 Welcome, and aloha. My name is Mark Schlaufe. I am the host of Think Tech Hawaii's Law Across the Sea program. Today we will go across the sea to discuss lawsuits that were recently filed in the United States against China defendants with the COVID-19 pandemic. And our guest, Rob Preck, is a lawyer and founder and president of Justice Labs. Welcome, Rob. How are you? Thank you, Mark. Thanks very much for having me. I'm well. Okay. Now, Rob, tell me first a little bit about your background, your relationship with China, what you did there, and, you know, how long you were in China. Okay. Well, very briefly, the first part of my career, I was a public defender in New York City, both as a trial and an appellate lawyer. Then I moved to the University of Michigan Law School, and I was there for about eight years or so. As a professor? Actually, I was running a public interest program. And I was head of the pro bono program and career advising and things of that sort. So that was a great experience. But then I, long story short, I was asked to start a human rights project on behalf of a New York nonprofit in Beijing. And I did that. I went there and I was lived in Beijing for five years from 2008 to 2013. And it was basically a legal education program designed for Chinese law students and Chinese lawyers about Western notions of public interest law, how lawyers can use law to protect people or to vindicate rights and things of that sort. And to launch lawsuits against governments, as you can imagine, it wasn't a particularly popular message among some of the authorities in Beijing. And we would not be able to do that today. But in that period, there was a brief window. And since about 2014, I've been directing Justice Labs. Justice Labs is a 501c3 corporation. It's a blend of being a think tank, focusing on public interest issues, and a resource to students and lawyers who want to pursue public interest careers. And that's been a lot of fun. Wow. So you have had a lot of time in China, in Beijing. And now we're seeing a bunch of cases come up. And I'd like to focus on these lawsuits. These recent lawsuits in the United States have been filed in the United States against China or China defendants about the COVID-19 pandemic. What are these lawsuits about? And what's the basis of these lawsuits? Well, in the biggest picture, the basis of the lawsuits is that people and businesses in the U.S. feel aggrieved. They feel a great damage has been done to them. And so thus far, there has been no mechanism put forth by politicians or anyone else to help these people get redress, to have their day in court, so to speak. I mean, that's an expression in English, to have your day in court. And so on the broadest level, it's an attempt for people to have their day in court. And there are different variations of these lawsuits. In the case of Missouri, it's the attorney general who has filed a lawsuit in Federal District Court as a representative of all of the Missourians who have been injured, who have faced economic harm or wrongful deaths as a result of this. In other states, Nevada, Florida, California, there are suits that are in the form of class actions on the basis of, you know, I think in the Florida case, the class that the lawyers are seeking to certify are small businesses and individuals likewise in California. So they're all brought in Federal Court and they're based on state law. I mean, the attorney general in Missouri, and I've looked at that document and it's fairly well drafted, is basing his argument on violations of Missouri law regarding being a public nuisance or mishandling dangerous activities or breach of duty, those common law tort principles. And you mentioned, you sound like there's like four states that you mentioned, and the people that are aggrieved are Americans, I guess, and the plaintiffs. Can you clarify that? I mean, are the plaintiffs government entities or attorney general, or who are, what's the name of the plaintiffs in these cases? Right. Well, in the case of the Missouri action, the plaintiffs of the attorney general of Missouri as representative of the people of Missouri. And this morning I was taking a quick look at some of the class actions, and there are named individuals and businesses for the plaintiffs in the class actions. All US entities. Yes, to my knowledge, they are all US people or entities. Yes. Okay. Now, all right. So you have several states, it sounds like government entities of some sort, and they're all brought in federal court. Is that right? That's my understanding. Yes. But they may be seeking remedies under state law, which, okay. All right. And who are the defendants? Well, the defendants vary. I mean, if you look at the, I'm looking now at the Missouri action, I could read off a list. The defendants are the People's Republic of China, the Communist Party of China, National Health Commission of the People's Republic of China, Ministry of Emergency Management of the People's Republic of China, Ministry of Civil Affairs of the People's Republic of China, People's Government of Hubei Province, People's Government of Wuhan City, Wuhan Institute of Virology, and the Chinese Academy of Sciences. And that's the Missouri action. I noticed that the class actions are also including the People's Liberation Army. So I don't know how that all fits in. Wow. And so it looks like there's kind of a division in the defendants between