COVID-19 Liability … Plaintiffs’ Lawyers Have Already “Begun Filing COVID-19-Related Lawsuits

COVID-19 SERIES ILR BRIEFLY ISSUE 1

COVID-19 Liability … Plaintiffs’ lawyers have already “begun filing COVID-19-related lawsuits. Limiting litigation abuse is essential to making available the tools and resources needed to combat the virus, and ultimately to spurring economic recovery …” 1 ILR BRIEFLY | April 2020 | COVID-19 Liability Litigation in the Time of COVID-19 As Americans and businesses of all sizes are working together to get through the COVID-19 health crisis, plaintiffs’ lawyers have already begun filing COVID-19-related lawsuits. Limiting litigation abuse is essential to making available the tools and resources needed to combat the virus, and ultimately to spurring economic recovery once the immediate health crisis has been resolved.

This is not to say, however, that The litigation tsunami is starting Additional ILR Briefly editions litigation is unwarranted against to form, with cases filed in will be released over the truly bad actors. But Congress, areas such as negligence, coming weeks that take a more the administration, state contract, employment, data in-depth look at some of these legislatures, and governors privacy, financial services, specific issue areas, including each have an important role to consumer protection, and those that warrant a federal play to ensure that businesses securities. Based on the current solution, common law issues, and healthcare workers can movements of the plaintiffs’ public nuisance, and focus on fighting COVID-19, bar, as well as the actions they data privacy. rather than having to defend have taken during past crises, against opportunistic, lawyer- litigation in several other areas driven lawsuits. is expected to develop.

This edition of ILR Briefly is THE FALSE CLAIMS ACT This edition also explores intended to provide a DATA PRIVACY early trial lawyer advertising summary of the current and (including virtual meetings, health trends and third party anticipated types of litigation information, and big data) litigation funding activity in arising out of the COVID-19 FINANCIAL SERVICES the context of COVID-19. pandemic, including the CONSUMER CLAIMS following categories: (including the Telephone Consumer Protection Act, false COMMON LAW advertising and deceptive marketing, (including negligence, public and price gouging) nuisance, contract claims, and product liability) SECURITIES LABOR AND EMPLOYMENT

2 Common Law Claims

NEGLIGENCE LAWSUITS These are just some of the first for desperately needed supplies The Issue: Negligence suits suits, and the prospect of of medical and health against businesses are likely to negligence litigation is cause for countermeasures by limiting their comprise a large portion of the concern for all businesses and potential exposure to negligence wave of litigation brought by services that remain open or product liability lawsuits. during the crisis, as well as for plaintiffs’ lawyers capitalizing on For example, Congress has the COVID-19 pandemic. The businesses that reopen in the future. Unfortunately, medical extended liability protections opening salvo of for the manufacturers negligence lawsuits of respirators was filed against cruise recommended by the line operators, initially [T]he prospect of negligence CDC and for volunteer targeting the much- litigation is cause for concern for healthcare providers at covered Grand “ overstressed medical Princess cruise ship all businesses and services that institutions.4 And the that was quarantined remain open during the crisis, Secretary of the off the coast of Department of Health California. The suits as well as for businesses that and Human Services include similar reopen in the future. (HHS) provided limited allegations that cruise negligence liability ships did not follow protection to those Center for Disease ” providers, such as hospitals and developing treatments and Control (CDC) guidelines or take vaccines, as well as those the precautions and safety clinics, and the healthcare workers and volunteers who administering these covered measures necessary to protect countermeasures.5 passengers from COVID-19.1 are on the front lines during the pandemic, could also be the Individual states are also taking These industry-specific lawsuits targets of negligence litigation. action. As of this writing, the are likely to continue and governors of at least ten states expand. Additionally, wrongful Some policymakers are already taking steps to address the have issued executive orders death lawsuits have been that include or clarify liability announced against nursing threat of litigation in the medical space. These measures are protections of varying scope for homes in Washington State and healthcare providers, and some Tennessee,2 and the family of a designed to allow paid and volunteer healthcare workers to of these orders also include Walmart employee recently filed 6 devote their efforts to saving protections for medical facilities. a wrongful death lawsuit against Going further, New York recently those who have contracted the company and the retail passed legislation that covers all Coronavirus and preventing its complex the specific store is healthcare providers during the further spread, rather than located in, alleging the COVID-19 emergency, worrying about future liability. defendants failed to take recognizing the strain on the Other measures are also appropriate measures to protect healthcare system that is intended to allow equipment the deceased employee from affecting the medical profession contracting the virus.3 manufacturers to answer the call

3 ILR BRIEFLY | April 2020 | COVID-19 Liability more broadly.7 Alaska8 and PUBLIC NUISANCE COVID-19 lawsuits. Plaintiffs 9 Kentucky passed legislation The Issue: In recent years, frequently argue that causation which protects healthcare plaintiffs’ attorneys have standards generally applicable providers as well as providers of attempted to expand the public to tort claims should not apply personal protective equipment nuisance theory of liability far to their public nuisance claims, (PPE). More states are likely to beyond its traditional scope but rather that the existence of address liability protections in the through lawsuits in areas like a nuisance and some nexus of coming weeks. climate change, opioids, vaping, that nuisance to the defendant is enough to establish liability.11 Look Out For: Suits against and more. It is likely that they medical providers and facilities will now attempt to use the Future COVID-19 public are likely to surge, and they will COVID-19 pandemic as a basis nuisance cases may claim that not be the only targets of the to continue expanding this businesses did not take trial bar. Plaintiffs’ lawyers will once-narrow cause of action. appropriate precautions, took look to sue any essential For example, several class these precautions too late, or businesses—including shelters, action lawsuits have been filed ended them too early, causing grocery stores, restaurants, the infection to spread. Further, mail and package delivery many recent (non-COVID-19) companies, utilities, and public nuisance suits have banks—that have remained involved contingency fee-based open and either fully or partially plaintiffs’ lawyers recruiting operational in order to serve the local—often cash-strapped— public despite the challenges municipalities to file the suits.12 presented by the ongoing crisis. Like other attempts to expand the public nuisance theory of Beyond that, there will be an liability, the spread of the virus endless stream of litigation will tax the resources of states, targets as businesses that were cities, counties, and other local closed during the pandemic government entities. Trial begin to reopen, welcome ImageImage credit:credit: TopClassActions.comTopClassActions.com attorneys will likely attempt to customers back into their transfer these costs to stores and establishments, and against the People’s Republic businesses and extract a profit offer their services once again. of China, seeking to hold the using public nuisance claims. For example, a potential batch country responsible for the of claims could include spread of COVID-19, some CONTRACT CLAIMS allegations from customers that of which include claims of The Issue: The outbreak of they contracted COVID-19 from public nuisance.10 a business and that the COVID-19 has caused establishment knew or should Look Out For: Due to the unexpected challenges for have known about the risk, that inherent difficulties associated businesses large and small, the business did not properly with proving that a business (as including having to close their clean its premises, or that it did opposed to some other source) doors to paying customers and not appropriately warn caused someone to be infected cancel events relied upon for customers of potential by COVID-19, the plaintiffs’ bar revenue. As a result, breach of Coronavirus exposure. will likely turn to public contract claims are among nuisance theories in large-scale those being asserted against businesses around the country.

