{"id":353,"date":"2020-07-31T13:12:46","date_gmt":"2020-07-31T17:12:46","guid":{"rendered":"http:\/\/blogs.duanemorris.com\/insurancelaw\/?p=353"},"modified":"2020-08-14T10:07:56","modified_gmt":"2020-08-14T14:07:56","slug":"lengthy-oral-argument-on-potential-consolidation-of-business-interruption-coverage-cases-related-to-covid-19","status":"publish","type":"post","link":"https:\/\/blogs.duanemorris.com\/insurancelaw\/2020\/07\/31\/lengthy-oral-argument-on-potential-consolidation-of-business-interruption-coverage-cases-related-to-covid-19\/","title":{"rendered":"Lengthy Oral Argument on Potential Consolidation of Business Interruption Coverage Cases Related to COVID-19"},"content":{"rendered":"

By Damon Vocke<\/a><\/strong><\/em><\/p>\n

On July 30, the Judicial Panel on Multi-District Litigation (the Panel) heard oral argument of extraordinary length on the potential consolidation of all the federal cases involving business interruption coverage relating to COVID-19 and\/or the COVID-19 shut-down orders.\u00a0 There are some 449 such federal cases, approximately 200 of which are putative class actions.<\/p>\n

Normally, the arguments for consolidation are short.\u00a0 This one was not. \u00a0This was likely due to the importance of the pandemic-related litigation, as well as the multiplicity of positions.<\/p>\n

Several policyholder plaintiffs argued for national consolidation.\u00a0 Insurer-specific consolidation was the most common fall-back position among the policyholder plaintiffs.\u00a0 Several policyholder plaintiffs argued against any consolidation \u2013 most notably, David Boies. \u00a0Counsel for some of the insurer defendants argued on behalf of the industry against any consolidation.<\/p>\n

From the questions posed to counsel, we believe it is unlikely that there will be any national consolidation.\u00a0 The judges seemed skeptical that there are common questions of fact, which is the most important criterion for consolidation.\u00a0 For instance, mass torts and consumer class actions have obvious common questions of fact involving a defendant\u2019s allegedly tortious conduct.\u00a0 By contrast, here, the policyholder plaintiffs insisted that there are common policy wordings, but that did not appear to satisfy the Panel.\u00a0 Industry counsel and some policyholder counsel argued that not only are the wordings different (which present legal issues, not fact issues), but also, more importantly, that the fact-specific circumstances for the various claims are also quite different and involve plaintiff-specific discovery.<\/p>\n

The theme of the policyholder plaintiffs is that \u201ctime is of the essence,\u201d that there is a national emergency requiring fast coordinated action at the federal level for their business clients to survive.\u00a0 Industry counsel had strong rebuttals to that position in terms of how far along many of their actions already are in federal district court, how other national emergencies were effectively handled without MDLs, and how MDLs are more likely to slow down the pace.<\/p>\n

The Panel asked many questions about less ambitious MDL formations, such as insurer-specific MDLs and state-specific MDLs.\u00a0 The industry response was largely that there are already effective ways for district courts to coordinate such actions with fellow district judges and also state judges.\u00a0 It is possible, though we believe still unlikely, that the Panel could order, for instance, the coordination of certain insurer-specific actions in their own respective MDLs. \u00a0State-specific MDLs are even more of a dark horse for various reasons, though still possible.<\/p>\n

The Panel demonstrated substantive knowledge of insurance coverage actions, including an awareness of the great impact of differences in state laws, as well as an awareness that these actions are usually resolved on summary judgment, if not before.\u00a0 The Panel asked none of the traditional questions about convenience factors relating to the various forums suggested to host the MDL, which strongly implies that they are not considering a national consolidation.<\/p>\n

The Panel does not issue rulings from the bench, and did not do so here. \u00a0While we cannot predict the timing of a ruling with any certainty, we anticipate a decision relatively soon (1-3 weeks).<\/p>\n","protected":false},"excerpt":{"rendered":"

By Damon Vocke On July 30, the Judicial Panel on Multi-District Litigation (the Panel) heard oral argument of extraordinary length on the potential consolidation of all the federal cases involving business interruption coverage relating to COVID-19 and\/or the COVID-19 shut-down orders.\u00a0 There are some 449 such federal cases, approximately 200 of which are putative class … <\/p>\n

Continue reading “Lengthy Oral Argument on Potential Consolidation of Business Interruption Coverage Cases Related to COVID-19”<\/span><\/a><\/p>\n","protected":false},"author":6,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[2],"tags":[383,397,381,404,405,406],"ppma_author":[417],"class_list":["post-353","post","type-post","status-publish","format-standard","hentry","category-general","tag-business-interruption","tag-business-interruption-coverage","tag-covid-19","tag-mdls","tag-multi-district-litigation","tag-shut-down-orders"],"authors":[{"term_id":417,"user_id":6,"is_guest":0,"slug":"duanemorris3","display_name":"Duane Morris","avatar_url":"https:\/\/secure.gravatar.com\/avatar\/843ff6e7a8fe5fc92109b47a45f34b6cf0ea499e6e788db23456c838b0ae6747?s=96&d=blank&r=g","0":null,"1":"","2":"","3":"","4":"","5":"","6":"","7":"","8":""}],"_links":{"self":[{"href":"https:\/\/blogs.duanemorris.com\/insurancelaw\/wp-json\/wp\/v2\/posts\/353","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.duanemorris.com\/insurancelaw\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.duanemorris.com\/insurancelaw\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/insurancelaw\/wp-json\/wp\/v2\/users\/6"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/insurancelaw\/wp-json\/wp\/v2\/comments?post=353"}],"version-history":[{"count":0,"href":"https:\/\/blogs.duanemorris.com\/insurancelaw\/wp-json\/wp\/v2\/posts\/353\/revisions"}],"wp:attachment":[{"href":"https:\/\/blogs.duanemorris.com\/insurancelaw\/wp-json\/wp\/v2\/media?parent=353"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/insurancelaw\/wp-json\/wp\/v2\/categories?post=353"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/insurancelaw\/wp-json\/wp\/v2\/tags?post=353"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/insurancelaw\/wp-json\/wp\/v2\/ppma_author?post=353"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}