• April 15, 2020

We have previously posted about “the enigma of foreseeability.” The COVID-19 pandemic gives us another chance to challenge the superficially simple concept of “foreseeability.”

On the one hand, it is obvious that very few of us could have predicted the COVID-19 pandemic even six months ago. It was therefore “unforeseeable,” right? On the other hand, it is just as obvious that, six months ago, all of us were aware that pandemics have occurred throughout history and would continue to occur although the precise timing and details were unpredictable. It was therefore “foreseeable”?

So, was the COVID-19 pandemic “foreseeable”? 

The answer, as far as all experienced U.S. lawyers are concerned, is “Who’s asking”? Or, in other words, what is the context in which the question is being asked?

This issue is going to come up quite a lot these days as parties dispute obligations owed and whether the pandemic excuses performance.

We note a recent class action settlement in which the defendants sought a modification of their financial obligations due to the “unforeseen” pandemic and its dramatic and destructive impact on the defendants’ financial situation. Sr. U.S. Judge Donovan W. Frank (D. Minn.) rejected the effort. Judge Frank made it simple; he ruled that it was beyond the authority of the Court to make any changes where it had already ruled the settlement to be “fair, reasonable, and adequate.”

This may or may not be a victory for the class action plaintiffs (and their counsel). The defendants suggested that, if they were held to the obligations of the settlement, the result would be a bankruptcy filing (here at pp. 4-5). If the defendants make good on the threat, the class action plaintiffs (and their counsel) might have been wiser to have agreed to stretch out the payment terms. 

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