Clashing with Democrats, Republicans want to raise standard of proof on COVID-related lawsuits against companies

Republican leaders are making added liability protections for businesses, schools and health-care providers a key plank of their $1 trillion proposal for another coronavirus relief bill.

Now it’s a question of whether that shield turns into a stumbling block during negotiations with Democrats.

The Republicans’ HEALS Act would authorize a new round of direct checks, 70% wage replacement in supplemental unemployment benefits, and a liability shield that would let consumers and employees successfully sue for coronavirus exposure only if they can prove “gross negligence” or “willful misconduct.”

When it comes to COVID-19-exposure lawsuits, the proposed shield raises the standard of proof from what’s applied in ordinary tort cases, with meritless lawsuits subject to a fine of up to $50,000. Anyone who sues for exposure has to list all the people and places they visited, and all the people who visited them, in the two weeks before the onset of symptoms.

The added protections would stay in place until October 2024. They would also apply to nonprofit organizations and places of worship.

The coronavirus pandemic has unleashed a wave of lawsuits, but liability shield opponents say personal-injury cases account for a small portion. Shield proponents say that’s irrelevant because businesses need the protection before they’re served with a potentially ruinous lawsuit, not afterwards.

The HEALS Act is the Republicans’ answer to the Democrat-backed $3 trillion HEROES Act, a bill with no extra liability protections. Democrats and Republicans passed the $2.2 trillion CARES Act in March.

‘We’re not going to let trial lawyers throw a party on the backs of the frontline workers and institutions.’

— Senate Majority Leader Mitch McConnell

“We’re not going to let trial lawyers throw a party on the backs of the frontline workers and institutions,” Senate Majority Leader Mitch McConnell, a Kentucky Republican, said as he announced the HEALS Act earlier this week.

But House Speaker Nancy Pelosi, a California Democrat, has panned McConnell’s insistence on a shield, telling reporters he “doesn’t sound like anybody who wants to have an agreement or anybody who can pass a bill on the floor of the Senate.”

By Wednesday, the sides didn’t seem any closer to striking a deal on any part of a rescue bill.

So is there any middle ground on the rules for coronavirus exposure lawsuits, especially with so much at stake? Some Capitol Hill observers say yes.

‘When you read between the lines, they are saying there’s room for negotiation.’

— Stephen Myrow, managing partner of Beacon Policy Advisors

McConnell and GOP leaders are insisting on the added protections, but “when you read between the lines, they are saying there’s room for negotiation,” said Stephen Myrow, a managing partner of Beacon Policy Advisors, a policy research provider counseling institutional investors. “This not a binary thing of a shield or no shield.”

The sides could agree to things like more nuance in the statute’s language, added workplace safety rules for employees, relaxed proof standards or scrapping the $50,000 penalty, Myrow said. “There’s plenty of wiggle room,” he said.

Don’t miss: Opinion: Your boss wants you back in the office — An employment law expert explains your rights

The real stumbling block is how to proceed with unemployment benefits and direct checks, as well as aid to state and local governments, according to Ed Mills, a Washington policy analyst at Raymond James.

Republicans won’t support another bill without a shield of some sort, but Democrats, “while opposed, have not made this their line in the sand,” he said.

One solution is to give businesses immunity if they notify customers of a potential exposure within a certain time frame. Business should inform customers within 24 hours to avoid a lawsuit and could have a 14-day outer limit for the protection, two professors suggest, but they wouldn’t be protected in cases of gross negligence.

‘There has to be room for compromise.’

— Daniel Rodriguez, professor at Northwestern University Pritzker School of Law

An idea like this navigates between public-health concerns and imperatives to reopen the economy, said Daniel Rodriguez, a Northwestern University law professor who proposed the idea with Daniel Hemel, a University of Chicago Law School professor, in a Washington Post opinion piece.

Businesses have valid concerns about avoiding litigation, Rodriguez told MarketWatch, but customers need protection — and, if necessary, legal recourse. It’s hard enough already for plaintiffs to legally trace an infection to one party and win a case, he noted. “There has to be room for compromise,” Rodriguez said.

The shield might block the ‘vast majority’ of potential personal-injury cases

Republican federal lawmakers are calling for added protections at a time when a handful of states have enacted their own versions of a liability shield. Some companies — and President Trump’s re-election campaign — have also asked consumers to sign waivers. Whether these types of waivers will hold up in court remains an open question, some experts say.

