May 4, 2020

Covering COVID-19 is a daily Poynter briefing about journalism and coronavirus, written by senior faculty Al Tompkins. Sign up here to have it delivered to your inbox every weekday morning.

Half of the country will be at least partially open for some level of business today. A key question remains: How liable is a business if a worker or customer catches COVID-19 at that place of business?

Businesses say if you want them to open and put people back to work, they have to be afforded some legal protection first.

Let’s say I take advantage of Florida’s new openness today to have lunch at a restaurant and then I get sick with COVID-19. Can I successfully sue that business because I got sick at their place if I can prove the tables were not far enough apart, they allowed too many people to be served or maybe that the waiter was not wearing a mask?

A growing number of state and federal lawmakers are considering legislation that would carve out a coronavirus liability exemption for businesses. On Friday, congressional Republicans said they were united in their push to exempt businesses from COVID-19 liability. The exemptions have White House support, according to White House economic adviser Larry Kudlow, who said this weekend such protections should be included in legislation to make it easier for businesses to make a comeback. Kudlow called the limited liability a “guardrail.”

The legal name for this is limited liability protection. It already has real-life applications at meat processing factories, which President Donald Trump said must remain open, despite 2,200 workers at 48 plants having been infected. Some of those factories opened over the weekend or will open today (see the linked map, which is updated constantly).

The National Association of Manufacturers is also asking for companies that produce medical and safety equipment to have some liability exemptions during the rush to produce products needed to treat pandemic patients.

The association posted a statement that said:

We need to extend Good Samaritan protections to cover those who donate equipment, or who may be producing protective gear or even ventilators and more complicated medical equipment for the first time. We need to bar suits for public nuisance against critical manufacturers, as well as shareholder suits that try to “Monday-morning quarterback” decisions manufacturers have to make every day in the face of tremendous regulatory uncertainty.

The manufacturers said they think of this as something that would apply during the pandemic response and the “wind-down” from it.

Bloomberg Law walked us around the legal and legislative fights that will break out in Washington, D.C., and in 50 state capitals:

“There is a worry about lawsuits, but I think the ideas of some kind of a ‘safe harbor’ for employers from all forms of liability is a bit of a pipe dream,” Randy Johnson, a corporate lawyer for Seyfarth Shaw in Washington, told Bloomberg Law. “Various opponents, like Democrats, the plaintiff’s bar and organized labor would line up against anything like that.”

Bloomberg said it is far more likely that the federal and state government will pass something that looks more like good Samaritan laws that exist for health care workers. The measure of liability may well be whether a business is following the published state and federal guidelines at the time — for issues including space and separation, how many people are allowed inside at a time, whether the business enforces face mask protection and so on.

Journalists, you should stay on top of this unfolding story. The danger will evolve if lawmakers water down worker’s compensation and personal injury laws (which are state laws, and they differ widely state-to-state). Federal protection would most likely come into play in the enforcement of workplace safety (what most people know as OSHA) enforcement.

The political influence of the maker of remdesivir

Friday afternoon, the Food and Drug Administration approved Gilead Science’s drug remdesivir for emergency use during the COVID-19 pandemic. That despite mixed studies in the U.S. and China about whether the drug is safe and effective. Two studies last week showed it may help sick patients recover faster, while a study in China showed it did not help at all.

Gilead Sciences amped up its spending on lobbying Congress at just the time it needed government support for its drug, and while Congress was considering legislation for drug manufacturing.

NPR reported:

The pharmaceutical company spent $2.45 million on lobbying in the first three months of the year, a 32% increase over the $1.86 million it spent in the first quarter of 2019.

The first quarter is also when Congress drafted and passed the Coronavirus Aid, Relief and Economic Security Act, which contained numerous provisions affecting the pharmaceutical industry, including funding for the development of vaccines and treatments in response to the pandemic.

Even at that, $2.5 million is not a forehead-slapping amount for Gilead to spend on lobbying compared to some other drug companies. You can see how much each pharmaceutical company spends on lobbying in this disclosure.

Let’s also remind ourselves that there is nothing illegal about hiring lobbyists to promote and protect the interests of any industry or cause as long as it is disclosed and stays within the legal lines. According to its disclosure filing, Gilead has been most active in lobbying on bills that have to do with drug pricing.

How will you tap into #GraduateTogether?

On Saturday, May 16 at 8 p.m. Eastern time, ABC, NBC, CBS and Fox will air a one-hour commercial-free special celebrating the class of 2020. The networks are partnering with the LeBron James Family Foundation and the Entertainment Industry Foundation to put on the celebration.

The graduates, their families and teachers are all posting thoughts about this moment in time.

In addition to the TV coverage will be “social media and streaming platforms — including Complex Networks, Facebook App, Instagram, PeopleTV, Snapchat, TikTok, and YouTube — which will all create dynamic experiences for each of their unique audiences,” according to a press release about the event.

The program will include celebrity-delivered commencement speeches and a collection of stars including, LeBron James, Bad Bunny, Charli D’Amelio, Dixie D’Amelio, Chika, YBN Cordae, Loren Gray, H.E.R., the Jonas Brothers, Brandan Bmike Odums, Ben Platt, Henry Platt, Jonah Platt, Megan Rapinoe, Yara Shahidi, Lena Waithe, Pharrell Williams and Malala Yousafzai.

James announced the event with his own senior high photo.

There is a spark of an idea in this post: Ask your viewers/listeners/readers to post their high school photos and finish them out with a “most likely to” quote. It might also be a time to post thank-you’s for teachers, principals, band leaders, lunchroom workers and school custodians.

