Five Things Every Long-Term Care Facility Should Know When Facing a Class Action

As COVID-19 disproportionately impacted our most vulnerable populations, long-term care facilities (LTCFs) were placed in the unenviable position of triaging around the novel virus, combating supply shortages, and coping with illness-induced staffing fluctuations. Given all the attention these facilities received throughout the pandemic, litigation trends suggest plaintiffs’ lawyers may be stockpiling claims or gearing up for class actions focused on COVID-related tort theories and/or right of sepulcher claims. Here are five things any LTCF should know if facing a multi-plaintiff case or class action:

• Calibrate litigation holds accordingly. LTCFs are accustomed to single plaintiff lawsuits. Such suits make for manageable litigation holds focused on a single resident’s file. By contrast, a COVID-related class action could well focus on overall day-to-day management of the facility, including COVID-related policies, the decision-making leading up to adoption of the policy, and facility-wide impacts of COVID. Accordingly, the litigation hold may well have to be far more extensive than what is normally deployed. To avoid potential spoliation issues, due consideration should be given to tailoring the litigation hold.
• Jurisdictional Considerations and Early Deadlines. Though litigation against long-term care facilities often proceeds as a matter of course in state court, the Class Action Fairness Act provides opportunities to remove cases to federal court, as does the PREP Act. However, strict deadlines for removal exist. Accordingly, any LTCF should give immediate consideration to its preferred forum for litigating these claims.
• Answer v. Motion to Dismiss. Single plaintiff negligence claims are often fact-intensive and difficult to dismiss at the early stages of litigation. It is not uncommon for a defendant to decline to file a motion to dismiss (or its state analog). However, cases challenging broad-based policies and practices, particularly where (as here) those claims may have interplay with statutory regimes (e.g., the PREP Act), may provide grounds for immediate dismissal.
• Discovery. Discovery in multi-plaintiff or class actions can be sprawling. It may involve thousands, if not millions, of documents. Securing a vendor early on and devising a document collection and production plan as soon as possible is advisable.
• Litigation Strategy. Whereas single-plaintiff cases involve jockeying with plaintiff’s counsel around the merits of the claims, the main event in class action litigation is often class certification itself. That’s because by aggregating dozens, if not hundreds or thousands, of claims, class counsel often view the class vehicle itself as creating significant leverage. If that leverage is lost, there is typically little incentive to move forward with the Named Plaintiffs. Thus, any LTCF facing class litigation should develop a litigation strategy at the outset that focuses on class certification.

Orrick is actively representing numerous companies in COVID-related litigation, including class actions and suits targeting LTCFs. If we can be of assistance, please reach out to Marc Shapiro or Andrew Silverman.