governmental entities and maybe, I'm not sure if they're private entities, but not non-governmental entities of some sort. Would that be accurate? I'm sorry that there's a kind of a division between in the defendants between governmental entities and maybe semi-governmental. Yeah. Well, you know, that's a good question, but it's so hard to even distinguish that in China because many, if most of the many businesses are controlled by the government. So I would say I would characterize it as, yes, an action against the authorities in Beijing plus their agents. Okay. And you said that Missouri is not a class action, right? Is it? That's my understanding. It's brought in the name of the state of Missouri, Eric S. Schmidt, in his official capacity of Missouri Attorney General. But the rest sounds like class action. And you know, the class actions present their own challenges that are slightly different from the challenges that the Missouri State Attorney General has. Okay. Explain that a little bit, please. Well, I mean, there are a number of procedural hurdles, which we can talk about, including, you know, jurisdiction and the standing of people to sue. And those issues are dealt with by the Missouri Attorney General. The added issue in terms of the other state class actions is how do you get the class certified? In other words, there's an initial problem in terms of describing the class of individuals who are aggrieved because everyone has kind of suffered their own kind of injury. And it may simply, I think there's a requirement in class actions, I'm not an expert in that field, that the class be manageable, that it's easily identifiable, that they face the same kind of harms and things of that sort. And so the lawyers for the class action suits will have to convince the court that the people that they are representing or want to create a class out of that it's a manageable group. I'm not saying that's impossible, but it's an additional challenge. Okay, so can you describe what the allegations and claims are being made? Can you generalize? Yeah, let me, I think I can best do it in a nutshell by reading just very briefly one paragraph from the Missouri Attorney General. Missourians from the COVID-19 pandemic that has disrupted the entire world an appalling campaign of deceit, concealment, misfeasance, and inaction by Chinese authorities unleashed this pandemic. During the critical weeks of the initial outbreak, Chinese authorities deceived the public, suppressed crucial information, arrested whistleblowers, 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. Defendants are responsible for the enormous death, suffering, and economic losses they inflicted on the world, including Missourians, and they should be held accountable. That's it. Wow, okay, and and I guess the class actions might have similar... It's a similar language, yes. Yeah, and are they citing any law or is this, I mean, is there a legal basis or what law are we operating under? I mean, is this Chinese or American? Yeah, it's a murky, I mean, there's all excellent questions. It's a murky area and I think actually this litigation is going to result in some new doctrines or new precedences being created, but right now they are filed in federal district court and they're based on ordinary tort claims, you know. American negligence. Yes, American negligence, recklessness, damage to property, breach of duty, wrongful death, and there are, in terms of my current knowledge, I'm not aware of any international conventions that directly apply, but that's, it's firmly based on common law, let's put it that way. Common law, okay, and do they, in these complaints, do they cite any specific evidence or are these just general allegations? Well, no, they make in the Missouri, the Missouri action lists a whole sort, assortment of pieces of evidence gleaned from newspapers and media outlets and things of that sort, so there are allegations of the specific acts that occurred in Wuhan that they say caused pandemic. That's unsure. So, that's, there are allegations, specific allegations, yes. Okay, and they cite evidence and I guess the evidence, you know, you discussed a number of different defendants and they, are they saying the evidence is applicable to all of them or did they have any specific, well, I think, patients against specific defendants? Well, I think the claim is that the Communist Party directed or supervised all of the other defendants and then the actions, focus on the actions of the particular other defendants. For instance, the Wuhan lab, there's an allegation that there was, there were safety lapses in that lab and that those were ignored and so that's part of the lawsuit as well, that there were complaints in the lab, that there were complaints about what the mayor of Wuhan did in terms of allowing large meetings to take place even after it was apparent that the city was in a epidemic situation. So, there are specific allegations that come from mostly news accounts. Okay, we're going to take a break. Yes. We'll come right back and talk about some of the roadblocks. Okay. These lawsuits may face. So, we'll take one minute break. We'll be right back. Aloha. I'm John David Ann, the host of History Lens on Think Tech Hawaii. History Lens deals with contemporary events and looks at them through a historical perspective or what we call a History Lens. The show is streamed live on ThinkTechHawaii.com. Thanks so much