4 For example, such claims were Look Out For: These types of businesses that convert their levied in a nationwide class contract-based claims can be normal operations to produce action lawsuit against 24-Hour expected to proliferate against medical supplies.18 These Fitness, alleging that gym companies operating on a paid protections allow increased members continue to be membership basis, such as production and distribution of charged their monthly gyms or clubs, and ticketed products to meet the needs of membership fee despite the single-event promoters, such the medical community, as closure of hundreds of gyms, as music or sporting events.16 illustrated by the increased even thought the company had output of respirators.19 announced it was going to PRODUCT LIABILITY Look Out For: Product liability cease billing members during The Issue: As a result of well- the quarantine, award members claims are a real possibility for founded health fears, companies that manufacture, time to compensate for lost consumers, health practitioners, usage once it re-opened, and sell, or distribute medical or first responders, and others are other supplies to diagnose, provide virtual content (normally looking to a variety of products subscription-based) for free.13 treat, detect or protect against to protect themselves. These COVID-19 if that product And at least one university is in range from once-commonplace the class action crosshairs for allegedly malfunctions or is hand sanitizer and disinfecting not effective. Furthermore, allegedly not refunding room household products to more and board expenses to preexisting liability protections advanced personal protective such as those provided by the students after the campus was and healthcare equipment. The closed due to COVID-19.14 2005 Public Readiness and threat of lawsuits against the Emergency Preparedness Additionally, just three (PREP) Act20 or the days after the U.S. CARES Act only cover Department of certain specified Transportation [P]laintiffs’ lawyers will surely categories and types mandated on April 3 seek“ to divert the legal analysis of products. that airlines fully refund away from the risk that was known passengers who wish Regardless of where a to cancel their flights in or foreseeable when the product product may fall on this spectrum of light of the COVID-19 was initially marketed (long before outbreak, two class accessibility and action lawsuits were COVID-19 was on the scene). importance, suits will filed alleging that likely emerge alleging United Airlines was not ” that the claimed complying with the directive. manufacturers of these critically benefits of the products are The suits were filed in the U.S. needed products is what exaggerated or false. And District Court for the Northern prompted Congress to include plaintiffs’ lawyers will surely District of Illinois and claim that respirator protections in the seek to divert the legal analysis the airline changed its Coronavirus Aid, Relief, and away from the risk that was cancellation policies Economic Security (CARES) known or foreseeable when the 17 multiple times but still is not Act. It also drove Kentucky to product was initially marketed providing cash refunds for extend an affirmative defense (long before COVID-19 was on canceled flights.15 in product liability suits to the scene).

5 ILR BRIEFLY | April 2020 | COVID-19 Liability Labor and Employment

The Issue: COVID-19 raises a that employers comply with industries who are infected host of issues for employers procedural requirements, with Coronovirus caught the and employees, including including notice to employees, virus in the workplace.27 This matters involving leave policy, in the event of layoffs. California may have implications in civil travel restrictions and telework Governor Gavin Newsom litigation, such as lawsuits from protocols, and the health and issued an executive order on customers, as plaintiffs' safety of employees that March 17, 2020 that suspended lawyers look to take advantage remain on the job during this some requirements under of the presumption. tumultuous time. California’s version of the WARN Act, and ordered the Look Out For: Suits will likely Labor-related class action state’s labor agency to issue increasingly be filed against lawsuits have already been guidance on the suspension.26 essential businesses that filed, including a lawsuit against Similar suspensions in other continue to operate during the a cruise line for failing to protect states and at the federal level pandemic, and businesses that employees on its ships.21 And reopen in the future will face the Allied Pilots similar litigation. The Association filed a limited supply of PPE suit against or lack of training in the American Airlines State governors, regulators, use of this equipment that would stop “and legislatures have also may be one basis for service to China in these suits. Workers' the interest of begun instituting workers’ compensation issues employee and compensation presumptions, dealing with shortages passenger safety.22 of PPE or incorrect use Cases have also which may present ongoing of this equipment are been filed by also likely. The trial bar employees claiming liability risks for businesses. is actively encouraging they were lawsuits against terminated after ” employers as an would protect businesses that expressing concerns about are facing extraordinary alternative to workers' employers’ preparedness and financial difficultly due to the compensation for those who are precautions to prevent the global pandemic. ineligible, such as independent spread of COVID-19.23 contractors.28 Expansion of State governors, regulators, and traditional workers' Other sources of liability are legislatures have also begun compensation issues will likely suits against employers based instituting workers' be worsened by presumptions on layoffs occurring due to compensation presumptions, such as the one in Illinois. These business shutdowns and lack of which may present ongoing suits will continue through the demand for goods and liability risks for businesses. For apex of the pandemic, and 24 services. The federal Worker example, the Illinois Workers' employers will likely be at risk Adjustment and Retraining and Compensation Commission has based on their decisions to 25 Notification (WARN) Act and created a presumption that reopen their businesses. many similar state laws require employees in essential

