AUSTIN - The Texas Civil Justice League recently told the state’s highest court that if the retroactive provision of the Pandemic Liability Protection Act is struck down, untold thousands of Texans and their businesses could be targeted for litigation.
On July 20, the U.S. Court of Appeals for the Fifth Circuit certified a question to the Texas Supreme Court concerning whether the retroactivity clause of the Act violates the state’s Constitution.
According to the Fifth Circuit, Luke Hogan, on behalf of a putative class of students, sued Southern Methodist University for refusing to refund tuition and fees after the university switched to remote instruction during the COVID-19 pandemic.
The district court dismissed Hogan’s complaint for failure to state a claim, which the Fifth Circuit reversed in light of ruling that “teaches that Hogan adequately pled a breach-of-contract claim.”
Alternatively, the district court held that the Act retroactively bars Hogan’s claim for monetary relief and is not unconstitutionally retroactive under the Texas Constitution, writes the Fifth Circuit.
“That latter ruling raises a determinative-but-unsettled question of state constitutional law, which we CERTIFY to the Texas Supreme Court,” the Fifth Circuit wrote. “Does the application of the Pandemic Liability Protection Act to Hogan’s breach-of-contract claim violate the retroactivity clause in article I, section 16 of the Texas Constitution?”
On Aug. 4, the Texas Civil Justice League submitted an amicus curiae brief, stating the question certified to the high court “is of incalculable importance to the health care providers, trade and professional associations, and business entities that the League represents.”
“TCJL and its members participated actively in the … passage of the Pandemic Liability Protection Act (SB),” the brief states. “The foundation stone upon which the entire Act rests is the retroactivity provision contained in Section 5(a) of the legislation.
“If this provision is struck down by the courts, untold thousands of Texans and their businesses who made enormous sacrifices during the pandemic could be targeted for litigation—precisely the outcome that SB 6 was enacted to prevent.”
TCJL argues that no one at SMU, or anywhere else, could have predicted what happened in 2020, much less have adequately prepared for it.
“In our view, the Legislature acted appropriately and well within its constitutional authority when it determined not to hold people to an impossible standard of conduct performed under the extreme duress of an unforeseeable, once-in-a-century event,” the brief states.
Supreme Court case No. 23-0565