By Mike Curley

Law360 (April 13, 2021, 4:17 PM EDT ) A group of 19 attorneys general from 18 states and the District of Columbia are stepping in to urge the Eighth Circuit to keep a lawsuit alleging Tyson Foods Inc. mishandled a COVID-19 outbreak at its pork plant in Waterloo, Iowa, in state court there.

In a brief filed Monday, the attorneys general told the Eighth Circuit that allowing the case to proceed in federal court would undermine states' ability to enforce their own laws, and allow nearly any company to pull state law claims against it into federal court by arguing that they were working under federal guidance.

"Throughout the pandemic, frontline workers have put their lives on the line to keep the rest of us healthy, safe and fed," Maryland Attorney General Brian Frosh said in a press release Monday. "Those workers deserve protection from the virus while they are at work. When their employers put them at risk and violate state law, the workers are entitled to access state courts to seek safe conditions and accountability."

The U.S. government also joined the attorneys general in saying the case belongs in state and not federal court, filing an amicus brief denying that Tyson had been acting under the direction of the federal government and arguing that the company was not performing federal functions.

The two lawsuits at the center of the case 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 plant worker Isidro Fernandez, who died from COVID-19 in April 2020.

The lawsuits accuse the company, its top executives and its Waterloo 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 five deaths and more than 1,000 infected employees at the facility, according to the lawsuits.

The Iowa district judge sent the cases back to state court and Tyson appealed, arguing in February that it's entitled to a federal forum under the Federal Officer Removal Statute, which allows 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.

In the brief, the attorneys general argue that the statute is meant to protect government agents from "hostile" state courts, and the same protection is not available to private entities except in limited circumstances where the private entity is doing essential government business.

On appeal, Tyson argued that statements from the U.S. president at the time about the importance of "feeding the nation" during the pandemic, as well as direct communications with the government, made it effectively a federal agent that could remove the case to federal court.

The attorneys general, however, said this interpretation of the statute is far too broad, as other industries could make similar claims and effectively immunize themselves from state law for actions taken during the pandemic or other emergencies.

States must have the ability to protect workers and public health, the attorneys general argued, noting that the federal Occupational Safety and Health Act expressly preserves a role for state law and common law claims for employees injured on the job.

"State enforcement actions and lawsuits by private parties asserting state-law claims have been key lines of defense against the spread of COVID-19 in meatpacking workplaces and communities," the attorneys general said in the brief.

United Food and Commercial Workers International Union also filed an amicus brief in support of the workers, arguing that Tyson was motivated by profits rather than federal direction, and that even if the company was working under the government's guidance, that should not have stopped it from taking appropriate safety measures.

Adam R. Pulver of Public Citizen Litigation, representing the workers, told Law360 that the briefs by the states and the federal government show that the attorneys general recognize that the meatpacking industry "was not federalized" during the pandemic.

"While Tyson is trying to blame the federal government for the choices it made in failing to take basic steps to protect the workers at its Waterloo plant, the United States has made it clear that Tyson was not acting under its direction," he said. "Hopefully, the United States' brief will discourage for-profit companies from continuing to raise frivolous federal officer arguments relating to their own negligence with respect to workers and consumers."

Mel C. Orchard III of The Spence Law Firm LLC, also represented the workers, added that they are "just grateful" that the states and others are concerned about worker welfare.

"It gives us confidence that the most trusted branch of our democracy, the judicial branch, will find once again that the most powerful of corporations are not above the law," he said. "Workers matter. People matter. And local citizens have the right and responsibility to determine justice in their own communities."

The attorneys general of California, Colorado, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Maryland, Maine, Michigan, Minnesota, Nevada, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Washington and Wisconsin joined in the brief.

A spokesperson for the Department of Justice, representing the federal government, declined to comment Tuesday.

Representatives for Tyson, the facility managers and United Food and Commercial Workers could not immediately be reached for comment Tuesday.

The U.S. government is represented by David Grahn and L. Benjamin Young Jr. of the U.S. Department of Agriculture and Bryan M. Boynton, Sean R. Berry, Michael S. Raab and Lindsey Powell of the U.S. Department of Justice, Civil Division.

The states are represented by their respective Attorney General's Offices.

The workers' families are represented by Thomas P. Frerichs of Frerichs Law Office PC, Adam R. Pulver and Scott L. Nelson of Public Citizen Litigation, John J. Rausch of Rausch Law Firm PLLC and Mel C. Orchard III, G. Bryan Ulmer III and Gabriel Phillips of The Spence Law Firm LLC.

Tyson is represented by Paul D. Clement, Erin E. Murphy and C. Harker Rhodes IV of Kirkland & Ellis LLP.

The facility managers are represented by David Yoshimura of Faegre Drinker Biddle & Reath.

United Food and Commercial Workers International Union is represented in-house by Sarai King and Joey Hipolito and Jay M. Smith of Smith & McElwain Law Office.

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 and Melissa Angell. Editing by Alanna Weissman.

Update: This story has been updated with the federal government's response to a request for comment, and additional comment from the workers' attorney.

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