How are courts working around coronavirus restrictions?
Federal District Courts are using a variety of measures to minimize as much as possible the inevitable delay in caseload disposition. The vast majority of the 94 U.S. District Courts have elected to restrict public access to courthouse facilities, halt jury trials, and/or encourage or require the use of teleconferences for hearings for certain proceedings. Many such orders mention exemption from the Speedy Trial Act, which mandates that criminal trials begin at a certain time and cannot be delayed.
Courts in some of the most seriously affected areas are using teleconferencing, email, and phone calls to deal with cases in which defendants are constitutionally entitled to a speedy trial. The U.S. District Court for the Western District of Washington issued an order on March 25 laying out a four-level remote access plan that would allow such trials to move forward. In-court proceedings are not feasible because of Covid-19 contagion guidance, but levels two through four will range from a skeleton courthouse hearing with defendant videoconferencing from a separate room to a fully remote, telephone-only hearing with relevant exhibits exchanged by email.
Who might benefit from Covid-19’s impact on the legal system?
Court delays forced by the pandemic may benefit some parties. The Covid-19 fallout and several recent court decisions may enhance the position of gig economy workers who have been stymied in legal actions by companies such as Uber and Lyft, who have driven class suits into arbitration. Two late-March decisions by the New York Court of Appeals and the U.S. District Court for the District of Massachusetts, respectively, were pro-worker on the relevant issues. The public perception of the gig economy workforce unquestionably has been aided by the important role it’s playing in helping get through the pandemic.
The delayed legal environment also may be good for players in the litigation funding industry, because their return on investment tends to be higher when the cases they’re invested in get dragged out. That advantage will undoubtedly be tempered by the sector’s growing competitiveness and what analysts see as a power shift away from funders and toward law firms and clients.
What are the pandemic’s effects in the antitrust and regulatory areas?
Antitrust and competition regulators are steering a difficult course in maintaining the production and distribution flexibility needed to respond to the pandemic without creating too wide an opening for price gouging, fraudulent schemes, and securities law violations. The European Competition Network, comprising the EU’s national competition authorities, has set up a dedicated website to offer guidance to companies, departing from its usual reticence on such matters. It has, however, pointedly underscored its readiness to take action against companies that might exploit the current situation by “cartelizing or abusing their dominant position.”
In the U.S., the Department of Justice has directed state attorneys general to prioritize a range of fraudulent activities, and state and local law enforcement will be able to draw on $850 million in funding to be disbursed by DOJ under the Coronavirus Emergency Supplemental Funding program. DOJ also has established a COVID-19 Hoarding and Price Gouging Task Force. Health care and online companies, in particular, should expect to experience additional scrutiny for some time, even beyond the peak of the virus.
The Food and Drug Administration and the Federal Trade Commission have issued warning letters to seven companies about claims made on Covid-19 products, and the Department of Health and Human Services’ Inspector General has initiated a review of the compliance of Medicare- and Medicaid-funded facilities with federal emergency and infectious disease control requirements.