Holding China Accountable

I am not a particular fan of the American Trial Lawyers Association (ATLA) even though I belonged to it for a short while when I was in private practice.  I quit back then because it provided little in what I needed for my practice.  I am emboldened with the wisdom of that decision given that the ATLA has become yet another political organization to promote the Democrat/Liberal/Socialist agenda.  All of that aside, there is a significant opportunity for lawyers in general and trial lawyers in particular to perform a huge public service in the aftermath of the COVID-19 pandemic – and an opportunity for which they can be richly rewarded.  But only if they can put aside their embrace of Trump Derangement Syndrome.

China – well the Chinese Communist Party – unleashed the COVID-19 virus on an unsuspecting world and compounded the damage done by withholding critical facts and data needed to effectively control the spread of the virus – a condition that continues yet today.  Over 50,000 people have died in America as a result.  Countless others have been hospitalized and/or suffered treatment in quarantine.  The economic loss to individuals and businesses has not yet been calculated but will run into the tens of trillions of dollars.  The costs to local, state and federal governments likewise runs into the trillions of dollars.  With the exception of two world wars, never has the world experienced such loss – solely due to the negligence and intentional acts of the Chinese government.

Bringing a lawsuit against China is not without its hurdles.  As a sovereign nation China enjoys “sovereign immunity” as do its officials when acting in their official capacities.  (For those forced to endure a teachers union led education in the Portland public schools, sovereign immunity is an ancient legal doctrine which protects government officers and government treasuries from liability.)  Most states have abandoned sovereign immunity but the doctrine is still applicable to sovereign nations.

However, the terrorist attacks by Islamic extremists in New York City, Arlington, VA and a field in southwest Pennsylvania on September 11, 2001, wrought changes to the status of sovereign immunity when applied to foreign nations who have engaged in or abetted terrorist acts.  Known as the Justice Against Sponsors of Terrorism Act (JASTA), it created an exception to the Foreign Sovereign Immunity Act, by waiving sovereign immunity in certain instances:

The result has been that plaintiffs are now allowed to file and pursue litigation involving Saudi Arabia, the royal family and a variety of members and former members of the Saudi government for their complicity in the terrorist attacks.  Along the way, discovery is going to embarrass the hell out of former Presidents Bill Clinton, George W. Bush and Barack Obama, along with members of their administration (including Hillary Clinton).  There may even be disclosures of the amount of money flowing from the Saudis to the Clintons.

But be that as it may, these lawsuits will provide a map forward for similar litigation by families of the victims of COVID-19 against China, the Chinese Communist Party and senior members of the government and Party.  Along the way it may prove embarrassing to the World Health Organization (WHO), American politicians and members of the press who are married to, involved with, or dependent on lobbyists for China or its government controlled entities.  (You may want to check on CBS White House correspondent Paula Reid. Washington D.C. is riddled with similar instances where the spouses, playmates, or family members of politicians are a part of the press or lobbyist corps that swarm the halls of government – and they never acknowledge their conflicts when acting in their official capacities.)

But the lawsuits against China can have a whole different twist.  Any lawsuit will be able to explore the creation of the virus, the release of the virus, the international transmission of the virus as well as the acts or omissions that aided the creation of the pandemic, including those acts or omissions that occurred in an attempt to cover up China’s culpability.  More importantly, the lawsuits have a target rich body of assets from which to satisfy the judgments without requiring the cooperation of the Chinese to gain access.

Currently China holds about $1.1 Trillion in U.S. debt.  A judgment against China can be executed upon by seizing that debt and a federal court has jurisdiction to order that – including ordering the United States Treasury to transfer ownership to the successful plaintiffs.  It’s basically a “two-fers” – the plaintiffs get a relatively secure asset and the United States eliminates any leverage China may have had from holding our debt.

That’s it pure and simple – a winnable series of class action lawsuits, deep pocket defendants and a reliable and stable asset from which to recover any judgment.  But since the ATLA is wholly in league with the Democrat Party and its liberal/progressive/socialists leaders you can expect them to make it too complex by seeking to tie President Trump to the Chinese like the Democrats tried to tie Mr. Trump to the Russians on behalf of Hillary Clinton.  It will be a mess and by the time a case is brought to trial and appeals exhausted, the Democrats may well be back in charge and they can give away the primary asset just like they did with the Iranians (Obama’s $150 Billion give-away in order to secure the much maligned Iran nuclear deal) and deny claimants any reasonable access to fulfill judgements.

My suggestion is that any potential plaintiffs look to the conservative public interest law firms like Judicial Watch, the Goldwater Institute, the Pacific Law Institute or the Federalist Society who have a reputation for achieving justice without toadying to a political party.