same thing, but it’s the same basic question. So how do you keep -- while concerns about price gouging are completely understandable, how to you avoid the resistance to that getting in the way of providing the products that are needed?

 

Christopher Carr:  Well, it’s a great question, and it’s one that comes up too, oftentimes, just about price gouging laws in general. And I understand it completely. Again, I’m a free market, free enterprise person myself. And the flip side is most states, my state included, have passed laws that regulate it. That’s why -- my only answer I can give you is that’s why we investigate each particular case and look into it and see what we’re dealing with.

 

      I mean, just a great, exaggerated example, but it’s one that we saw was on eBay, four rolls of toilet paper for $51,000. Now, we know that there is a shortage in toilet paper and there may be an increase in costs. We want to investigate it. But you couldn’t justify four rolls of toilet paper for $51,000. And to my knowledge, nobody bought it, but it’s out there.

 

      So again, it comes down to the price of the inputs. It comes down to the price of the supply chain and the increasing costs of workers and that sort of thing, but we are data driven, and that’s the mandate that we have as a state attorney general, state attorney general in the State of Georgia, that’s what we do. And so we investigate it. And the way to answer your question is is we want to look and see what the data shows us, see what the information provided by the particular company is, and based on the laws in our state, enforce those laws.

 

Dean Reuter:  Harold Kim, anything on this point?

 

Harold Kim:  No, I don’t think I have anything to add.

 

Dean Reuter:  Very good. Let’s go to our next caller. This looks like area code 475. Go right ahead, caller. You’re on. Go ahead, caller.

 

Caller 8:  Hi, good afternoon. Yeah, sorry. Multitasking here on a Friday afternoon. Thanks for the opportunity. So I think this has been a great conversation. And I came in a bit on the back end, but do you think that the impact of what we’re referring to as the “new normal” going to also have some implications on consumer protections and policies around that from a judicial aspect for the communities that we’re trying to impact through this particular lens that we’re looking at now? And if you’ve already covered this, then please disregard the question and I’m all set. Thanks for the opportunity. Have a good afternoon.

 

Christopher Carr:  This is Chris Carr. Let me just ask what specifically about consumer protection do you think might be --

 

Caller 8:  -- Yeah, so I was just referring to because many things that we’re looking at in our new normal involve some engaging with so many online platforms. So I’ll just give you an example. I placed an order through this online -- and I’m not an online astute person, so I’m also adjusting, like many others out there.

 

      So just a clarification on how do we -- this community that we are firmly rooted in our values and we have a system that’s in place that’s probably working in many aspects of different local communities or locales and jurisdictions, but how do we sort of balance that with what we are going to refer to now as the new normal, which is going to be more and more online sort of transactional, especially for the elderly that we have senior members in our family, and they’re not astute to that environment. So that’s the only reason why I ask this question. And it may be a dumb question, but I apologize anyway.

 

Christopher Carr:  No, it’s not at all. I just want to make sure that I answer it accurately. Let me just answer it a couple of different ways. Number one, we know -- one is, I’ve said this in many other examples too, but I know the word’s different. I just don’t know yet how it’s different. And I think that’s what we’re learning as we’re going forward, just in general. Big picture, I think that’s just a statement to be made is we don’t know, quote, “what the new normal will be,” but we know the world is going to be different, and we’re learning as we go along.

 

      And again, from a policy perspective, I mean, again, my job as state AG is to enforce laws that are duly passed by the legislature and signed by the governor. From a policy perspective, though, that’s what we’re trying to -- I would hope we’re going to be data driven and evidence based, and that’s the ideal. And then the legislative process is what it is. It seems to me from a technology standpoint, the greatest lessons that we’re learning have to do with telemedicine, or at least I’ve seen in Georgia, telemedicine, education, and the workplace, and how we can do things a lot differently.

