The Façade of COVID-19 Class Action Litigation Against China Under the Foreign Sovereign Immunities Act

1. Introduction and Summary of Pending Class Action Cases

In recent weeks, at least seven class action lawsuits have been filed in federal district courts throughout the United States against the government of the People’s Republic of China (the “P.R.C.” or “China”), all relating to China’s alleged liability for damages and injuries sustained in the ongoing COVID-19 pandemic. Although plaintiffs in these lawsuits make broadly different claims, they all face the same highly formidable legal roadblock: a need to find exceptions that can pierce the presumptive immunity afforded to China and other sovereign nations under the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1602, et seq., which would otherwise preclude their claims at the outset for lack of jurisdiction.

The first action, Logan Alters, et al. v. People’s Republic of China, et al., Case No. 1:20-cv-21108-UU (the “Florida action”), filed in the Southern District of Florida, asserts claims for negligence, negligent (and in the alternative, intentional) infliction of emotional distress, strict liability for ultra-hazardous activity, and public nuisance against the Chinese government, as well as the country’s National Health Commission, Ministry of Emergency Management, and Ministry of Civil Affairs. Two Chinese political subdivisions, the People’s Government of Hubei Province and that of the provincial capital Wuhan, where cases of the virus were first reported, are also named as defendants. The plaintiffs assert subject matter jurisdiction under the “tort” and “commercial activity” exceptions of the FSIA and identify the putative class as consisting of all persons and legal entities, in Florida and the U.S., who have allegedly suffered injury, damage and loss related to the COVID-19 outbreak. A similar action, Bella Vista LLC, et al. v. People’s Republic of China, et al., Case No. 2:20-cv-00574, filed in the District of Nevada, largely mirrors the claims and class certification requests found in Logan, but is limited to damages allegedly sustained in Nevada.

Two other class action cases, Buzz Photos, et al. v. People’s Republic of China, et al., Case No. 3:20-cv-00656-K, filed in the Northern District of Texas, and Borque CPAs and Advisors, Inc., et al. v. People’s Republic of China, et al., Case No. 8:20-cv-00597, filed in the Central District of California, also include as defendants China’s military, the People’s Liberation Army, and the Wuhan Institute of Virology, a biological laboratory. Otherwise, despite striking a somewhat more forceful narrative than Logan and Bella Vista, the claims and class certification requests in these two latter actions largely reflect those found in the former.