Tuesday, April 28, 2020

Missouri and Mississippi file lawsuits against China for damages related to coronavirus pandemic, but experts say the cases have virtually "zero chance" of success

Missouri AG Eric Schmitt

Missouri's attorney general has filed a lawsuit against China, seeking damages for the coronavirus pandemic that apparently originated in Wuhan. Mississippi followed up last week with a similar complaint in U.S. District court, even though legal experts say both lawsuits have virtually "zero chance" of success.

So, why did Missouri's Eric Schmitt and Mississippi's Lynn Fitch pursue litigation that is expected to be dead on arrival? Are the suits acts of political theater, at taxpayers' expense? Are they appeals to the racism that lurks beneath the surface of the states' electorates? Could they be attempts to distract the public from Republican failures that allowed the virus to take hold in the United States?

This much appears certain: The lawsuits were not filed because they are likely to prevail on the merits.  From a report at Sinclair Broadcasting Group:

Missouri Attorney General Eric Schmitt filed a lawsuit (last) Tuesday on behalf of the citizens of his state, naming the People's Republic of China, the Communist Party of China, the country's national health ministry, the government of Hubei Province and the Wuhan Institute of Virology among the defendants.

"The Chinese government lied to the world about the danger and contagious nature of COVID-19, silenced whistleblowers, and did little to stop the spread of the disease. They must be held accountable for their actions," Schmitt wrote in a statement.

The state will seek more than $44 billion in damages, Schmitt told KSDK. The figure accounts for personal hardship, including loss of life, health, emotional damage as well as unemployment, economic dislocation and other financial losses.

Specifically, the complaint alleged that in the early weeks of the outbreak, Chinese authorities "deceived the public, suppressed crucial information, arrested whistle blowers, denied human-to-human transmission in the face of mounting evidence, destroyed critical medical research, permitted millions of people to be exposed to the virus, and even hoarded personal protective equipment...thus causing a global pandemic that was unnecessary and preventable."

China denied the allegations as "absurd." Chinese Foreign Ministry spokesperson Gen Shuang told reporters that the lawsuit was "malicious and abusive and violates basic legal principles" of sovereign immunity.

Is the Chinese official correct? When you consider longstanding relevant law, the answer is yes. From the Sinclair article:

Under U.S. law and international law, a foreign state "or an agency or instrumentality of a foreign state" cannot be sued in a national court. The U.S. Foreign Sovereign Immunities Act (FSIA) states that a U.S. court does not have jurisdiction over the activities of a foreign state, with very few exceptions.

Missouri's case likely will not meet those exceptions, explained Maria Glover, a Georgetown University law professor. "You're looking at a lawsuit that has almost zero chance of surviving the very first jurisdictional hurdle," she said.

Without a way to overcome the sovereign immunity issues, the lawsuits are "largely symbolic," Glover continued.

What about details related to FSIA and sovereign immunity? A lawyer source provides them for Legal Schnauzer:

Since the early days of our republic, the Supreme Court of the United States has repeatedly declared that a foreign government cannot be sued, or subject to suit, in an American court. See, e.g., Schooner Exchange v. McFaddon, 11 U.S. 116 (1812). According to an ancient principle of international law -- commonly referred to as "sovereign immunity" -- a nation does not have jurisdiction to adjudicate lawsuits filed in its courts against a foreign nation or foreign government.

In 1976, the United States became the first nation in the world to codify the law of foreign sovereign immunity by legislative (congressional) statute. To this end, Congress passed and the U.S. enacted what is called the Foreign Sovereign Immunities Act ("FSIA"). While this congressional law broadly codified the ancient, common-law principles of sovereign immunity, it also included a small number of limited exceptions to this immunity -- most notably an exception which allows for lawsuits against foreign nations when those suits are based on claims arising from a foreign nation's "commercial activity."

Simply put, FSIA is basically a jurisdictional statute. Once a foreign defendant is sued, that defendant must demonstrate that it is a "Foreign State" -- an easy task for any nation, such as China, that has been formally recognized by the U.S. government as a foreign state. Once a foreign defendant demonstrates that it is a "Foreign State," then the plaintiff or party who filed the lawsuit must bear the burden of proving that the suit's claims come within the limited exceptions of the FSIA. In Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428 (1989), the Supreme Court declared that the only way anyone can sue a foreign state in an American court is by way of the FSIA's few, limited exceptions; and those exceptions are to be narrowly construed.

Even in Missouri, knowledgeable sources seem to wonder what Schmitt is trying to pull. From a Kansas Ciy Star article by Bryan Lowry and Caitlyn Rosen:

Missouri Democrats dismissed the suit as a political stunt and waste of taxpayer money. Legal experts gave it little chance of success.

Schmitt’s complaint cites stories from The New York Times, The Wall Street Journal, and The Washington Post about China’s handling of the initial outbreak. He also includes a link to a story from Breitbart, a right-wing news site. . . .

The suit . . . names as defendants the Chinese Communist Party, the city of Wuhan, where the virus first spread, and the Wuhan Institute of Virology, a lab in China at the center of conspiracy theories related to the virus’ initial outbreak.

The action cites 2018 State Department cables that expressed safety concerns about the lab’s research related to coronaviruses. The lab has pushed back strongly on claims that it had any involvement with the spread of the virus.