 

      And we’re learning that folks can do some high quality work and don’t have to be sitting behind a desk 9 to 5. We’re seeing the importance of telehealth. We’re seeing the impact that technology can have in the different parts of the state. Again, there’s 159 counties in Georgia, 180 school systems, and not all of them have the same ability to provide online classes, so how do we deal with that going forward?

 

      From a consumer protection standpoint, I think because there have been so many online platforms that we’ve been dealing with and there’s always some that may come, we’ve been used to -- or at least we’ve got a background and a history of dealing with some of these consumer protection issues now. I don't know of any that have been just kind of unique other than, as I mentioned on price gouging, we’re seeing different areas of concern like sanitation, like disinfectants, hand sanitizer, medical supplies. So the product might be different, but the concept has not changed that much. So I think as we’re going forward, keeping our eye open and seeing if there are some new normal related technology and consumer protection issues that we have to deal with.

 

      But again, I think you get the best outcomes when you work collaboratively with the public sector and the private sector and to establish those relationships. I think the fair application of the law, which is part of the rule of law, is best done when we understand what companies do, what individuals do, and that includes the tech side of things. And Atlanta’s a big tech hub, cybersecurity, health IT, mobility, entertainment, you name it, cybersecurity. So establishing those relationships and making sure we understand these different platforms going forward as well as the unique challenges that come through those that are on the older end of the spectrum, and elder justice has been a big issue for us as well. But it’s establishing, again, that good communication and collaboration so that we will fairly apply the law going forward.

 

Dean Reuter:  Harold, care to weigh in here?

 

Harold Kim:  I think General Carr covered it well.

 

Dean Reuter:  Good. We've got one question left, a couple minutes left. Let’s see if we can get this in if I ask the caller to be as concise as possible. Area code 609, go right ahead, caller.

 

Caller 9:  Thanks so much. So just regarding the discussion that Harold made about the public nuisance concept, and it seems like applying that in this context, we’re talking about not so much conduct that we want to deter or that’s in any way not socially beneficial. It’s actually, I mean, to the extent that we’re talking about getting businesses back up and running, it’s socially beneficial behavior that we want to encourage and the risk of liability seems to be sort of having the effect not to deter anything but to just have business underwrite the pandemic. And so I’m wondering just if there’s an alternative way of looking at it, some sort of alternative funding mechanism might be the better way of approaching it rather than in conjunction with some safe harbors to limit that.

 

      And then the other question that I had regarding Marsha’s question about the scope of the presumption shift in workers’ comp and how that would affect independent contractors. I’m wondering whether that would be evident, not governed by workers’ comp, but just in the tort system where an independent contractor who developed COVID symptoms could say, look, there’s even a presumption here that under the comp system, that workers are exposed in this place of business to the virus and therefore it’s indicative that we can meet our causation requirement or causation burden in the tort system.

 

Dean Reuter:  I think we’ve got the gist there. We've got one minute left, so let me give each of you 30 seconds to respond to that question and express any final thought you have. Let’s go in the order we started, if you don’t mind. Attorney General Carr?

 

Christopher Carr:  Well, that’s an issue I hadn’t thought about, and I thought that was very well stated and something that I will consider. So I’ll have my answer be brief. Thank you for bringing that up.

 

Dean Reuter:  Very good. Final words from you, Harold Kim.

 

Harold Kim:  Hi, this is Harold. On the workers’ compensation point, I think you make a good point on independent contractors but also for other tort claims that could be brought if there is that type of presumption. And then you asked your first question about the funding piece of this. I would just point to the Paycheck Protection Act, which Congress authorized in two rounds as getting relief to small businesses. But the last thing you need on top of that is a bevy of litigation.

 

Dean Reuter:  Very good. Well, you guys have answered a record number of questions, I think, so I certainly appreciate it. My thanks to you personally, and on behalf of The Federalist Society, thanks for joining our call and making this meaningful. To our audience, thank you as well for joining. But until that next call, we are adjourned. Thank you very much, everyone.

 

[Music]

 

Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s Practice Groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at www.fedsoc.org.