COVID-19 Class Actions and Litigation Issues

The COVID-19 pandemic will have a profound impact on commercial litigation for the foreseeable future. Many industry sectors will notice an increase in litigation, and companies will need to navigate these suits within new court processes and procedures, including an increased reliance on technology. Manatt’s civil trial and appellate lawyers have been closely monitoring updates from the courts and already have experience handling litigation matters and class actions in new remote work environments.

Key Issues to Consider

The Impact of Court Closures on Litigation
The Issue: Many trial and appellate courts have announced significant reductions in their operations related to all but emergency matters. These courts have also ordered all pending matters (including scheduled trials) continued for varying lengths of time. These actions limit access to judges, magistrates and commissioners to resolve disputes that arise in the normal course of litigation. How Manatt Can Help: Manatt’s civil trials and appeals leaders are closely monitoring these closures and updating our clients with the current status of court operations. Manatt can assist you in negotiating methods to move matters forward with opposing counsel or with the use of remote technology.
The Impact on Document Retention and Discovery Obligations
The Issue: Documents created at home, in remote work environments or in virtual offices are still subject to preservation requirements, but not all clients have robust technology that allows for seamless remote work. That means some of these documents and communications may be created and stored on employees’ personal computers. How Manatt Can Help: Manatt’s litigators have proactively advised clients regarding these potential issues and have prepared a “discovery hygiene” checklist for clients to use when evaluating these potential issues.
Using Technology for Matters That Require In-Person Attendance
The Issue: Some legal matters continue to require in-person attendance, such as depositions, mediations, arbitrations and meet-and-confer sessions. There are technology-enabled options that allow these procedures to move forward, but they are not without additional considerations. How Manatt Can Help: Manatt has cutting-edge technology that allows its lawyers to work remotely, and our litigators have experience working with court-reporting services to ensure that depositions, mediations and arbitrations can be conducted effectively. We can guide you through the benefits and concerns of using these technologies to proceed with your matter.
Working With Opposing Counsel or Adverse Parties
The Issue: There is valid concern that opposing counsel or adverse parties will seek to take advantage of the uncertain environment in order to gain litigation advantages. This is not the Manatt way. Manatt’s litigators always perform to the highest levels of professional responsibility. Manatt lawyers will not seek to gain an advantage from the confusion and uncertainty that the pandemic has created and will aggressively respond to any efforts by opponents to use the events for strategic advantage. How Manatt Can Help: Manatt lawyers follow an ethical code of “fair play,” but if clients find conversations with opposing counsel stalled or becoming hostile during this pandemic, our litigators can act aggressively in asserting client rights and civil procedure.
Litigation Concerning Business Interruption and the Cancellation of Large Events
The Issue: As economic activity slows, issues will arise concerning whether the pandemic excuses, delays or otherwise impacts ongoing contractual obligations or obligations to perform within specified time frames. Relevant issues will include enforcement of force majeure clauses and common law defenses to contractual performance, such as impossibility, impracticability and frustration of purpose. How Manatt Can Help: These issues will cut across industries and will impact parties on both sides of contractual obligations. Manatt has established a multidisciplinary task force to focus on these issues as they impact our clients.

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