Class action trends – May 2020
By Matthew Fleming, Marina Sampson, and Chloe Snider
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COVID-19 – and government and corporate responses to the pandemic – have spawned numerous litigation proceedings. At first, this was mainly a trend in the United States, but now, we have started to see similar COVID-19 class actions and other litigation in Canada. This blog post outlines the types of claims and industries affected by COVID-19 class action litigation to date in Canada and the trends we have already seen in the United States. Future blog posts will discuss specific claims in these industries in the Canadian market.
Canadian COVID-19 Class Actions and Litigation
In Canada, the following industries have seen the most significant rise in COVID-19 related class action and other litigation, based primarily on claims of breach of contract, negligence and misrepresentation:
Long-term care homes: claims (at least seven (7) to date) regarding deaths at long-term care homes which involve allegations of a failure to plan and respond to the COVID-19 pandemic (compliance with public health guidance, access to personal protective equipment ("PPE"), and testing) (reported here, here and here);
Insurance: Covid-19 business interruption claims;
Entertainment and travel: claims seeking refunds for events, flights that have been impacted by COVID-19;
Education: claims made against educational institutes in respect of tuition and other fees that have been paid (including parking);
Correctional facilities: claims regarding the spread of COVID-19 at correctional facilities; (reported here, and here);
Medical equipment: regarding false positive COVID-19 results from tests and misrepresentations about the quality of PPE.
U.S. COVID-19 Class Actions
In the United States, COVID-19 related class action litigation has involved primarily the following industries:
Retail: claims of price gouging by retailers (including large online retailers) with respect to groceries and pandemic essentials including hygiene products, and false advertising claims regarding the efficacy of hygiene products;
Entertainment and travel: similarclaims seeking refunds for flights and sporting events, and COVID-19 exposure on cruise ships;
Fitness: claims of gyms collecting membership fees despite closing gym facilities;
Digital platforms: claims of misrepresentations in securities filings regarding software security capabilities that have been exposed in light of the COVID-19 pandemic, data and privacy concerns, and fees charged by food delivery apps;
Banking and finance: claims alleging unfair banking and lending practices;
Medical products: claims regarding misrepresentations about the development of medical products in light of the COVID-19 pandemic;
Insurance: similar claims regarding business interruption insurance coverage denials;
Hospitals: claims against employers regarding the failure to take steps to protect employees in light of the COVID-19 pandemic; and
Education: claims against universities regarding the repayment of tuition and fees in light of the COVID-19 outbreak.
This litigation over a broad range of industries involves legal claims regarding consumer protection (price gouging, false advertising), intellectual property, negligence, contractual disputes, securities law, data and privacy laws, and employment laws. These claims may foreshadow future litigation in Canada.
Notwithstanding the commencement of COVID-19 related class actions against a variety of industries, it will remain to be seen which, if any, of these claims are viable, either as class proceedings or at all. And the commencement of the litigation may signal to others in those industries what claims they may expect depending on their business practices and positions, and may therefore moderate or affect future conduct that may in turn allow these companies to mitigate the likelihood or impact of such litigation. This blog will continue to monitor.
About Matthew Fleming
Matthew Fleming is a partner in the Litigation and Dispute Resolution group of Dentons' Toronto office and is the Co-Lead of the Firm's global Financial Services Litigation group. His practice focuses on commercial litigation, including securities litigation, class actions, product liability and professional liability matters.
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About Marina Sampson
Marina is a commercial litigator and a partner in the firm's Litigation and Alternative Dispute Resolution practice group. Marina is an experienced class action lawyer. She is also a member of the firm's Environmental, Renewable Energy and Energy Law Practice Group. She is the National Co-Lead of the firm's Products Liability Group.
About Chloe Snider
Chloe Snider is a partner in Dentons' Litigation and Dispute Resolution and Transformative Technologies groups. Her practice focuses on litigating complex commercial disputes and assisting clients manage risk. She is a strategic and critical legal thinker who works efficiently to develop practical solutions for her clients.
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