6 False Claims Act

The Issue: The federal False to respond to the financial crisis: The SBA should take these Claims Act (FCA) was originally the government and private concerns into consideration and passed during the American Civil whistleblowers filed nearly 4,000 enter into a memorandum of War to prevent defense FCA cases.31 This risk is mirrored understanding with the contractors from defrauding the in states that have their own Department of Justice (DOJ) to government, and the FCA is FCA statutes.32 implement its hold harmless being highlighted as a weapon protections and define the against fraud in this time of Look Out For: Plaintiffs’ lawyers conditions under which FCA crisis.29 However, beyond are waiting to bring FCA suits litigation would be appropriate addressing genuine cases of against any financial service under the CARES Act.35 FCA fraud, plaintiffs’ lawyers will providers who approve loans that suits based on allegations from target businesses with frivolous are not used for the purposes whistleblowers in cybersecurity or speculative FCA claims in approved by the CARES Act or or healthcare are also likely.36 order to turn a profit. for loans made to businesses not Groups such as the National qualified to received them. While Whistleblower Center are calling For example, under the CARES the Small Business on DOJ to create a “Task Force Act, financial services providers Administration (SBA) has put in to Combat Coronavirus-Related are the critical conduit for the place “hold harmless” language Fraud” and to prioritize FCA federal loans and loan guarantees for lenders in its regulations enforcement and qui tam made available to small implementing the CARES Act (whistleblower) actions.37 The 30 businesses by that statute. loan Paycheck Protection DOJ has already established a 33 Unfortunately, history teaches us Program, more should be done National Nursing Home initiative that as businesses begin to to implement this protection. If to address substandard care and make use of the financial not, the process of getting critical abuses at nursing homes, which assistance provided by the financial relief to small will likely utilize the FCA.38 Any government, FCA investigations businesses will be significantly action taken by DOJ and other and litigation are sure to follow. delayed as lenders focus on regulatory agencies in this 34 Consider what occurred in the mitigating litigation risks. context will surely lead to four years after 2009, when follow-on trial lawyer claims Congress passed stimulus bills against businesses. Federal Qui Tam False 800 Claims Act Filings 2008–2018 Civil Division, U.S. Department of Justice 700 600 500 400 300 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018

7 ILR BRIEFLY | April 2020 | COVID-19 Liability Data Privacy

VIRTUAL MEETINGS Virtual platforms are being used breach by a criminal or other The Issue: In the new reality of for children’s education, bad actor taking advantage of social distancing, business and teleworking, and telehealth. the expanded online universe, school closures, and They are also being used to with increased scrutiny on the widespread teleworking, issues supplant in-person social security protocols and practices of privacy and data security will gatherings, including virtual the entity had in place at the emerge. These concerns happy hours, TV show viewing time of the breach. largely stem from the increased parties, and fitness classes. HEALTH INFORMATION use and security of online Look Out For: These services are platforms as massive portions at a heightened risk of being The Issue: Employers are of the workforce turn to sued while they are especially at risk for privacy working remotely. lawsuits, as the Americans with Online voice and Disabilities Act (ADA) video conferencing Lawsuits will likely focus on and the Health services have Insurance Portability become a lifeline for “the privacy practices of these and Accountability many businesses and platforms, including how and to Act (HIPAA) require schools attempting to employers to adhere continue their what extent they collect, use, to certain privacy operations. As a share, and/or sell user provisions when result, providers of designing workplace online video information and what privacy policies related to conferencing services COVID-19.41 These have seen their usage policies and commitments they statutes limit the rates increase health information 39 have made to users. dramatically. that employers can Unfortunately, the request from their litigation risk they ” employees and how they may experiencing unprecedented face has also dramatically share that health information increased. For example, a data volume generated by social distancing requirements. with others. The CDC has also privacy class action lawsuit has issued guidance providing that been filed against Zoom, a Lawsuits will likely focus on the privacy practices of these “If an employee is confirmed to provider of online video have COVID-19, employers conferencing services.40 The platforms, including how and to what extent they collect, use, should inform fellow employees suit alleges that Zoom failed to of their possible exposure … protect users’ personal share, and/or sell user information and what privacy but maintain confidentiality” as information, allowing targeted 42 policies and commitments they required by the ADA. HHS ads and the sending of personal has also issued a bulletin that have made to users. information to third parties. offers employers guidance Additionally, litigation will ensue regarding the disclosure of if these entities suffer a data

8 protected health information professionals have turned to raised both about the during a public health crisis, “big data” to help fight the accessibility of this service and including which disclosures COVID-19 pandemic. And Google’s use of the information require individual authorization Congress recently authorized it collects.46 Another company and which do not (such as to the CDC to develop modern is producing “smart the CDC or other public data surveillance and analytics thermometers” for the purpose health authority).43 systems to track COVID-19 of tracking and curbing the more effectively and reduce its spread of infectious illnesses Look Out For: Employer spread.44 Recent media reports through the company’s app and obligations are an especially reveal that data is being used opt-in location tracking.47 Apple gray area until HHS issues by the mobile advertising and Google are working on a guidance on the sharing of industry and technology joint program for COVID-related personal health information, as companies in the U.S. to track contact tracing.48 Privacy risks required by Section 3225 of the the effectiveness of social and alleged violations will CARES Act. At that point, distancing, as well as the certainly be explored by the lawsuits can be expected that spread of the virus through plaintiffs’ bar, including how measure entities up against the the collection of consumer consumer data is anonymized, guidance, as well as their location data.45 how consumers are notified obligations under the ADA about the collection of their and HIPAA. Look Out For: As telehealth and location or other information, non-conventional health their ability to control or opt out BIG DATA services are launched and of data collection, and to what The Issue: As pointed out during used, data privacy and security extent this information is the Senate Commerce lawsuits are likely close behind. publicly disclosed. Committee’s April 9, 2020 Google is developing a hearing entitled, “Enlisting Big screening website to help Data in the Fight Against determine whether users Coronavirus,” government qualify for COVID-19 testing, officials and healthcare and concerns are already being

ARBITRATION also views arbitration clauses as arbitration agreements in disputes an impediment to class action related to the suspension of UNDER ATTACK litigation. Accordingly, they are consumer and small business loans, Arbitration provides dispute seeking to leverage the COVID-19 employees’ sick leave, and public resolution solutions to employees pandemic as a way to weaken the health emergency leave. and consumers that are often faster enforceability of arbitration clauses This is part of the trial bar’s strategy and cheaper than time-consuming in various contexts. of chipping away at arbitration’s 88 and expensive litigation. For example, in recent unsuccessful availability in order to increase Because this tool reduces federal bills dealing with COVID-19, litigation. Policymakers should litigation, plaintiffs’ lawyers are such as H.R. 637989 and S. 3513,90 watch out for future attempts to using every opportunity to try plaintiffs’ bar allies in Congress prohibit or weaken arbitration to ban pre-dispute arbitration included anti-arbitration provisions agreements in other COVID-19 agreements. The plaintiffs’ bar that would have invalidated related bills.