How will your newsroom connect with this effort? Is there room for a local version somehow, maybe online, on a digital subchannel? Imagine if that whole weekend became a celebration of the high school and college graduates in your community. Getting crassly commercial for a second, I suspect parents would buy congratulatory ads for their kids in such a special section. If you come up with great ideas, send me a note.

What is COVID toe?

Here is a new word for you: “chilblain.” It is a red, painful lesion that dermatologists usually only see on very few people’s fingers and toes in the winter.

Photo of a “COVID toe” case from Cleveland Clinic

Except now, they are seeing them from coast to coast and with a fair amount of frequency, apparently linked to COVID-19. The Mayo Clinic says they usually get better on their own but can get so painful that sufferers should see a doctor.

Right now, the Centers for Disease Control and Prevention is not including chilblains as a symptom of the coronavirus, but some doctors think it should make the list and are even calling the bright red or purple toes “COVID toes” because they are showing up on people who have tested positive for COVID-19. even if they do not show other symptoms.

Cleveland Clinic pulmonologist Dr. Humberto Choi said the “COVID toe” symptoms are more common among COVID-19 infected patients than people with other viral infections but have not shown up in the majority of coronavirus patients, so the public should stay focused on the symptoms of coughing, fever and muscle aches.

Dr. Choi said it is not uncommon for people to develop rashes like chilblains when they are fighting viruses. In fact, he said measles and even antibiotics sometimes also produce rashes.

The red or purple toes, he said, are likely tiny clots in blood vessels. He said he often sees such things on people in intensive care.

The New York Times reported:

“All of a sudden, we are inundated with toes,” said Dr. (Lindy) Fox, who practices at the University of California, San Francisco. “I’ve got clinics filled with people coming in with new toe lesions. And it’s not people who had chilblains before — they’ve never had anything like this.”

It’s also not the time of year for chilblains, which are caused by inflammation in small blood vessels in reaction to cold or damp conditions. “Usually, we see it in the dead of winter,” Dr. Fox said.

The battle over postponed concert ticket refunds

Stay on this story. It involves more than 30,000 events and the hundreds of thousands, of ticketholders who want and/or need the money tied up in tickets for events that won’t happen this year.

Ticketmaster is still not refunding “postponed” event tickets, even if there is no plan to hold the event in 2020 and no idea when they will hold it. Elton John, for example, postponed all of his 2020 concerts. That it is the problem. If the concerts had been “canceled,” then Ticketmaster claims it would refund the tickets. But Ticketmaster changed its ticket terms to not include “postponed” as grounds for an automatic refund. In fact, you have to wait until postponed events get a new date before you might even be eligible for a refund.

Ticketmaster’s president Jared Smith wrote that his company is dealing with 30,000 events for which it sold tickets:

Of those 30,000 events already impacted, over 12,000 have already been canceled and we are actively issuing refunds to every one of the purchasers of those events. Roughly 5,000 events have already been rescheduled, and organizers have authorized us to issue refunds to consumers who request them.

Of the remaining 14,000 events — which include sports, concerts and Broadway shows — promoters are actively working through rescheduling options, which is an incredibly complex task at present given the diminished line of sight into the future as well as the uncertainty around when large gatherings may resume. As those events either land new dates or are canceled, we will work quickly with the event organizers to authorize refunds on those events as well.

Let me reiterate: neither our clients, nor Ticketmaster, intend to withhold refunds on postponed shows.

NBC Bay Area used Ticketmaster’s response to produce a graphic to help understand how the refund/reschedule process goes. In short, if an event is canceled, Ticketmaster refunds ticketholders. If it is rescheduled, then it is up to the promoter to decide if there will be refunds or reticketing.

 

(Courtesy: NBC Bay Area)

Class-action lawsuits are almost a sure thing given how many people and how much money is tied up in all of these tickets. They have already begun.

A couple of members of Congress, Democratic Reps. Katie Porter from California and Bill Pascrell from New Jersey, jumped on Ticketmaster with a scathing letter that said, in part:

Many of these suffering Americans are your customers. Their burden in the coming months is heavy. But instead of helping them lift that burden, your company has decided to make it heavier. Ticketmaster’s webpage announces at the top in bold red letters that “Refunds are available if your event is canceled,” which gives fans no avenue to get their money back for events that have been indefinitely postponed. Incredibly, a New York Times report found that this same Ticketmaster webpage used to read that refunds “are available if your event is postponed, rescheduled or canceled” and was quietly changed. In response, Ticketmaster has asserted that the change was made for “clarity,” and your company then deflected responsibility to event organizers.

Your claim that Ticketmaster’s refund policy was not changed but clarified is so absurd it insults the intelligence of your customers. Furthermore, given your enormous power over the marketplace, your company’s assertions that this inability to obtain a full refund for postponed events shows rings hollower than a drum. In effect, your company is holding hostage money that could constitute a rent check, electric bill, or groceries to feed children.

Billboard explained that Ticketmaster is caught in a bind by the complexity of how its business works. Even though you and I pay Ticketmaster, they say they do not hold that money. They pass it along to the clients, the promoters who put on shows. Billboard said:

Ticketmaster will encourage venues to offer refunds for a limited window — the company wants to avoid scalpers dumping large blocks of tickets days before a show because the tickets weren’t fetching a high retail price.

Journalists, let the public know when big concerts or events get rescheduled and what the situation is on refunds for those events. This story involves big bucks that could make a big difference to the public right now.

The way we work now

From WRC-TV in Washington, D.C.:

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Al Tompkins is senior faculty at Poynter. He can be reached at atompkins@poynter.org or on Twitter, @atompkins.

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Al Tompkins is one of America's most requested broadcast journalism and multimedia teachers and coaches. After nearly 30 years working as a reporter, photojournalist, producer,…
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