“In the absence of this shield, ordinary tort liability would apply and you could sue for negligence, carelessness and unreasonable behavior, the way most tort suits are brought,” said Kenneth Abraham, a professor at the University of Virginia School of Law.

Plaintiffs can win under the GOP shield proposal if they can show ‘gross negligence’ or ‘willful misconduct.’

The proposal, however, narrows valid coronavirus claims down to “gross negligence,” which is defined as “a conscious, voluntary act or omission in reckless disregard” of legal duties, government guidelines and consequences to others.

It also allows cases alleging “willful misconduct,” which is an act or omission that’s done “intentionally to achieve a wrongful purpose … knowingly without legal or factual justification” and “in disregard of a known or obvious risk.”

Plaintiffs pressing a case typically have to persuade a judge or jury by a “preponderance of the evidence,” a standard that Abraham says boils down to being more probable than not.

But here, plaintiffs would need to make their case by “clear and convincing evidence,” a more exacting standard. The bill also requires plaintiffs to show defendants acted with a state of mind that illustrates the gross negligence or willful misconduct.

All told, Abraham said the proposal could close the door on the “vast majority” of would-be personal-injury lawsuits alleging coronavirus exposure and injury.

Personal-injury cases are a small share of coronavirus lawsuits

But Abraham and others point out there has not been a torrent of personal-injury cases about exposure.

In many outbreak-related lawsuits, it’s businesses that are suing in the wake of costly lockdown orders. They allege their insurance carriers are wrongly refusing to pay a business interruption policy, which supplies income when a business has to temporarily close for a covered event. The sides disagree, however, on whether that applies to a government-ordered shutdown due to a viral outbreak.

In other cases, consumers and college students say they’ve been stiffed over refunds for purchases or tuition.

Insurance cases constitute nearly one-quarter of all coronavirus lawsuits, according to calculations by the American Association for Justice, formerly called the Association of Trial Lawyers of America.

There were 838 insurance related lawsuits filed because of the outbreak, but 161 personal-injury cases, according to one count.

There were 838 lawsuits filed over insurance disputes and 161 personal-injury cases, the organization said, looking through a law firm’s database of more than 3,400 coronavirus-related lawsuits filed by mid-July.

Meanwhile, some high-stakes lawsuits have emerged over alleged exposure and negligence. For example, the estate of a Walmart

associate is suing the retail giant in Illinois state court for wrongful death. Lawyers allege the store was negligent toward employees and customers, and that as a result Wando Evans died in March at age 51.

Walmart says in court papers that the case should be dismissed because the allegations should go to a state worker’s compensation commission, not civil court.

“We continue to mourn the loss of Wando Evans,” a Walmart spokesman said. “While we are sensitive to this situation, we do not believe these claims can be brought in a civil lawsuit.”

The spokesman declined to comment on the GOP shield proposal, but pointed to a letter from the Business Roundtable, an association of CEOs chaired by Walmart CEO Doug McMillon.

‘Narrowly-tailored liability protections will facilitate a safe and effective reopening of offices, retail outlets and manufacturing facilities.’

— A July 21 letter from the Business Roundtable to congressional leaders

The letter, sent before the HEALS Act’s unveiling, urged congressional action on a range of issues. “Narrowly-tailored liability protections will facilitate a safe and effective reopening of offices, retail outlets and manufacturing facilities,” it said at one point.

Meanwhile, Princess Cruise Lines

is defending against cases from passengers who allege they were sickened due to the cruise line’s negligence. In two other cases, families are suing the company for a passenger’s death from the virus.

A federal judge dismissed lawsuits earlier this month from passengers who didn’t contract COVID-19 aboard, but said they were traumatized by the experience on board.

Princess Cruise Lines did not respond to a request for comment.

Liability shield opponents and supporters sound as far apart as negotiators on either side of the aisle.

The proposal “will make it nearly impossible to get ahead of this pandemic and more lives will be lost,” American Association for Justice CEO Linda Lipsen said in a statement.

But Harold Kim, the president of the U.S. Chamber Institute for Legal Reform, an affiliate of the U.S. Chamber of Commerce, which lobbied for the shield, said that “liability protections are not and should not be a partisan issue.”

“Waiting for an onslaught of litigation to happen is like leaving your umbrella at home when there is a storm in the forecast,” he said.