9 ILR BRIEFLY | April 2020 | COVID-19 Liability Financial Services

The Issue: Congress has quickly goals to expand liability for services matters, have already passed a series of much-needed companies will look to the courts sent warning signs that they are legislation to address various and attempt to make policy keeping a close eye on financial immediate threats posed by the through litigation rather than and lending institutions during COVID-19 pandemic, but the through the more appropriate the COVID-19 pandemic. emergent need for Coronavirus legislative process. Recently, Arizona AG Mark legislation has presented an Brnovich sent a letter to over opportunity for plaintiffs’ bar Foreclosure and student loan 1,000 financial institutions doing allies to attempt to expand protections were included in the business in his state requesting 51 corporate liability. Lawsuits have recent CARES Act, but financial they suspend foreclosures, been filed against several banks, services institutions may be repossessions, and evictions for including Bank of subject to lawsuits alleging at least 90 days.52 AG America and Wells Brnovich also asked Fargo, regarding their credit card companies decision related to the [C]ompanies should be on and other lending CARES Act Paycheck institutions to waive Protection Program to “the lookout for the trial bar late fees and default only accept loan interest for applications from engaging with state AGs to bring late payments. existing customers.49 contingency fee-based state A Maryland district While this measure is court judge ruled in consumer protection act lawsuits far from an investigation or favor of Bank of against financial services America on April 13, enforcement action, 2020, finding that the companies for otherwise companies should be CARES Act does not on the lookout for the contain a private right standard business activity trial bar engaging with of action or any during this crisis. state AGs to prohibitions against bring contingency additional applicant fee-based state 50 ” consumer protection eligibility requirements. they implemented these act lawsuits against financial Look Out For: Additional litigation protections incorrectly or that services companies for against financial services following these federal guidelines otherwise standard business providers involving rent, was not enough. activity during this crisis. mortgage, or other loan disputes is likely to continue. Trial lawyers In addition, some state attorneys who are unable to achieve policy general (AGs), a group often active in consumer financial

10 Consumer Claims EXCERPT: FCC DECLARATORY TELEPHONE CONSUMER companies that communicate RULING PROTECTION ACT information about supply “… With this Declaratory The Issue: Class action lawsuits availability, closures, service Ruling, we ensure that under the Telephone Consumer limitations, reduced hours, and public health authorities can Protection Act (TCPA) are often the availability of remote access. efficiently and effectively brought against companies The FCC has received a petition communicate vital health alleging that consumers for an additional declaratory and safety information to the received automated calls or ruling extending the application American people. Specifically, texts without first providing of the FCC’s original TCPA we confirm that the COVID-19 56 their consent to receive these emergency declaration. pandemic constitutes an communications. The TCPA Without this protection for ‘emergency’ under the contains an exception that businesses, consumers will not Telephone Consumer allows these types of be provided with important Protection Act (TCPA) and automated contacts in information due to the that consequently hospitals, emergency situations uncertainty of facing rampant healthcare providers, state “affecting the health and safety class action lawsuits. The “Top and local health officials, and 53 of consumers.” The Federal Class Actions” website is other government officials Communications Commission already searching for plaintiffs may lawfully communicate (FCC) issued a declaratory to file a class action lawsuit information about the ruling on March 20, 2020 that based on COVID-19 novel coronavirus as well as confirms “the COVID-19 communications in the wake mitigation measures without 91 pandemic constitutes an of the FCC’s limited ruling.57 violating federal law.” ‘emergency’ under the Telephone Consumer Protection Act.”54 Look Out For: The FCC declaratory ruling limits the “emergency” exception to hospitals, healthcare providers, health officials, or government officials.55 However, other important communications from many businesses are not protected, depriving consumers of critical information in these uncertain times. Unless the exemption is appropriately extended so that consumers can receive information about COVID-19 that companies send in good faith, the aggressive Image credit: TopClassActions.com TCPA bar will have its sights on

11 ILR BRIEFLY | April 2020 | COVID-19 Liability FALSE ADVERTISING AND misled consumers by misleading claims (especially DECEPTIVE MARKETING advertising that their ice cream health-related claims) 60 62 The Issue: In the area of false comes from happy cows. associated with the pandemic. advertising and deceptive Using the same playbook, plaintiffs’ attorneys are likely Many, if not all, of these early marketing claims, COVID-related enforcement activities by state lawsuits have already been rolling to continue to bring lawsuits against companies for their and federal authorities are in. Several class actions have justified takedowns of been filed against companies advertising and marketing relating to the use of everyday scammers and fraudsters that manufacture or sell hand looking to use advertising sanitizer claiming that the products in the context of the COVID-19 pandemic. schemes to take advantage suggestions that hand sanitizer of the pandemic. Companies products prevent disease or State and federal consumer should be mindful, though, that 58 reduce illness are unfounded. A protection enforcers are also the plaintiffs’ bar will likely be California woman recently filed a making COVID-19 advertising active in encouraging class action lawsuit against and marketing issues a major contingency fee lawsuits and Target, alleging that the retailer is follow-on litigation misleading its against traditional customers with false companies with advertising about its [P]laintiffs’ attorneys are deeper pockets to hand sanitizer. The test the limits of likely to continue to bring lawsuits lawsuit, filed in the “ liability expansion. U.S. District Court for against companies for their the Central District of PRICE GOUGING California, seeks to advertising and marketing The Issue: Charging stop the retailer “from relating to the use of everyday inflated prices for engaging in deceptive products in the context of the much-needed supplies advertising and during this crisis is a business practices COVID-19 pandemic. problem that many concerning false and lawmakers and misleading promotion ” businesses are of its hand sanitizer that purports priority. The Federal Trade working together to prevent and to eliminate 99.9% of germs.”59 Commission (FTC) and Food remedy. State AGs, the The lawsuit alleges negligent and Drug Administration (FDA) Department of Justice, the FTC, misrepresentation, violations of issued seven joint warning and others are all working to California’s Business and letters to companies “allegedly address price gouging. Professions Code, intentional selling unapproved products misrepresentation, and violations that may violate federal law by In Florida, a class action lawsuit of the California Civil Code. making deceptive or has already been filed against Amazon for allegedly raising Look Out For: Plaintiffs’ attorneys scientifically unsupported prices to profit from the health have been filing weak false claims about their ability to treat 61 crisis.63 In contrast, Florida AG advertising and deceptive Coronavirus (COVID-19).” Ashley Moody and Missouri AG marketing lawsuits against food State AGs around the country Eric Schmitt are working with manufacturers for years, have also been particularly Amazon to review consumer including one against Ben & vigilant in going after what concerns, remove price Jerry’s alleging the company they believe to be false or

