What is the foundation of your claim presented against the Chinese government?

Well, I don´t know if you aware of both of our claims, we have two lawsuits against China. 

The first lawsuit that was filed on March 12th is a general claim against China for their cover-up and concealment of facts about the truth about the virus for almost three weeks, while it spread and caused the devastation that we are feeling now. That is based on two exceptions within the Foreign Sovereign Immunities Act (FSIA) of 1976 of the US law that we use: the first one is called the Non-Commercial Tort, like a regular tort lawsuit for personal injury and property damage, and the second is called the Business Activity Exception, which has to do with acts by the foreign state in relation with economic activity, that have a direct effect on business in the United States. That lawsuit is probably about to be amended before we get into the scheduling – the courts move cases along and we haven´t served China yet so we are looking to expand the causes of action and also to add more classes of cases. Since we filed the lawsuit we had thousands of people contact us. 

The second lawsuit which we filed last week is a class action also against China and now including the Chinese communist party that has to do with the affording of PTE (Personal Protective Equipment) that health care workers need to protect themselves, and that is a claim based on the fact that in the beginning of January, when they knew that this was a dangerous virus, when they knew of the ease of human transmission, and before they shared this knowledge with the world, their own costumer reports show, that basically they went to the four corners of the world and bought up as much PTE as they could find, and at the same time, told their factories which produce PTE to stop exporting to stop exporting their output to other countries. So, knowing that a virus was about to become a problem around the world and then cornering the market on the gear that is needed and now they are charging well over the prior market price for it, we feel that is wrong. It puts doctors, nurses, and paramedics and emergency medical technicians in risk. That is the second lawsuit. It is also filed persuing the same exceptions of the Foreign Sovereign Immunities Act. 

I would speak a little bit more about the FSIA: under the FSIA there are people out there who argue that it is almost impossible to sue a foreign nation. It is true that it is hard to do, however, there are pathways that have been created in US law that allow you to do it under the exceptions mentioned before. This is what the law says: when a country acts so aggressively that their acts are beyond the “triceps of humanity” or when they act in violation of their own laws. 

For example, referring to a lawsuit in 2010 of the Ninth Circuit Court of Appeal related to the Vatican, where US people were suing the Vatican over the child sexual abuse matters, the Ninth Circuit Court of Appeal said to the Vatican “you don´t get the high behind immunity when you knew of a great danger and you covered it up and didn´t warn anybody about it”. So, we believe that there is a pathway to jurisdiction and a pathway to the courts. 

What do you reclaim from the Chinese government? 

You mean in damages? We purposely did not put a damages number in the claim, other than to meet the court´s jurisdictional limits for the class action – it needs to be over 5 million dollars – because the number is astronomical to look at. Certainly we have a benchmark in that the US just passed the 2 trillion dollars stimulus bill to help the army, to help businesses and individuals who are suffering because they are out of work, and the US doesn´t have the same social programmes as many other countries. So certainly that´s a start. 

Who are the petitioners of the claim? 

For the second lawsuit about the PTE, the question is easier to respond, because the claimants there are mostly health care workers, doctors, nurses, and medical technicians who are in the hospital, working with the patients who are suffering the effects of COVID, as well as the paramedics and emergency medical technicians who have been getting the patients from their homes and bring them to the hospital – so that´s who those claimants are. We have quite a few signed up, people who unfortunately have been diagnosed with COVID and are suffering the effects.

The first lawsuit includes a range of citizens and companies that have been affected, so when we amend there are likely to be a dozen classes of people and those will be broken up into people who have had COVID, who have cared for people with COVID, who have lost someone to COVID, and then on the business side, the businesses that have been clearly devastated by the economic effects of the virus. 

In what moment of the proceeding is the case right now? 

For the first case, since we just filed on March 12th, the court has set a date on April 17th deadline for what´s called a “joint scheduling report” where the parties come together and tell the court how they expect litigation to proceed, followed by a stab conference on May 1st. We are about to have the court to stay the deadline of April 17th because clearly we haven´t served China yet, so there isn´t another party to do the joint scheduling report, and we are planning to amend the complaint so we are hoping for the court to stay that deadline – so, probably, late June, early July. 

For the second case, there is no deadline set yet, because it was just filed, it has been assigned to a judge; we are waiting for the court to issue the standard orders that come out when a case starts. I don´t know how familiar you are with our federal court system, but it´s faster than our individual state courts, the judges are under administrative rules and orders to move litigation along. These cases are special because they do involve foreign service and we have to serve the Hague Convention and serve the Process, and then we have to see if China is going to answer, because they are a world superpower and maybe they won´t answer. 

This is just a little background: I´ve sued China before, my colleague Jeremy Alters – who is the Chief Firm Strategist – and I, we´ve sued China in 2009. We´ve sued Chinese-government-owned companies over issues with defective drywalls. So the drywall goes into the home. The way the manufacturers had made the drywall, it had contaminants in it that affected air conditioning systems, plumming pipes, electrical wiring – it smelled really awful and caused respiratory issues. If a household caught one bad wallboard, it infected the entire house – the only way to fix it was to redo the entire interior of the house. This case was against both German manufacturers who had a Chinese plan and a manufacturer that was owned by the Chinese government. The German manufacturer answered the complaint pretty quickly, and litigated and they finally settled for about 1 billion dollars about three years into the case, but the Chinese government resisted answering for their company, but eventually the federal judge assigned to the case said that the Chinese government has eight tankers sitting in their harbour – he was in New Orleans – and that he was going to attach those state tankers unless you plan on coming to court. And although it took longer for them to resolve the case, they just recently resolved it and settled. So, in the end, they did come to court, they did litigate, they did meet the allegation. So, I think it´s possible given the gravity of this case and the effects it´s having on the world, I think there´s a good chance that they want to at least address it. 

Do you think that there are any other reasons apart from the ones already presented by you to file a claim against the Chinese government?

You mean other causes of action? Right now we are looking at how the virus started. There are a couple of different origin stories for the virus. One of them is that it was created in a lab, in the Bioweapons lab that is located in Wuhan. The other is that it was simply a matter of animal to human transmission, that they knew would occur based on what happened with SARS in the early 2000´s, and because the animal trade in so big in Southern China, it´s a multibillion dollar part of their economy. So they choose to look the other way and let the market continue to flourish. 

However it started, that is going to be part of the law suit going forward, and part of the claim to explain how did this all happen. How the origin story of the virus develops could imply other factors that might not be state controlled, but by private actors or companies. 

Do you think that citizens from other countries could join the claim? 

Under US law that´s an open question. There are some US laws that allow foreign nationals to sue in US courts for terrorist related acts, and while we have investigated the terrorism angle to what has happened in this lawsuit, because it´s certainly a question, as to what China unleashed in the world and what they knew about the effects that the virus could have on people. There is no answer to this questions right yet, but it´s certainly something we are looking at. But under US law there is a chance that foreign nationals could sue in US courts on the terrorism related claim. We are getting questions and inquiries from all over the world right now – from Asia, from South America, Latin America, from Europe – about joining our sue, and other law firms who want to do something similar in their own countries. So we have been looking into forming a global coalition of law firms and parties, because it´s not just the United States, obviously, it´s the entire world that is impacted. 

The interview was held via telephone by Christine Füssel, editor of The Impact Lawyers Magazine, with Matthew Moore, Lead Attorney for the two cases filed by The Berman Group against China, on the 15th of April 2020.