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Buy stock dips because the S&P 500 could ‘easily’ reach 3,500 next year, says Credit Suisse

Our call of the day from Andrew Garthwaite, Credit Suisse’s global equity strategy analyst, who believes the S&P 500 could “easily hit 3,500 on our models” by the end of next year. “The key to me is do you get a big correction? Do you get a fall of more than 10%? I don’t think so and the key is whether you want to buy into dips or sell into rallies and we want to buy into dips,” he tells MarketWatch.

Reason number one to keep buying? “We’re going to get a combination of easy money, easy fiscal, with yield curve control — i.e. fiscal QE [quantitative easing] — until unemployment returns to politically acceptable levels,” he says. Note, the Fed hasn’t committed to instituting yield curve control, though officials have said they are considering it.

And Garthwaite believes real bond yields — 10-year Treasury inflation-protected securities that have been tumbling on COVID-19 worries — are headed to minus 2%. “Why do you own a bond if it’s a non-diversifying return-less risk? As a result of that, we’ve seen flows into equities hold up abnormally well,” he says.

Investors have missed a couple of things, he says, firstly that policy is key, and that worries about a stock market that looks expensive — based on forward price earnings ratios for 2021 — matters less than the additional return they will get relative to falling bonds.

That said, he worries a bit about the disconnect between earnings revisions and equities, and overly optimistic credit spreads that imply a too-low default rate for companies, which could be problematic for stocks. Also on his mind are manufacturing new orders that may have peaked and overall heavy newsflow.

Garthwaite has a last bit of insight, and that is about the big technology stocks, which report earnings on Thursday and have been in the driver’s seat of market gains this year. Question: Will momentum fade if we get a vaccine or the virus recedes?

“I think the way you’re going to get a major rotation would be if there were in response to a strong economic recovery, a sharp rise in bond yields or a major change in policy from the Fed on interest rates, and I don’t see that,” says the strategist.

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Amazon expands its grocery service in head-to-head battle with U.K. supermarkets

Amazon is expanding its online grocery service in a major offensive aimed at winning more customers in the fiercely competitive U.K. grocery market.

The technology giant, which releases its second-quarter earnings on Thursday, is to increase capacity into more homes and offer free delivery to Prime members from Tuesday, in a bid to accelerate growth in one of the most advanced online grocery markets in the world. Prime members had been required to pay an additional monthly fee for Amazon’s

Amazon Fresh service.

Grocery deliveries have almost doubled during the pandemic, with rivals Tesco

and Walmart-owned

Asda all benefiting.

Online grocer Ocado

is also a major competitor. It has pioneered robotic technology for international partners such as Kroger

to catapult them into the online grocery space, pitching Ocado head-to-head with Amazon.

From Tuesday, Amazon Prime members who spend more than £40 ($51) on groceries requiring a two-hour delivery slot will no longer have to pay the add-on fee, which was up to £3.99 monthly. But those wanting a one-hour slot will still have to pay.

Read: Shop workers suffer post-traumatic stress disorder after dramatic increase in violence and abuse

Some analysts have described the move as a game changer, placing Amazon at the center of the battle for Britain’s online food shoppers, who gravitate to the established supermarket brands.

Amazon Fresh will also expand the service beyond London to more areas around the U.K. before the end of the year, with Edinburgh, Manchester and Birmingham likely to be included.

Russell Jones, country manager for Amazon Fresh U.K., said: “Grocery delivery is one of the fastest-growing businesses at Amazon and we think this will be one of the most-loved Prime benefits in the U.K.

“We will keep improving the grocery shopping experience so by the end of the year, millions of Prime members across the U.K. will have access to fast, free delivery of groceries.”

Amazon Fresh includes meat, seafood, produce, snacks and household essentials.

Read:Queen Elizabeth II sells gin made from leaves found at Buckingham Palace after tourist revenues crash

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‘They are still citizens, so they should be able to access that money’: Inside the quest to claim stimulus checks before the deadline

Birmingham, Ala.’s weather is sweltering these days, so Erica Robbins has three important questions for the homeless people she meets at her hydration station: Do they need water? Do they have food? And have they applied for their stimulus check?

“They are citizens just like everybody else and deserve to have access to this fund,” said Robbins, the executive director and founder of Be a Blessing Birmingham who’s helped approximately 150 people get their $1,200 economic impact payment using the Internal Revenue Service’s website.