12 gouging product postings, and critical supplies.” The letter Look Out For: Despite these best issue refunds.64 Other noted that the AGs “believe [the efforts from the vast majority of companies are also taking companies] have an ethical the business community, steps, such as creating hotlines obligation and duty to help [their] plaintiffs’ lawyers and releasing pricing fellow citizens in this time of will continue to file lawsuits information, to address price need by doing everything in against companies whose gouging on their platforms or [their] power to stop price products are being sold at involving their products. gouging in real-time.”65 Nearly increased prices or whose all the companies responded platforms host third party In late March, 33 state AGs sent immediately, noting that they sellers that allegedly engage in warning letters to the CEOs of regularly monitor and address price gouging. Additionally, Amazon, Walmart, eBay, attempts to price gouge and price gouging will likely Facebook, and Craigslist saying have zero-tolerance policies continue to be the primary that the companies’ efforts to towards such activities.66 focus of state AGs during this date to crack down on crisis. Enforcement actions—as overpriced items on their selling well as follow-on private platforms have “failed to lawsuits—are expected. remove unconscionably priced

Securities

The Issue: The trend of event- Securities lawsuits have Look Out For: This trend is driven securities lawsuits has already been filed related to expected to continue with continued, with claims being the COVID-19 outbreak. The suit plaintiffs filing event-driven filed after adverse events, such against Inovio Pharmaceuticals securities claims that allege as an environmental disaster or a alleges that the company falsely companies failed to disclose lawsuit filed against the claimed it had developed a or downplayed a risk that then company. Legal experts have vaccine for the virus.68 caused their stock to drop when questioned the merit of these Norwegian Cruise Lines the negative event occurred. event-driven claims, but because allegedly offered positive Businesses with direct links to of reputational harm from outlooks for the company in COVID-19, like pharmaceutical ongoing litigation and the cost of February 2020, despite the and biotechnology companies defense, businesses face heavy COVID-19 outbreak, leading working on vaccines and pressure to settle. An increase in to the securities action.69 A countermeasures to combat the securities suits was seen after securities suit has also been virus, and those hardest hit the 2008 financial crisis,67 and filed against Zoom, based on economically during the crisis, trial lawyers are expected to privacy litigation filed against such as companies in the respond to the COVID-19 them that was tied closely hospitality and travel industries, pandemic in the same way, to the increased use and are likely going to be significant by increasing litigation. scrutiny of video conferencing targets for speculative services as a result of social securities litigation. distancing requirements.70

13 ILR BRIEFLY | April 2020 | COVID-19 Liability The Litigation Machine and COVID-19

TRIAL LAWYER ADVERTISING The first broadcast ads quickly Plaintiffs’ lawyers responded followed. Among the first immediately to COVID-19 the television ads include nursing same way that many home lawsuit ads in Tennessee 71 businesses did: by letting their from The Kelly Firm, Ohio customer base know that they from the Anzellotti, Sperling, 72 were still open for business, Pazol & Small firm, and were able to meet with them insurance claims ads in Miami 73 remotely, and would continue from the Landau Law Group. to represent them during this Image credit: Sanders Phillips Grossman, LLC Lawsuit marketing firms also difficult time. However, the jumped at the opportunity to tenor of those ads quickly take advantage of a uniquely changed as trial lawyers across captive audience. The CEO of the country began posting one major lawsuit marketing blogs, client advisories and operation put out a video client related content discussing how alert noting that “from a those impacted by COVID-19 marketing perspective, we can build lawsuits against couldn’t have a more ideal potential defendants. situation with people at home Not surprisingly, COVID-19 ads watching TV.” He noted in his began online, with firms address that because of some suggesting that those who advertising cancellations relating become infected or whose to travel and other affected family member(s) become industries, prices for ad buys 74 infected should contact an are extraordinarily low. attorney, including if they were These firms have also made infected at work, on a cruise Image credit: Law Offices of Lee Steinberg, P.C. clear to their trial lawyer clients ship, or at a nursing home. that they are well equipped to include COVID-19 content and graphics into their ad spots. In fact, the firm is currently The CEO of one major lawsuit “testing messaging that’s [sic] marketing“ operation put out a video relevant to the COVID virus,” incorporating Coronavirus- client alert noting that ‘from a related language into its ad marketing perspective, we couldn’t campaigns and noting a major spike in the value have a more ideal situation with of the key search term “coronavirus lawyer.”75 people at home watching TV.’ ”

14 touting their financial offerings to know how many COVID-19 in full anticipation of the volume related lawsuits they have of litigation that will flow from funded or will fund. But it is COVID-19-related economic clear that they expect the volatility. Funding has pandemic will be good for their traditionally been used for bottom lines. The funders will plaintiffs’ cases, but during this benefit not only from the wave economic crisis, funders are of cases filed, but also from the branching out and marketing delays caused by court closures their services to defense-side and docket backlogs. Image credit: ConsidertheConsumer.com law firms that may be facing Burford Capital and Omni financial challenges.79 Indeed, one of the country’s largest Bridgeway (formerly IMF funders, Burford Capital, Bentham), two of the world’s published a blog claiming that largest litigation funders, are “whenever there is increasing telling investors in Australia that economic volatility, there is the delays due to COVID-19 greater propensity for could boost returns. The CEO Image credit: Gibbs Law Group LLP companies to litigate. Enter of Omni Bridgeway reported that “contracts commonly legal finance[.]”80 Plaintiffs’ firms are continuing to return twice their investment recruit plaintiffs for suits against The third party litigation funding within 12 months, three times 76 cruise lines. Websites and industry has been growing the investment between 12 and claim aggregators are also exponentially. By betting on 24 months, and four times the soliciting clients for nursing home lawsuits, these funders drive investment between 24 to 36 cases. Sites advertise months.”82 The by stating that “[a]s funder also boasted the disease reached The funder also boasted that that its share prices U.S. soil, nursing went up during homes became hot its“ share prices went up during previous outbreaks, spots for the virus’s such as SARS and 77 previous outbreaks, such as spread” and that 83 SARS and Swine Flu. Omni Swine Flu. Omni they “will seek and Bridgeway’s U.S. obtain physical and Bridgeway’s U.S. chief investment chief investment emotional pain and officer recently characterized officer recently suffering, medical, characterized and, if appropriate, business in recent weeks as business in wrongful death recent weeks as 78 ‘drinking from a fire hose.’ damages.” “drinking from a fire hose.”84 THIRD PARTY ” unnecessary litigation and reap LITIGATION FUNDING a huge profit.81 Their funding Making matters worse, third agreements are not revealed in party litigation funders are court; therefore, it is impossible

