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Tyson Foods Takes COVID Liabilities Fight with Dead Workers’ Families to SCOTUS: Trump ‘Demanded’ Factories Stay Open, Company Says


Protesters gather in front of the Supreme Court in 2015 as Tyson Foods, Inc. faces litigation.

Tyson Foods Inc. filed a petition for certiorari Friday with the Supreme Court of the United States asking the justices to rule that it was operating at the behest of the federal government when it kept its meat plants open during the early weeks of the COVID-19 pandemic. Tyson says that then-President Donald Trump‘s April 2020 Executive Order essentially required it to remain open during the exceptionally dangerous period — and that the order should shield Tyson from state lawsuits filed by the families of workers who died from COVID-19.

Attorneys for Tyson recapped the dire situation at the start of the pandemic:

In the early days of the COVID-19 pandemic, disruptions in supply and high consumer demand threatened to create national food shortages. The federal government responded by enlisting private industry to combat that threat by directing meatprocessing facilities to remain open in accordance with CDC and OSHA guidance if at all possible. That federal direction was eventually formalized in an Executive Order instructing meat-processing facilities to continue or resume operations consistent with federal guidance, notwithstanding contrary state or local direction.

After four Tyson employees died of COVID-19, their estates sued Tyson in Iowa state court. They alleged that Tyson violated it duty under state law by operating its plants and exposing its workers to the virus. Tyson removed the case to federal court and argued that its actions were directed by the federal government.

The plaintiff families appealed the removal, and the U.S. Court of Appeals for the 8th Circuit sided with them. The case was remanded to state court on the basis that there had not been enough “federal direction and supervision” to warrant the case proceeding in federal court.

At the heart of the issue is how and why Tyson acted to keep its plant open. Food suppliers like Tyson had not been expressly directed to stay open, but were urged to keep operating by both the president and vice president.

Moreover, at the time, President Trump said, “We’re going to sign an executive order today, I believe, and that’ll solve any liability problems.”

Legally, though, things had not been so simple during a time when pandemic-mitigating regulations varied wildly from one jurisdiction to the next.  In its brief to the Court, Tyson argued that during  “the throes of the greatest national health crisis in a century, ensuring that the nation’s food supply remained secure ranked high among the federal government’s priorities.” However, because our country is a “system of free enterprise and federalism, the federal government could not accomplish that critical task alone.” Rather, Tyson argued, the federal government depended on the “cooperation of private companies” like itself. These companies faced a predicament in that in the early days of the pandemic, they were “receiving contrary directions from competing authorities,” according to the petition. On one hand, Tyson said, “the federal government was directing Tyson to continue to produce food to keep grocery stores nationwide stocked,” while at the same time, “state and local authorities were demanding that Tyson shutter its facilities.” Tyson said it obeyed the federal government only to face lawsuits for its violation of state law.

It now argues, “Tyson should not have to defend actions taken at the behest of the federal government against the contrary requirements of state tort-law in state court.”

The 8th Circuit ruled that because the federal government is not typically engaged in the production of meat, Tyson was not “acting under” federal authority when it kept its plant open. Tyson now argues that the ruling must be overturned, because it is out of step with the basic logic underlying this situation. From the petition:

No one can seriously think that the federal government would have stood idly by if private industry were not up to the task of maintaining the food supply, especially when the President issued an Executive Order designed to shield private industry’s efforts from state and local regulations.

Tyson argued that it is immaterial that it was not directly forced by the federal government to stay open, because it stayed open in an effort to assist the federal government in its clearly-articulated objectives. “Nothing in the law or common sense requires private entities to resist government entreaties for assistance in the height of a crisis and to insist on a formal, coercive order,” argued Tyson.

In its brief, Tyson frames the issue at hand as one that is “profoundly important.” According to Tyson, state and local shutdown regulations “began to interfere with that national imperative,” when then lead Trump to issue an Executive Order which demanded that plants stay open. Tyson asserts that if it is made to answer in state rather than federal court for the deaths of its workers, the result would constitute a “retroactive imposition of state-law requirements” which would render the president’s order “illusory.” The incentives to cause the same havoc in the future, says Tyson, “will be perverse.”

Tyson says that it produces more than 20% of the nation’s daily supply of meat and poultry, feeding 60 million people each day, and that it employs over 120,000  workers at its domestic processing facilities.

In its brief, Tyson says that its obligation to the federal government went well past the theoretical. It references a conference call held on March 15, 2020, just two days after Trump declared the pandemic a national emergency. On the call was the president along with food and grocery industry leaders, including Tyson’s CEO. Tyson says that during the conversation, Trump confirmed that Tyson and others would be “working hand-in-hand with the federal government as well as the state and local leaders to ensure food and essentials are constantly available,” and that food suppliers would “work 24 hours around the clock, keeping their store stocked.”

Days later, detailed the brief, Trump issued guidelines for managing the crisis during which he said food workers bore “special responsibility” to remain operational. Then-Vice President Mike Pence made similar public remarks cited in Tyson’s brief. “He not only thanked food industry workers for their ‘great service to the people of the United States of America,’ but also expressly emphasized that the United States needed those workers ‘to continue, as a part of what we call our critical 15 infrastructure, to show up and do your job,’ Tyson wrote to the justices. Furthermore, says Tyson, just a week later, “the Secretary of Agriculture issued a letter to Tyson’s CEO, Noel White, followed by another letter to industry stakeholders broadly, instructing meatprocessing plants to either remain open or submit written plans to reopen.”

Tyson argues that federal law specifically contemplates the situation in which someone acting under the authority of a federal official violates state law and is then sued for that violation. “[P]rivate individuals enlisted to support federal efforts” who are acting “without the formal trappings of a federal badge” may well be the people “most in need of a federal forum” for the disputes requiring adjudication, says Tyson.

Adam Pulver, attorney for the plaintiff families, provided the following statement to Law&Crime via email:

Two courts of appeals have unanimously rejected Tyson’s arguments that it was actually doing the federal government’s bidding when it subjected workers to dangerous conditions, resulting in tens of thousands of COVID cases among its workforce. As the Eighth Circuit recognized, the facts “tell[] a different story” than the narrative Tyson’s lawyers are attempting to construct.  We expect Tyson’s  “Henny Penny” request that the Supreme Court step in to address a factbound question with no circuit split will be rejected.

Attorneys for Tyson Foods Inc. did not immediately respond to request for comment.

[image via Mark Wilson/Getty Images]

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos