Tanenbaum Keale LLP associate Kelly A. Belnick was recently published by Law360 where she discusses the legal risks coronavirus-response manufacturers may face in the aftermath of COVID-19; examining the protections afforded to them through triggering the Defense Production Act (“DPA”) and other federal mechanisms.
Belnick writes, “The original 1950 law was designed to balance the absolute need to protect national security through mandated (or strongly urged) manufacturing increases (economic conscription – if you will), against the understandable financial and legal concerns of private, typically autonomous, corporations.”
She touches on the 1988 case, Boyle v. United Technologies Corp., where the Supreme Court reiterated the long recognized interest in shielding federal agents from tort liability, including private manufacturers acting as federal agents, by enabling them to raise the government contract defense; noting it is not an absolute defense or a complete immunity shield.
Belnick concludes by writing, “It is critical, if not essential, to pause and consider what could happen in the years and decades to come if tort claim immunity is left, as it currently is, an open-ended question for these actors.”