15 ILR BRIEFLY | April 2020 | COVID-19 Liability Conclusion The COVID-19 pandemic is not the first crisis that plaintiffs’ lawyers have worked to exploit, but it is the largest economic and public health crisis that has been faced by the United States in the last century. Similar crises in past years, whether from man-made or natural disasters, have engendered a rush of litigation that harms both recovery and future efforts to prepare for national emergencies. However, these past experiences have also provided us with knowledge and tools that we can use and improve upon to address the challenges we currently face.

When widespread technological four months before the PREP medical countermeasures, malfunctions were expected Act was passed, and legislators and Congress has since due to the Y2K changeover, were worried about the country’s added certain COVID-19 Congress knew that the ability to respond to any disasters countermeasures that are eligible plaintiffs’ lawyers would follow or outbreaks that might occur in for PREP Act protection.87 with opportunistic lawsuits. the future. The PREP Act Nevertheless, the COVID-related The Y2K Act was passed on a enables the Secretary of HHS to litigation tsunami is forming, and bipartisan basis, placing a three- issue a declaration providing leaders and policymakers must year ban on most lawsuits in limited immunity from liability to provide shelter against the wave. state and federal courts over entities and individuals for Now is the time to build upon economic losses associated countermeasures they the work that has already been with these glitches.85 manufacture or employ against done and lessons learned public health emergencies. Then, in 2005, the PREP Act from past challenges to rise The Secretary of HHS used this was passed.86 Hurricane Katrina to the challenge of fighting authority under the PREP Act at had hit the southern United COVID-19 and facilitating the the start of the COVID-19 crisis States in August that year, just economic recovery. to limit liability related to certain

16 The COVID-related litigation “tsunami is forming, and leaders and policymakers must provide shelter against the wave. ”

17 ILR BRIEFLY | April 2020 | COVID-19 Liability Endnotes 1 Joyce Hanson, Princess Cruise Lines Hit by Wave com/pdf/TonyLetter.pdf; 24 Hour Fitness Launches of COVID-19 Suits, Law360 (Mar. 17, 2020); Craig New 24/7 Live At-Home Streaming Channel, Business Clough, Suit Faults Carnival Unit For ‘Ticking Wire (Mar. 30, 2020). Coronavirus Time Bomb’, Law360 (Apr. 7, 2020); 14 Rosenkrantz v. Arizona Board of Regents, 2:20-cv- Amanda Bronstad, Lieff Cabraser Files First Class 00613 (D. Ariz.). Action Over Quarantined Grand Princess Cruise Ship, The Recorder (Apr. 8, 2020). 15 Gio Benitez, Mina Kaji, & Amanda Maile, As flights are canceled amid coronavirus, officer sues United Airlines 2 Nick Beres, Lawsuit to be filed against Gallatin nursing for refund, ABC News (Apr. 7, 2020). home over alleged mishandling of coronavirus, News Channel 5 Nashville (Apr.6, 2020); Tim Reid, Seattle- 16 See, e.g., McMillan v. Stubhub, 3:20-cv-00319 (W.D. area nursing home hit with wrongful death lawsuit Wis.); ACE Universe Inc. v. GrowTix LLC, 1:20-cv- over coronavirus death, Reuters (Apr. 10, 2020). 02517 (S.D.N.Y). 3 Daniel Wiessner, Estate of Walmart worker who died 17 CARES Act, H.R. 748, 116th Cong. §§ 3103, 3215 from COVID-19 sues for wrongful death, Reuters (Apr. (2020). 7, 2020). 18 Kentucky SB 150, §1(10)(2020). 4 CARES Act, H.R. 748, 116th Cong. §§ 3103, 3215 19 Jeanne Whalen, Rosalind S. Helderman, & Tom (2020). Hamburger, Inside America’s mask crunch: A slow 5 85 FR 15198 (Mar. 17, 2020). government reaction and an industry wary of liability, The Washington Post (April 2, 2020). 6 Arizona Executive Order No. 2020-27 (Mar. 11, 2020); Arkansas Executive Order No. 18 (Apr. 14, 2020). 20 Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of 7 Arkansas Executive Order No. 20-18 (Apr. 14, 2020); Mexico, and Pandemic Influenza Act 2006, H.R. 2863, Connecticut Executive Order No. 7V (Apr. 7, 2020); 109th Cong., §§ 1-3 (2005). Georgia Executive Order No. 04.14.20.01 (Apr. 14, 2020); Illinois Executive Order No. 19 (Apr. 1, 2020); 21 Nedeltcheva, et al. v. Celebrity Cruises, Inc., Indiana Executive Order No. 13 (Mar. 6, 2020); No. 1:20-cv-21569 (S.D.Fla.). Michigan Executive Order No. 30 (2020); New Jersey 22 Jake Harris, Pilots’ union sues American Airlines Executive Order No. 112 (Apr. 1, 2020); New York to stop flights to China amid coronavirus outbreak, Executive Order No. 202.10 (Mar. 23, 2020); North WFAA 8 ABC (Jan. 30, 2020). Carolina Executive Order No. 130 (Apr. 8, 2020). 23 See, e.g., Andrew Wolfson, 2 workers say their 8 New York Budget Bill S07506, Art. 30-D (2020). COVID-19 fears were ‘brushed off.’ Then they were 9 Alaska SB 241; Kentucky SB 150. fired. So, they sued, Louisville Courier Journal (Mar. 28, 2020). 10 Alters v. People’s Republic of China, No. 1:20-cv- 21108 (S.D. Fla.); Bella Vista LLC v. The People’s 24 Scott, et al. v. Hooters III Inc., No. 8:20-cv-882 Republic of China, No. 2:20-cv-00574 (D. Nev.); Buzz (M.D.Fla.). Photo v. People’s Republic of China, No. 3:20-cv- 25 The Worker Adjustment and Retraining Notification 00656 (N.D. Tex.). Act, 29 U.S.C. §§ 2101-2109 (1988). 11 Joshua K. Payne & Jess R. Nix, Waking the 26 Kelly Hensley & Michael Campbell, California Issues Litigation Monster: The Misuse of Public Nuisance, Guidance on Conditional Suspension of California U.S. Chamber Institute for Legal Reform, 28 (Mar. WARN Act Notice Requirements, Sheppard Mullin 2019). Labor & Employment Law Blog (Mar. 24, 2020). 12 Rob McKenna, Elbert Lin, & Drew Ketterer, Mitigating Municipality Litigation: Scope and Solutions, U.S. Chamber Institute for Legal Reform, 4 (Mar. 2019). 13 Labib v. 24 Hour Fitness USA, Inc., 3:20-cv-02134 (N.D. Cal.); Letter from 24-Hour Fitness CEO Tony Ueber (Mar. 17, 2020), https://www.24hourfitness.