Robbins started by helping homeless Birmingham residents she knows from meal-distribution routes. Word spread and her work incorporates senior citizens who aren’t tech savvy, but watch the evening news and want to know about their payment.

While Americans waiting to hear whether a second round of stimulus checks will be included in another coronavirus relief package, Robbins and others are trying to ensure people on the margins get their first installment — and they have to do it before an Oct. 15 application deadline.

In Broward County, Fla., Richard Campillo, a retired Nestle

executive, started his own single-person operation to connect homeless county residents with their checks.

Using the address and work space of a non-profit combatting homelessness, HOPE South Florida, Campillo has processed approximately 50 stimulus check applications. He does the work on Fridays, from 10 a.m. to noon and is looking for volunteers to assist him. The line starts forming by 8 a.m.

Some people use the money for a fresh start, like a man who paid off speeding and parking tickets so he could make money driving again, said Campillo, a board member for Broward Partnership, a Fort Lauderdale-based housing and social-service organization.

In Snohomish County, Wash., Penelope Protheroe, founder and president of the Angel Resource Connection, and volunteers have been doing the stimulus-check application outreach long enough to see a change in the people served.

They started with people who were already homeless when the pandemic first struck.

As double-digit jobless rates continued, Protheroe said some people became homeless, had bank accounts and emails, but didn’t make enough money meet income-tax filing requirements, she explained.

‘These are the people closest to the edge that got out first. They were just a breath away from being blown into this homelessness.’

— Penelope Protheroe, founder and president of the Angel Resource Connection

These are the people closest to the edge. They were just a breath away from being blown into this homelessness,” she said.

The organization is located approximately 45 minutes north of Seattle and has processed around 400 stimulus-check applications. Volunteers still get about 20 to 30 people lining up for help when they go on food-distribution runs on Monday and Wednesday.

Some have spent the money on used cars, which Protheroe said they can drive and sleep in. One man used it buy landscaping equipment so he could get work. Others are saving it for when the weather turns cold, she said.

‘We can’t issue payments to people we can’t identify’

The IRS has distributed approximately 160 million economic impact payments, totaling $270 billion, Charles Rettig the agency’s commissioner, recently told senators.

The IRS determines who qualifies and where to send the money by looking at tax returns and who’s receiving benefits through Social Security, Veterans Affairs and the Railroad Retirement Board. That’s a wide swath, but it doesn’t cover everyone.

Someone who’s under 65 and makes less than $12,200 a year has no income-tax fling requirement. A married couple must make at least $24,400 before they have to file a return.

Penelope Protheroe, founder and president of the Angel Resource Connection, helping connect someone with their stimulus check.

Courtesy Penelope Protheroe, Photo by Tom Kirkendall

Up to 12 million people could be missing out on stimulus payments because they aren’t on any of the government records needed to trigger a check, according to the Center on Budget and Policy Priorities. The projection consists of an estimated 9 million people who didn’t file 2018 taxes but had food stamp and/or Medicaid assistance, and another three million didn’t file taxes or get any public benefits.

Many poor people are getting their stimulus checks later, an Urban Institute study suggests. Almost 70% of all people in an approximate 4,300-person survey said they got their payment by late May, but 58.6% of adults at or below the poverty line received it by that time, researchers said.

‘We can’t count people who we can’t identify and we can’t issue payments to people we can’t identify.’

— IRS Commissioner Charles Rettig

The 12 million-person estimate is “significantly overstated,” Rettig told senators at a Finance Committee hearing in late June.

“I’m probably not at liberty to give a number, but I would say it’s overstated multiple times. But part of the difficulty here is we can’t count people who we can’t identify and we can’t issue payments to people we can’t identify,” he said.

The commissioner said he’s reached out to various organizations that help people claim their checks. But the IRS can only do so much. It’s trying to emerge from a tax-return backlog after having to temporarily close most offices during the outbreak.

Obstacles big and small

People who don’t file taxes and aren’t claimed as someone else’s dependent can get the $1,200 payment by completing the IRS’ online non-filer tool. For someone living on society’s fringes, that’s not an easy task, advocates told MarketWatch.

Many libraries — places with free internet access — remain closed. Ninety-nine percent of libraries had limited building access, according to an American Library Association survey of more than 3,800 school and public libraries in May.