for watching our show. We look forward to seeing you then. Mahalo and Aloha. Rob Preck, we are talking about the recent COVID-19 pandemic lawsuits that have been filed in the United States against China defendants, various defendants. And Rob, what are some of the practical problems that we're facing with these lawsuits? I mean, service, jurisdiction, please, what are the plaintiffs facing from a practical standpoint? And first, I mean, how do you serve these people? And then we'll get into jurisdiction and whether we can even go after some of these. Right. Well, on the question of service, that's a relatively simple matter because that's specified in the statute dealing with foreign sovereign immunity. There is a separate statute that we'll talk about that authorizes lawsuits in the case of certain exceptions to the general rule. Okay. But service, ultimately, if, say, the state or lawyers can't find someone in the U.S. representing the Chinese government to accept service of papers, ultimately, they can send copies to the U.S. State Department of their complaint. And the State Department will convey it to their counsel, their diplomatic offices in China, and then the diplomatic offices will transmit the legal papers to the appropriate ministry. I think this would be ministry of foreign affairs. So services is does not strike me as a big problem. I mean, there are a couple of problems that have been raised by a number of American lawyers as being very big bars to these lawsuits. The first, of course, is the doctrine of sovereign immunity. Yeah, let's say the idea, right. The idea is that private citizens cannot sue the federal government. And then by virtue of the statute called the foreign sovereign immunity act, the argument is that the act prevents citizens from suing governments. But the thing to remember about sovereign immunity is that sovereign immunity is not an inherent limitation on judicial power. It is nowhere stated in the Constitution. It's really a creation of congressional laws and the current foreign sovereign immunity statute, although it allows for limited exceptions against the general rule that private citizens cannot sue foreign governments. There are important exceptions to that. And one of them, for example, was recently the law was amended to permit lawsuits against foreign governments for acts of terrorism or for facilitating acts of terrorism. So as it currently reads, obviously, and based on the evidence of what the lawyers are alleging, I mean, one lawyer in Florida is alleging that this is tantamount to a terrorist act, allowing the escape of these deadly viruses from Wuhan. But I think that's a pretty far-fetched argument. The other lawsuits, the Missouri lawsuit, is relying on certain exceptions regarding if a government acts as a business entity, then it should not be exempt from liability. In other words, if a foreign government had a factory across the border from the U.S. and owned that factory and the factory spewed forth pollution that killed livestock in Texas or something like that, then the foreign immunity statute would not bar lawsuits. Now, given the current state of the law, I think it's going to be a tough sell for the Missouri Attorney General and others to claim that this case against China falls within either the exception for business activities or the exception for terrorist acts. But having said that, this law can easily be amended. A new exception could be created, for example, the public health exception. And Congress, and indeed there are several bills before Congress that would amend this act so as to allow lawsuits and cases where governments recklessly engage in acts that produce public health crises. I think it's very likely, given the political climate right now, that the foreign immunity statute will be amended and that the lawsuits can go forward on jurisdiction grounds. And are these amendments in Congress, I mean, are they a result of the COVID-19 pandemic? Yes, my understanding is yes, they have been introduced since March and April and I think specifically as a result of the pandemic. But putting aside the jurisdictional question, let's assume that people are allowed through the courtroom door. Let's assume just for a moment that either courts or Congress allows citizens or states to bring actions against China for recklessly endangering the health of Americans. There's still this big, big problem of proof, causation. And the problem is that, look, you can allege all the bad acts you might want to in terms of what happened to China. And it includes not adhering to international guidelines for health, lax safeguards at the lab, suppressing evidence of the spread of the virus, not telling the WHO that there was human-to-human transition, all these things. You can list them, but just the fact that China engaged in these actions doesn't mean that those actions caused the damage in America. In other words, there's no proof whatsoever at this point that had the Chinese government behaved completely differently, had it had great safeguards in the Wuhan lab, had it promptly told the world about this pandemic, there's no proof that it would have made any difference. Now, there may be such proof, but the documents that I've looked at, the Missouri complaint and the class actions, don't show a causal connection between the Chinese actions and the damage is done here. We're asked to assume that based on the bad acts