18 27 lllinois Workers’ Compensation Commission 42 CDC Interim Guidance for Businesses and Employers Notice of Emergency Amendment (April 13, to Plan and Respond to Coronavirus Disease 2019 2020), https://www2.illinois.gov/sites/iwcc/news/ (COVID-19), https://www.cdc.gov/coronavirus/2019- Documents/13APR20-Emergency_Amendment_Only- ncov/community/guidance-business-response.html 50IAC9030_70.pdf. (last viewed on Apr. 9, 2020). 28 jfabian, Does Workers’ Compensation Cover 43 Department of Health and Human Services, COVID-19 Coronavirus (COVID-19)?, Work Injury Source (Mar. 14, & HIPAA Bulletin: Limited Waiver of HIPAA Sanctions 2020). and Penalties During a Nationwide Public Health Emergency, https://www.hhs.gov/sites/default/files/ 29 Scott Heimburg, et al., Reducing False Claims Act hipaa-and-covid-19-limited-hipaa-waiver-bulletin-508. Exposure in the Aftermath of COVID-19 Legislation, pdf (last viewed on Apr. 9, 2020). JD Supra (Apr. 3, 2020). 44 Senate Committee on Commerce, Science and 30 CARES Act, supra, §1102. Transportation, “Enlisting Big Data in the Fight Against 31 Jessia Ortiz & Caleb Hayes-Deats, False Claims Act Coronavirus” (Apr. 9, 2020). Litigation Will Follow the Stimulus Package. Here’s 45 Geoffrey A. Fowler,Smartphone data reveal which How to Avoid It, Law.com (Apr. 5, 2020). American are social distancing (and not), Washington 32 Jonathan Diesenhaus, The Great Myths of State False Post, (Mar. 24, 2020). Claims Acts, U.S. Chamber Institute for Legal Reform 46 Jessica Davis, Sens. Flag Privacy, Security Concerns (Feb. 2018). Over Google COVID-19 Screening Site, Health IT 33 PPP Interim Final Rule, SBA-2020-0015 (Apr. 2, 2020), Security (Mar. 19, 2020). https://www.sba.gov/document/policy-guidance-ppp- 47 Kinsa, Proud to announce 2 new initiatives to help interim-final-rule. improve our country’s ability to detect outbreaks and 34 Editorial Board, Congress’s Small-Business Ventilator, stop the spread of illness, https://www.kinsahealth.co/ Wall Street Journal (Apr. 6, 2020). (last visited Apr. 10, 2020). 35 Press Release, ILR and U.S. Chamber Submit 48 Matthew Panzarino, Apple and Google are launching a Comments to SBA on PPP, U.S. Chamber Institute for joing COVID-19 tracing tool for iOS and Android, Tech Legal Reform (Apr. 8, 2020). Crunch (Apr. 10, 2020). 36 Dallas Hammer, Cybersecurity Whistleblower 49 Profiles, Inc. v. Bank of America Corp., No. 1:20-cv- Protections for Employees of Federal Contractors and 00894 (D. Md.); Scherer v. Frost Bank, No. 4:20-cv- Grantees, The National Law Review (Apr. 8, 2020); 01297 (S.D. Tex.); Scherer v. Wells Fargo Bank, N.A., Scott Heimberg, et al., Reducing False Claims Act No. 4:20-cv-01295 (S.D. Tex.). Exposure in the Aftermath of COVID-19 Legislation, 50 Jon Hill, Battle over BofA’s Virus Relief Biz Lending JD Supra (Apr. 3, 2020). Heads for Appeal, Law360 (Apr. 15, 2020). 37 Letter from the John Kostyack, Executive Director, 51 CARES Act, supra at §§ 4022, 3513. National Whistleblower Center, to William P. Barr, Attorney General of the United State (Mar. 52 Letter from Arizona Attorney General Mark Brnovich to 20, 2020), https://www.whistleblowers.org/wp- “Financial and Lending Institutions Serving Arizonans” content/uploads/2020/03/NWC-Letter-to-DOJ-AG- (Mar. 19, 2020), https://twitter.com/GeneralBrnovich/ Barr-3-20-20.pdf. status/1240779517800509440/photo/1. 38 Todd Yoder, DOJ Announces Initiative to Combat 53 47 CFR § 64.1200(f)(4). Substandard Care in Nursing Homes; Emphasizes 54 Declaratory Ruling, Rules and Regulations Implementing Importance of Whistleblowers, The National Law the Telephone Consumer Protection Act of 1991, CG Review (Mar. 10, 2020). Docket No. 02-278, at 1 (Mar. 20, 2020), https://docs.fcc. 39 Rupert Neate, Zoom booms as demand for video- gov/public/attachments/DA-20-318A1.pdf. conferencing tech grows, The Guardian (Mar. 31, 2020). 55 Id. 40 Cullen v. Zoom Video Communications, Inc., 5:20-cv- 02155 (N.D. Cal.). 41 COVID-19 Client Primer, Shook Hardy & Bacon (Mar. 2020).

