While Missouri Attorney General Eric Schmitt filed a lawsuit against the Chinese government and several other Chinese entities, what comes next is complicated, and experts said it’s unlikely the state will ever collect any money from the suit.
The attorney general, through his Deputy Justin Smith, asked a federal judge in St. Louis for punitive and actual damages among other relief in a court filing on Tuesday.
Problematically for the state, foreign governments generally enjoy “sovereign immunity” in U.S. courts, meaning they can’t be sued. However, according to multiple professors who interviewed with News-Press NOW on Thursday, the state’s position can’t necessarily be shrugged off as a political stunt.
“I think that sells the case short,” Mark Johnson, a practicing lawyer and professor at the University of Kansas, said. “If they can overcome just the basic dismissal motion, we have very liberal discovery rules. You can get all sorts of information.”
To overcome an initial legal hurdle, the state will have to prove China’s actions fall under an exception to the Foreign Sovereign Immunities Act, which established limitations on when a foreign country can be sued in a federal court. One of those exceptions is “commercial activity,” which might open the door for Missouri.
“(Chinese nationals) were allowed to go out of China and they did travel in January, February, into the U.S. before we put the travel ban. They themselves engaged in commerce in the U.S.,” Raj Bhala, a University of Kansas law professor, said. “So the commercial activity exception is not, it’s not laughable. I mean, it’s plausible. I think we’ll probably need more facts.”
Missouri also sued other Chinese entities in addition to the government, meaning the lawsuit could proceed even if a judge determines the Chinese government can’t be sued for its actions. Even so, it’s possible that none of the defendants in the lawsuit will respond and the court has limited ability to compel them.
“I don’t think China will show up,” David Tushaus, a Missouri Western State University professor, said. “I don’t argue with the facts in the lawsuit. And that’s really not the point I’m making. The point I’m making is you got to have jurisdiction. First, you have to have personal jurisdiction, subject matter jurisdiction.”
All of the experts agreed, from a lawsuit or otherwise, the best outcome would be for China to be more open with the international health community in the future, and provide any resources the country has available to fight the current pandemic.
“Let’s bring it all to light, not from a standpoint of who we’re going to punish, but what we’re going to learn from it so that we don’t make that mistake again,” Tushaus said. “So we need to start the conversation about fixing the problems and that’s not so much a legal issue as a community health issue.”’
“The political wisdom of the case is worth considering,” Bhala said. “Because it (could lead) to retaliation against U.S. business interests, Missouri business interests, and make no mistake the Chinese government will know for sure where every business from the U.S. is actually home stated (and punish Missouri companies).”