But the case faces significant legal hurdles, experts said Tuesday.

“There are a number of longstanding principles against U.S. states conducting their own foreign policy,” said Sam Halabi, a professor at the University of Missouri School of Law who specializes in global health law.

Halabi said there are legitimate concerns about how China reacted to the virus that should be investigated. But he cast doubt that the suit would advance or that China would even send representatives to the court to contest the case.

“I don’t know that a district court in the eastern part of Missouri is the right place to do that fact-finding,” he said.

One major obstacle will be sovereign immunity, the legal principle that protects foreign governments from lawsuits with some exceptions.

The attorney general’s complaint cites two exceptions to the Foreign Sovereign Immunities Act, which he argues should allow the case to proceed. They relate to commercial activity in the U.S. and “for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state.”

Patrick McInerney, a former federal prosecutor who works in private practice in Kansas City, said the argument is unlikely to find traction.

“The list of challenges to this complaint is long. It’s a tough call to say spreading this virus was commercial activity. At the end of the day, I think this is much more of a stunt than an effort to get compensation for people in Missouri who have been impacted by coronavirus,” McInerney said.

“There’s a reason that citizens and governments aren’t allowed to sue other countries. It would choke the judicial system,” McInerney said. “This is a big square peg in a place where there may not be hole at all.”

A Missouri Republican is trying to boost Schmitt's cause in Congress:

Schmitt does have a prominent Republican ally. U.S. Sen. Josh Hawley, who preceded Schmitt as attorney general, has drafted legislation that would strip China of sovereign immunity to enable states and private citizens to take legal action.

“This is an important step to hold China accountable. That’s why I’ve introduced legislation to allow states and private citizens to sue the Chinese Communist Party responsible for this pandemic. More states should follow Attorney General Schmitt’s lead,” Hawley said in a statement. “The CCP took deliberate steps to coverup this virus and their actions are indefensible. They don’t deserve sovereign immunity.”

Elad Gross, a St. Louis attorney running for attorney general as a Democrat, said on Twitter without Hawley’s proposed change to the law, Schmitt’s lawsuit has little chance of succeeding.

“I wonder why our Attorney General spent taxpayer resources - probably a lot because of how complicated this case is - on suing China before working on the many issues we need to work on at home, like price gouging, scams, workplace protections, and protecting the vote,” Gross said.

State Rep. Kip Kendrick, a Columbia Democrat, said also dismissed the lawsuit as a political move.

“I think it’s pretty clear to people that Missouri won’t have standing to sue China. And as we’re in the midst of cutting hundreds upon hundreds of millions of dollars from the state budget, I guess my request to the attorney general would be that he doesn’t waste a lot of taxpayer dollars in this pursuit,” Kendrick said.

State Rep. Judy Morgan, a Kansas City Democrat, called the suit a waste of time and resources that would do little to mitigate the virus in Missouri.

“I certainly think there’s been some lack of transparency on China’s part from the beginning, but I think you could say the same thing about our country because the president initially called COVID-19 a hoax,” Morgan said.

State Sen. Bob Onder, a St. Charles County Republican, said even if the case faces uphill battle legally it sends the message that Missourians want to hold China accountable.

“I would just say that just because something is popular politically doesn’t make it wrong,” Onder said. “And in this case, I think Attorney General Schmitt is on target.”

As for the notion the lawsuits are designed to distract attention from Republican failures on the coronavirus outbreak, let's consider these words from an analysis at peoplesworld.org:

Attorney General Schmitt’s, Missouri Gov. Mike Parson’s, and President Donald Trump’s responses to the pandemic simply add injury to insult and do little to comfort and reassure working-class people who need real leadership—not blustering.

There are a number of interconnected themes in Schmitt and his cohorts’ suit worthy of deeper analysis.

First, the inaction of the president and the Republican Party—including Parson and Schmitt—are to blame for the mounting death toll, infections, and corresponding economic hardship being faced by tens of millions of Americans, not China.

In fact, they are actually making things worse by emboldening the most reactionary, racist, and militarist elements in our society—as demonstrated by the recent wave of astroturfed rallies and protests in numerous state capitals across the country—thereby placing additional strain on an already overwhelmed health care system.

Second, their blustering is designed to stifle science-based, centrally coordinated plans supported by the medical community. They aim to further erode civil discourse and trust in informed decisions. Not only has the president contradicted his own statements in regard to China’s response to the pandemic, but he has also encouraged Republican underlings to do the same, thereby fomenting confusion and misinformation—exactly the thing Schmitt has accused the Chinese government of.

Third, this blustering follows in the wake of a spike in anti-Asian sentiment, racism, and physical assault. The anti-Chinese rhetoric serves to reinforce and bolster racist hate and fear. More than 1,100 physical and verbal attacks in 46 states against Asian Americans have been documented since late March. This blood and trauma are on the hands of Schmitt, Parson, and Trump—not just the racist hate groups they embolden.

Likening COVID-19 to the “China virus” or the “commie virus” plays to the Republican Party’s far-right base. Their priority is not stemming the pandemic tide or mitigating the economic hardship. Their priority is to lay the groundwork for a mobilized and energized far-right electorate this November.

Schmitt, Parson, and Trump are quite literally playing politics with people’s lives.

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