With regard to the FCA case, just to clarify (and the professor should have known this)….
The FCA has accepted that covid-19 does not cause damage to property.
The FCA case is purely focused on whether non-damage BI claims are valid.
It is therefore NOT a “one-way ratchet”.
Thank you Curious Brit. You are absolutely correct about the intent of the FCA case. The error is not the professor’s. It was mine. The article has been corrected.
Me thinks thou doth celebrate too much? It was entirely predictable that there would be preemptive victory laps taken by whichever side prevailed first, and that there would be a lot of attempted amplification and replication of a single decision in a single case.
But that’s not how this works. That’s not how any of this works.
Leaving aside the prospects for appeal, “direct physical loss” in the business interruption context is not a new manifestation of the Novel Coronavirus. That phrase has been interpreted by many courts, in many jurisdictions, in many contexts, before this (sometimes in closely analogous situations).
Prof. Baker asserts that the pleading was “defective” because the complaint alleged that the business was shut down (by the governor’s stay-home order) and did not allege physical damage. It seems to me that the pleading accurately stated the facts. Is Prof. Baker suggesting that the pleading should have alleged physical damage, even though that is not true? It would not be “defective” but it would be false and would subject the attorney to possible sanctions.
Leave it to a lawyer to find the cloud around the silver lining. The judge made one of the least obscure (and logically welcome) rulings, and he brings up the plea.
With regard to the FCA case, just to clarify (and the professor should have known this)….
The FCA has accepted that covid-19 does not cause damage to property.
The FCA case is purely focused on whether non-damage BI claims are valid.
It is therefore NOT a “one-way ratchet”.
Thank you Curious Brit. You are absolutely correct about the intent of the FCA case. The error is not the professor’s. It was mine. The article has been corrected.
Me thinks thou doth celebrate too much? It was entirely predictable that there would be preemptive victory laps taken by whichever side prevailed first, and that there would be a lot of attempted amplification and replication of a single decision in a single case.
But that’s not how this works. That’s not how any of this works.
Leaving aside the prospects for appeal, “direct physical loss” in the business interruption context is not a new manifestation of the Novel Coronavirus. That phrase has been interpreted by many courts, in many jurisdictions, in many contexts, before this (sometimes in closely analogous situations).
Prof. Baker asserts that the pleading was “defective” because the complaint alleged that the business was shut down (by the governor’s stay-home order) and did not allege physical damage. It seems to me that the pleading accurately stated the facts. Is Prof. Baker suggesting that the pleading should have alleged physical damage, even though that is not true? It would not be “defective” but it would be false and would subject the attorney to possible sanctions.
Leave it to a lawyer to find the cloud around the silver lining. The judge made one of the least obscure (and logically welcome) rulings, and he brings up the plea.
Look at the facts and policy language instead.