Germany, USA, COVID-19 and class action - Read Prof. Hess' opinon in German media Tagesschau

25 September 2020

A lawyer from Lower Saxony intends to file a class action for damages in the US against the German COVID-19 measures. In Germany, there is no class action per the US model but a model declaratory action, not suitable for COVID-19 damages of companies.

The lawyer alleges the tests developed at the Charité Hospital in Berlin are not capable of detecting infection with SARS-CoV2 viruses. He directs the action for damages against the virologist Prof. Drosten of the Charité, the director of the Robert Koch Institute Prof. Wieler and the WHO, who deemed to be personally responsible for the damage suffered.

Prof. Hess was asked to provide his opinion. He doubts the chances of success for the following reasons:

1) According to a US Supreme Court landmark decision, class action lawsuits brought by foreign parties for foreign offenses are generally not accepted in the US;

2) German law needs to be applicable in the first place. The German context would also exclude application of US law;

3) If German law is applicable, the Civil Code would exclude liability for advice;

4) Even if a US court awards damages, a German court must accept the US judges' jurisdiction for the damage claims to be enforceable in Germany.
Prof. Hess stressed the underlining problem with this case: class actions in the US could preclude the possibility of going to court in Germany if lis pendens is accepted. If a US lawsuit is dismissed after years, claims could become time-barred under German law.

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