By Melissa Angell

Law360 (February 23, 2021, 8:53 PM EST ) Tyson Foods is asking the Eighth Circuit to ensure that a pair of lawsuits alleging shoddy safety measures in its meat plants led to several worker deaths from the coronavirus stay in federal court, arguing it's entitled to the venue because it acted under federal authority in maintaining its operations.

In its Feb. 18 brief, Tyson argued that a district court got it wrong when it sent the cases back to Iowa state court, because the food manufacturer was acting under federal supervision and control when it continued to operate its plants without coronavirus-specific precautions in the early days of the pandemic.

The Arkansas-based food giant said it's entitled to a federal forum under the Federal Officer Removal Statute, a doctrine allowing certain cases to be removed from state to federal court if a federal officer or agency, or an entity working under a federal officer, is involved.

"Tyson could have paused its operations while it retrofitted its facility in the way plaintiffs imagine, but doing so would have been contradictory to the federal direction to keep plants operational to promote the national food supply," the brief said.

The two lawsuits were filed in Iowa state court before being transferred to the Northern District of Iowa. One lawsuit was filed by the estates of three deceased Tyson workers, and a second was filed by the son and estate of Isidro Fernandez, who died from COVID-19 in April.

The lawsuits against Tyson accuse the company, its top executives and its Waterloo, Iowa, plant's managers and supervisors of repeatedly lying to their employees and knowingly risking their health in March and April. The leaders made negligent and reckless decisions that resulted in over 1,000 infected employees at the facility and five deaths, according to the lawsuits.

The suits allege that individual Tyson executives and supervisors did not take the proper precautions and abide by federal guidance to protect the plant employees from becoming infected by the coronavirus. The Waterloo facility is Tyson's largest pork plant in the United States and employs around 2,800 workers who process approximately 19,500 hogs per day, according to the lawsuits.

Tyson officials dined at the White House and spoke on the phone with former President Donald Trump and former Vice President Mike Pence before Trump signed an executive order in April classifying meat processing plants as critical infrastructure companies that must remain open, according to the suits.

A Tyson spokesperson told Law360 on Thursday that "there are multiple inaccuracies in the complaint, including that Tyson dined at the White House."

But the district court said the federal control and supervision that predates the executive order is "insufficient to entitle Tyson to a federal forum." The court remanded the suit to state court on the grounds that Tyson did not qualify for federal-officer removal until Trump issued his executive order.

Tyson claims, however, that nothing in the statute requires a formal order.

This line of argument is on solid ground, according to Lisa Himes, a Rogers Joseph O'Donnell PC attorney specializing in government contract litigation, who agreed that a formal order is not mandatory for the law to apply.

"The defendant can be acting under informal directions — the directions do not need to be in writing," Himes said. "I would consider this situation like a domestic battlefield where, particularly at the beginning, the federal officer and those acting under it do not have time for formality — they act quickly in an emergency situation."

In its Feb. 18 brief, Tyson argued that denying it federal jurisdiction because the government did not formalize its commands until six weeks into the pandemic would be "fundamentally inconsistent" with the statute.

"A demand for formality is particularly misguided here, because the federal government is most likely to enlist private help in dealing with unfolding emergencies, when time is of the essence and formalizing arrangements is impractical," the brief said.

"If a federal officer jumps into the passenger seat and tells a private individual to drive in pursuit of a fleeing suspect, there is federal direction even though there is no time for a formal deputization," Tyson continued.

If the Eighth Circuit agrees with Tyson and finds cases involving "critical infrastructure" declarations belong in federal court, that ruling could set a standard for future coronavirus-related litigation, according to James Beck, a senior life sciences policy analyst at Reed Smith LLP.

"Plaintiffs have wanted to bring personal-type injury cases in state court whereas defendants want it in federal court," Beck said. "So this is going to move a significant amount of litigation into federal court and will be seen as a pro-defendant development."

Mel Orchard of The Spence Law Firm LLC, who is representing the workers' families, told Law360 on Tuesday that they "believe the district court judge was correct in her analysis of the issues that have been appealed to the Eighth Circuit."

The workers' families are represented by Mel Orchard of The Spence Law Firm LLC.

Tyson is represented by Paul D. Clement of Kirkland & Ellis LLP.

The cases are Hus Buljic et al. v. Tyson Foods Inc et al., case number 21-1010, and Oscar Fernandez v. Tyson Foods Inc et al., case number 21-1012, in the U.S. Court of Appeals for the Eighth Circuit.

--Additional reporting by Craig Clough. Editing by Breda Lund.

Update: This story has been updated with comment from a Tyson spokesperson. 

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