8th Circuit court in US skpetical of Tyson’s bid to keep COVID-19 claims in federal court

Judges on a the 8th Circuit Court of Appeals panel appeared leery of Tyson Foods Inc’s claim that it was acting under the federal government’s direction when it kept an Iowa processing plant open during the early weeks of the COVID-19 crisis.
calendar icon 29 September 2021
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Tyson is appealing a federal judge's ruling that said the company was not acting under a government mandate, and so wrongful death claims by the families of four Tyson workers who died after contracting coronavirus should be heard in Iowa state court.

Reuters reports that during oral arguments on 23 September, 8th US Circuit Court of Appeals Judges Jane Kelly and Ralph Erickson seemed to agree, pressing Tyson's lawyer, former US Solicitor General Paul Clement, now at Kirkland & Ellis, on what type of direction the company was taking from the government.

"You've used words like 'encouragement' and 'should stay open,'" Kelly said to Clement. "That doesn't sound like the same thing as being under the direction of a federal officer and assisting the government in doing something [for which] it would otherwise be responsible."

Clement told the three-judge panel that Tyson's relationship with the federal government fundamentally changed after a national emergency was declared in March 2020 and federal officials strongly encouraged meat processing plants to remain open.

"Others were being told to stay home and shut their doors," Clement said. "We were being told we have a special responsibility to maintain our operations."

The appeal involves two consolidated lawsuits filed last year by the families of the four Tyson workers, who claim the company’s failure to implement social distancing and refusal to keep sick workers home caused their relatives to contract COVID-19.

Tyson removed the cases to federal court. State courts and juries are typically seen as more favorable to plaintiffs.

Former President Donald Trump on April 28, 2020, issued an executive order directing meat plants to remain open, but all of the conduct at issue in the lawsuits took place earlier.

Tyson says that nevertheless, a law known as the federal officer removal statute that allows state-law claims to be heard in federal court when the defendant “was acting under the direction of a federal officer" applies to the cases.

US District Judge Linda Reade in December disagreed and remanded the cases to state court.

The US Department of Justice on Thursday backed the plaintiffs, appearing at the arguments to urge the 8th Circuit panel to uphold Reade's decision. The plaintiffs are represented by Adam Pulver of Public Citizen Litigation Group.

The cases are Buljic v. Tyson Foods and Fernandez v. Tyson Foods, 8th US Circuit Court of Appeals, Nos. 21-1010 and 21-1012.

Read more about the case here.

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