Suing China? Try it and See How Fast it Will Fail By Ian Wilson LL. B
I always find it amusing when lawyers think that super-entities such a China can be reigned in by legal action. But, that is what an eager team of US lawyers think, God bless them, because they will need all the help they can get from transcendental powers:
“March 13, the Berman Law Group, a firm based in Boca Raton, Florida, filed a class-action lawsuit in federal court against the People’s Republic of China, along with several government ministries and other authorities, for its mishandling of the Covid-19 crisis. As the complaint alleges, the defendants, “acting from their own economic self-interest … failed to report the outbreak as quickly as they could have; underreported cases; and failed to contain the outbreak despite knowing the seriousness of the situation.” The original complaint named just four individual plaintiffs and a local company, an athletic training facility — none of whom had contracted the illness. But the filing made national headlines, and prompted a flood of calls — nearly 10,000 at last count — by additional plaintiffs, many of whom, like the Vecchiarellos, have been impacted more directly by the virus. An amended complaint, lead attorney Matthew Moore promises, will cover much larger classes and subclasses of plaintiffs.
The idea for the suit originated with Theodore and Russell Berman, the 40-year-old identical twins who run the firm. Outraged by the suggestion from Chinese foreign ministry spokesman Lijain Zhao that the U.S. might be to blame for the virus, they asked Moore and his colleague Jeremy Alters, the firm’s chief litigation strategist, to look into the possibility of a suit. Following the emergence of the virus in early December, the Chinese government actively downplayed the extent of the outbreak, disciplining eight doctors for “rumormongering” and forcing one doctor who’d sounded the alarm in a WeChat group to recant. (He died from the virus shortly thereafter.) That said, the U.S. government has also actively downplayed the danger of the virus, dismissing warnings by medical professionals and almost certainly exacerbating the problem. The two superpowers have been busily attempting to cast blame onto one another. Despite a reprimand by the WHO, the Trump administration has sought to rebrand Covid-19 the “Chinese virus,” presumably as a way of deflecting attention from its own failures. (Tellingly, the foreign minister’s tweet suggesting the virus originated in the U.S. remains online.)
“It’s a massive undertaking. You’re suing a world superpower. But it’s the right thing to do at the right moment.” Alters, who was once described as “Miami’s class-action-lawsuit king,” has tangled with the People’s Republic of China once before, winning a large settlement against Chinese manufacturers of toxic drywall, including a state-owned company. (He was disbarred in 2018 over financial matters, and is acting only as a strategist — not an attorney — in the Covid-19 suit.) It took Moore just 24 hours to write the Coronavirus complaint. Speed was of the essence, Alters claims, because, “we wanted to put China on notice that we’re going to seek remedy through U.S. courts. It’s a massive undertaking. You’re suing a world superpower. But it’s the right thing to do at the right moment. Our country is going to lose hundreds of billions if not trillions of dollars, and China needs to pay for it.” (He hastens to add that whatever the culpability of Chinese authorities, the Chinese people are victims of the crisis like everyone else.) Being the first class-action suit out of the gate has distinct strategic advantages. Publicity attracts more plaintiffs, and although similar suits are sure to follow, they will likely be consolidated by the courts and folded into the original case.
On March 17, a similar complaint was filed by Larry Klayman and Freedom Watch in Dallas, seeking $20 trillion in damages. Unsurprisingly, given Klayman’s reputation as a far-right gadfly — he unsuccessfully sued to keep Barack Obama off the ballot in Florida based on the false claim he was not born in the U.S. — his allegations rely on conspiracy theories, accusing China of the “creation and release, accidental or otherwise, of a variation of coronavirus known as COVID-19… as a biological weapon.” No evidence has emerged indicating that Covid-19 was intentionally created as a biological weapon, and there is considerable evidence that it emerged naturally. But in addition to playing into the disinformation campaign currently being pushed by China, Iran, Russia and fringe characters like Alex Jones, Klayman’s allegation appears to be part of a clear, if fanciful, legal strategy. The Berman suit also cites an unproven theory about the virus’ origins: speculation that the germ emerged from a Class 4 virology lab in Wuhan. The Foreign Sovereign Immunities Act limits the jurisdiction of U.S. courts over foreign states, with a few exceptions. One, as the Freedom Watch suit points out, involves acts of terrorism, though the idea that courts will accept Klayman’s allegation at face value is unlikely.
The Berman suit also cites an unproven theory about the virus’ origins: speculation that the germ emerged from a Class 4 virology lab in Wuhan, either “because of lax controls, or [because] Chinese researchers sold lab animals to the marketplace in question.” Moore and Alters acknowledge the theory is speculative at this point. “I expect that we will find out much more information, particularly if we’re allowed to do discovery and get documents,” Alters says. But a discovery process would be contingent on a court first ruling that it had jurisdiction in the case. Even if the virus were somehow traced to the lab, its accidental release seems unlikely to meet the definition of state-sponsored terrorism. Instead, the Berman suit mostly relies on a different exception to sovereign immunity, under which states functioning in a commercial capacity (as China was in the drywall case) can be sued in an American court. This approach is also a stretch, according to Gary Osen, a New Jersey-based attorney, who has won landmark judgments against foreign governments under the terrorism exception. Although he agrees that China’s response to the virus, “in terms of suppressing information, lying about the spread and nature of the virus, and so on,” appears to have worsened the crisis, he considers the legal hurdles all but insurmountable. China’s alleged mishandling of the outbreak, Osen notes, involves “classic sovereign functions: how you administer your health system, what information you disseminate, whether truthful or not — these are classic governmental, as opposed to commercial, functions.
“I’m not famous for picking horses” he says. “But I think it’s very unlikely this would ever get in front of a jury. Look, the Chinese government has plenty to answer for, but that doesn’t mean it’s going to be answering for it in a federal court.” Despite the lack of direct precedents, Alters remains confident. “We believe the law is on our side,” he says, “and this is an unprecedented situation that may require further law changes.” After all, Congress only passed the terror exception in 2016; given the scope of the Coronavirus disaster, another exception down the line is a real possibility.”
And so, it goes on. But, the problems here go beyond those mentioned in the article above, namely that US law severely limits action against other sovereign states, but the most important reason is that even if they did win, China would just ignore it. After all they are ignoring actions in courts over their claim of the South China Sea contested areas, so why should they care? Superpowers do what they like because, something lawyers never understand, might is right. Behind law, lies power, that is all.