Then there’s email and mailing addresses. The non-filer tool needs both, but many homeless people may not have them. Campillo said some of the people he helps can’t remember their email password, because the library’s browser would put it in the autofill.

If non-filers have to establish a new email address, Protheroe said there’s often a two-step authentication process where a code is sent to a phone number. One problem: Many of the people she helps don’t have a phone number where the code can be sent. As a result, volunteers use their phone number to confirm the process.

Two out of 50 organizations agreed to be the mailing address for stimulus checks for Angel Resource Connection

There’s also a question of where the payment should be sent. Protheroe called 50 organizations asking to use their mailing address. Two agreed.

These non-filers have to figure out where to deposit, access and hold onto stimulus cash. They are part of the 14.1 million “unbanked” adults in the country. Instead of check cashiers who charge $50, $60 fees, Campillo steers them to Walmart
where all cashed checks worth more than $1,000 have an $8 fee.

Campillo helped one man who later told Campillo muggers took his stimulus cash. “He’s just a gregarious kind of individual who told the wrong people,” Campillo said. Though IRS has started issuing debit cards, it sent paper checks to the people helped by Campillo.

See also:Don’t toss that junk mail in the recycling bin just yet — it might contain your stimulus check in the form of a prepaid debit card

Someone who misses the Oct. 15 non-filer application deadline doesn’t miss the stimulus check. They’ll need to file a tax return next year to get the money.

But that might be too long of a wait for many.

There was a time when Robbins’ cell phone would start ringing at 7 a.m. with calls seeking stimulus-check help. The call frequency has lessened, but that too could change.

Robbins is not talking up the possibility of another stimulus-check with clients. She doesn’t want to raise expectations if more direct payments don’t materialize. But she’s keeping an eye on Capitol Hill. “We’re on go, and we’re ready.”

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London drops from the top 10 European travel hot spots for the first time as the return to the skies stalls

Buckingham Palace, Madame Tussauds and St. Paul’s Cathedral have all been magnets for tourists visiting London, but new research shows the U.K. capital has fallen off the top 10 list of most booked European cities for the first time ever.

Bookings slumped in June, according to data seen by MarketWatch.

A study by travel research firm ForwardKeys shows the dire state of the travel industry in Europe and the U.S., with bookings so far in 2020 falling by 99.6%.

Read: Closed attractions and travel restrictions put New York City’s $70 billion tourism industry on hold indefinitely

The data come as countries around the world ease lockdowns and restrictions on travel, sparking optimism that the travel and tourism sector may rebound in time for the busy summer season.

But the data paint an alarming picture and suggest hopes of a recovery may be long coming.

From being the most booked destination one year ago, London has fallen to 11th place as bookings have recovered significantly slower than other European cities. The U.K. capital is seeing around 5% of 2019’s bookings, while the average for the European Union is 23%, ForwardKeys showed.

France is leading the way in Europe, with Visiting Friends and Relatives bookings quickly approaching 2019 levels.

“London is one of the world’s most popular cities to visit. So, to see it drop out of the European top 10 tells you just how damaging an impact the COVID-19 pandemic, and the measures to contain it, are having on travel to the U.K.,” said Olivier Ponti, vice president for insights at ForwardKeys.

“However, now that the most restrictive U.K. quarantine regulations are being relaxed, I expect to see London climb back up the rankings soon,” he said.

The data also suggest a fragile recovery for domestic airlines in the U.S. After an initial recovery from early April lows, which saw bookings return to 30% of 2019 levels, bookings have fallen back and are now at just a fifth of what they were a year ago.

The data show the gap between new bookings and cancellations, an indicator of travel demand, reached its widest point ever in the first two weeks of July, with 90% fewer bookings than cancellations.

Globally, bookings have been outpaced by cancellations since mid-March, the longest stretch ever.

Read:American Airlines CEO: ‘Let’s go fly, for God’s sake’

The study by ForwardKeys could worry investors in airlines, hotel groups and tour operators, like British Airways owner International Airlines Group (IAG)

and easyJet

who had hoped for a sturdy recovery for the travel and tourism sector.

IAG stock has fallen two-thirds this year while easyJet is down by more than half, and both have suggested a return to 2019 levels of flying could take until 2023 or 2024.

The Arca Airline Index, which tracks major airline stocks, has gained 44% since March lows when many countries rolled out travel bans and enforced lockdowns, but it is still down by more than 50% for 2020.

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