19 ILR BRIEFLY | April 2020 | COVID-19 Liability 56 ABA , Trades Urge FCC to Facilitate COVID-19-Related 67 Cornerstone Research, Securities Class Action Filings Calls, American Bankers Association (Mar. 30, 2020), – 2008: A Year In Review 2 (2009), https://www. https://www.aba.com/advocacy/policy-analysis/aba- cornerstone.com/Publications/Reports/Securities- trades-urge-fcc-to-facilitate-covid-19-related-calls; Class-Action-Filings-2008-A-Year-in-Re.pdf. Letter from Harold Kim, President, U.S. Chamber 68 Patrick McDermid v. Inovio Pharmaceuticals, Inc., No. Institute for Legal Reform, and Tom Quaadman, 20-CV-01402 (E.D. Pa.), complaint available at http:// Executive Vice President, U.S. Chamber CCMC, C_ securities.stanford.edu/filings-case.html?id=107344. TEC, to Marlene H. Dortch, Sec’y, FCC (Apr. 8, 2020), https://www.instituteforlegalreform.com/uploads/ 69 Eric Douglas v. Norwegian Cruise Lines, No. 20-CV- sites/1/ILR_CCMC_CTEC_Comments_in_Support_of_ 21107 (S.D. Fla.). TCPA_Emergency_Relief_Petition_COVID-19.pdf. 70 Peter Blumberg, Zoom Sued for Fraud Over Privacy, 57 Coronavirus Robocalls, Text Messages, Pre-recorded Security Flaws, Bloomberg (Apr. 8, 2020). Messages Class Action Lawsuit Investigation, Top 71 Kelly Law Firm (2020). Nashville: WTVF [CBS]. Aired Class Actions (Apr. 1, 2020), https://topclassactions. Apr. 3, 2020, 5:58AM. com/coronavirus-covid-19/coronavirus-robocalls-text- messages-prerecorded-messages. 72 Anzellotti, Sperling, Pazol & Small (2020). Youngstown: WYTV [ABC]. Aired Apr.8, 2020, 6:09AM. 58 Manal Alesia v. Gojo Industries, Inc. D/B/A Purell (C.D.Cal.); Miller v. Gojo Industries, Inc. 73 Landau Law Firm (2020). Miami: WSVN [FOX]. Aired D/B/A Purell (N.D. Ohio). Apr. 7, 2020, 5:13AM. 59 Charmaine Little, Lawsuit claims Target made 74 Steve Nober Makes Sense Out of the Current Covid misleading statements about hand sanitizer’s Media Landscape, Consumer Attorney Marketing capabilities, Legal Newsline (Apr. 8, 2020). Group (Apr. 2, 2020), https://www.camginc.com/ covid-19/. 60 Jonathan Stempel, Ben & Jerry’s is sued over ‘happy cows’ claim, Reuters (Nov. 8, 2019). 75 Id. 61 Press Release, FTC, FDA Send Warning Letters to 76 Keller Rohrback, Did a Princess Cruise put you at Seven Companies about Unsupported Claims that risk of contracting COVID-19?, https://krcomplexlit. Products Can Treat or Prevent Coronavirus, Federal com/2020/03/princess-cruise-covid19-investigation/ Trade Commission (Mar. 9, 2020). (last visited Apr. 8, 2020). 62 Leonard L. Gordon, Shahin O. Rothermel, & Deborah 77 Thomas J. Henry, Coronavirus (COVID-19) Nursing Bessner, FTC, FDA, State AGs, and Class Action Home Exposure, https://thomasjhenrylaw.com/ Lawsuit Clean Up Claims that Products Can Treat or personal-injury-attorney/medical/coronavirus-covid-19/ Prevent Coronavirus, Venable: All About Advertising nursing-home-exposure/ (last visited Apr. 8, 2020). Law (Mar. 12, 2020). 78 Nadrich & Cohen, Nursing Home Coronavirus Lawsuit, 63 Armas v. Amazon.com Inc., No. 104631782 (Fla. Cir. https://www.personalinjurylawcal.com/coronavirus- Ct. Mar. 10, 2020). lawsuit/ (last visited Apr. 8, 2020). 64 Florida Attorney General Issues More Than 40 79 Litigation Funding May Be a Lifeline for Businesses Subpoenas Over Alleged Price Gouging on Amazon, and Law Firms Distressed by Coronavirus Shutdown, Space Coast Daily (Mar. 25, 2020); Attorney General Litigation Finance Journal (Apr. 8, 2020). Schmitt and Amazon Announce Partnership to 80 Elizabeth Fisher, Legal finance: Future proof against Monitor and Combat Coronavirus Price Gouging, Eric recession, Burford Capital (Mar. 3, 2020). Schmitt Missouri Attorney General (Mar. 20, 2020), https://ago.mo.gov/home/news/2020/03/20/attorney- 81 John Beisner, Jessica D. Miller, & Jordan M. general-schmitt-and-amazon-announce-partnership- Schwartz, Selling More Lawsuits, Buying More to-monitor-and-combat-coronavirus-price-gouging. Trouble, U.S. Chamber Institute for Legal Reform (Jan. 2020). 65 Douglas Thompson, NAAG Polices COVID-19 Price Gouging, Demands Fair Pricing Policies and Actions, JD Supra (Apr. 8, 2020). 66 Alina Selyukh, ‘Stop Price Gouging,’ 33 Attorneys General Tell Amazon, Walmart, Others, NPR (Mar. 25, 2020).

20 82 Roy Strom, Court Delays May Grow Lawsuit Funders’ Returns, or Spur Disputes, Bloomberg Law (Mar. 24, 2020). 83 Investor Presentation, Omni Bridgeway 19 (Mar. 17, 2020), https://www.imf.com.au/docs/default-source/ site-documents/94-b-investor-presentation. 84 Caroline Simson, Third-Party Funders’ Business Is Booming During Pandemic, Law360 (Apr. 8, 2020). 85 Y2K Act, H.R. 775, 106th Cong., § 12 (1999). 86 Supra, note 20. 87 Supra, note 5. 88 Nam D. Pham & Mary Donovan, Fairer, Faster, Better: An Empirical Assessment of Employment Arbitration, NDP Analytics (May 2019), https://www. instituteforlegalreform.com/research/fairer-faster-better- an-empirical-assessment-of-employment-arbitration. 89 Take Responsibility for Workers and Families Act, H.R. 6379, 116th Cong., §§ 104, 203 (2020). 90 Providing Americans Insured Days of Leave Act of 2020, S. 3513, 116th Cong., § 306 (2020). 91 Supra, note 54.

21 ILR BRIEFLY | April 2020 | COVID-19 Liability

202.463.5724 main 1615 H Street, NW instituteforlegalreform.com 202.463.5302 fax Washington, DC 20062 24