of China, that that resulted in these damages to the world. But it can't be so that the causal connection has to be shown. And I hear you also saying that there's negligence, and then after the negligence, they didn't do enough, which is kind of a failure to act, but is there any allegation that they intentionally caused this? Well, that's really far-fetched. Yes, there are allegations. There are some people in America who believe that. In the complaints? No, no. Well, the closest we come to that is in the Florida complaint where the lawyers are arguing that what China did was a kind of terrorist act. So, yes. So, I mean, that requires a very high level of proof, not just negligence, but reckless disregard for the dangers and things of that sort. But even at the low level of proof, just showing negligence is going to be difficult, because all the scientific studies I've seen show that the virus can be transmitted by asymptomatic carriers, right? That it's extremely transmissible. So, I think the problems of proof at trial are going to be a greater hurdle for relief than the sovereign immunity doctor. Let's talk, in a few minutes we have left, just generally. How have these lawsuits affected the U.S.-China relationship? Have you heard reaction from China? Has there been any retaliation? Where are we going just generally? You file a lawsuit against somebody, you get a reaction. What have you seen? What is on the right? Well, as you might forget, the Chinese government, the Ministry of Foreign Affairs did a press conference and dismissed these lawsuits. They called it, quote, very absurd, that there were no factual basis, and the foreign ministry implored the U.S. government. The U.S. government should dismiss these vexatious litigations. So, the Chinese reaction has not been positive. One thing I should say is that what's kind of feeding these lawsuits is China's refusal so far to submit to an independent investigation about the origins and the spread of the virus. I think the government, the Chinese government, could take the wind out of the sails of these lawsuits if it had agreed to some kind of international tribunal. And there is precedent for that. There was, for example, there was a Canadian factory in the 1920s that produced a pollution that hurt farmers in the state of Washington, and the government of Canada and the government of the U.S. set up an arbitration tribunal to analyze the scientific evidence and to put forth appropriate reparations. So, I think China could go a long way to neutralizing demand for people to have their day in court in the U.S. if they agreed to an investigation, but so far they have not. They'll take a little responsibility for what happened. And be in front of it, that might be a way to maybe resolve, maybe to mediate the problem and maybe avoid some of these lawsuits and a way to achieve the goal. And by the way, what are they asking for in these lawsuits? What are they seeking? Damages, I guess? Yes. Basically, they're very open-ended. They're asking for any damages permitted by law for the destruction of the economy of the various states and the deaths of people and the undermining of businesses. I mean, so we're talking trillions of dollars if it ever reached that point. And is the motivation strictly money in this? Is there any implications if there's something more? No, I do think there's a genuine sense of people feeling aggrieved. They don't have work. They can't feed their kids. The deaths of loved ones. So, no, it's this very human instinct to want justice for wrongs that have been inflicted on you by the reckless activities of another person or entity. So there is a call for justice here. Okay, now we have a minute left. Where are these cases going? Where do you see these lawsuits ending up or amending? Where do we go forward? Are there going to be more lawsuits? Yes, I would expect that there will be more and more lawsuits. I mean, the number of people harmed is potentially immense. And so I expect states and law firms to bring these lawsuits and they're going to multiply. I would expect in the short term that Congress will, or at least I think it's plausible in the short term, that Congress will amend the Foreign Immunities Act to permit lawsuits based on the reckless conduct of governments that result in damages to American citizens. I expect that to happen in the next month or two. And after that happens, then potentially the lawsuits will agree on a kind of a common strategy or rationale and they'll go forward. That said, though I think the lawsuits still face a very steep challenge in terms of how do you prove causation? Whatever the Chinese did that was bad, how did those acts directly result or even indirectly resulted on deaths in America? It's a very difficult causation argument to make. And thus far I haven't seen anyone able to do that. Perhaps experts in the future will be able to identify how it transmitted to the U.S. and can establish causation, but right now I don't see it. Well, Rob, that sounds like the subject of another program and we'll be hopefully looking forward to talking to you again about that. And thank you very much. I appreciate your knowledge and expertise and insights. And these cases are very interesting. And I think as you and I may agree, we could have a law school class that would go for a year just talking about these cases. But thank you very much. Thank you very much for having me.