U.S. Covid Lawsuits Against China

[This post is based on a keynote address delivered at a webinar on “Law Across Borders” hosted by the Chinese Journal of Transnational Law on October 16, 2025.]

At a conference at Wuhan University two years ago, I provided a U.S. perspective on China’s new Foreign State Immunity Law. By passing this law, China adopted the restrictive theory of foreign sovereign immunity, which allows foreign states to be sued in domestic courts with respect to their non-governmental acts, but not with respect to their governmental acts. The United States has also adopted the restrictive theory, and I compared China’s new law to the U.S. Foreign Sovereign Immunities Act (FSIA).

Today, I would like to address some cases brought under the U.S. FSIA against China, the Chinese Communist Party, and other Chinese entities. These cases seek damages for harms related to the Covid pandemic. The first Covid case was filed on March 13, 2020. To date, almost 30 such cases have been filed. Most have been brought by private parties, but two were brought by U.S. states, specifically Missouri and Mississippi. Most of these cases involve tort claims such as negligence and public nuisance. But some alleged violations of consumer protection law and antitrust law.

The FSIA

Under the U.S. FSIA, foreign states and their agencies and instrumentalities are immune from suit in state and federal courts unless an exception to immunity applies. The FSIA has separate provisions addressing the immunities of state-owned property from the execution of judgments.

The FSIA has several exceptions to immunity from suit, including when a foreign state has waived its immunity, when a foreign state engages in a commercial activity, and when a foreign state commits a tort within the United States. None of the Chinese defendants in these cases waived their immunity, and the U.S. tort exception applies only when the “entire tort”—both the conduct and the injury—occurs in the United States, which was clearly not true in these cases.

But the plaintiffs claimed that at least some of the defendants’ alleged conduct was commercial and so fell within the FSIA’s commercial activity exception. Some members of the U.S. Congress proposed legislation that would add a new exception to the FSIA specifically for Covid cases. But none of these proposals was enacted.

Missouri’s Case Against China

I’d like to talk more specifically about Missouri’s case against China, because it is the only one so far that has resulted in a judgment. As in most of the U.S. Covid cases, Missouri brought tort claims against the Chinese defendants, including public nuisance, abnormally dangerous activities, and breach of duty. The defendants included the People’s Republic of China, some of its ministries, the provincial and city governments, the Chinese Communist Party, the Wuhan Institute of Virology, and the Chinese Academy of Sciences. The district court dismissed Missouri’s claims on the ground that all of the defendants were immune from suit under the FSIA.

On appeal, the U.S. Court of Appeals for the Eighth Circuit held that the FSIA applied to all the defendants. The government defendants were all deemed to be “foreign states” under the Act. So was the Chinese Communist Party because of its close connection to China’s government. The Wuhan Institute of Virology and the Chinese Academy of Sciences were considered to be agencies or instrumentalities of China. The Court of Appeals held that most of Missouri’s claims were based on China’s governmental activities and so were not covered by the FSIA’s commercial activity exception. But the court held that Missouri’s claims that China hoarded personal protective equipment such as masks were based on commercial activities that had a direct effect in the United States. The court said that the hoarding claims could go forward under the FSIA’s commercial activity exception.

Shortly after this decision, I wrote a post discussing some of the problems with Missouri’s tort claims. First, under Missouri’s choice of law rules, it seemed to me that Chinese tort law would govern these claims, not Missouri tort law. Second, even under Missouri tort law, it seemed very difficult to show that the Chinese defendants had breached a duty to Missouri or that the defendants’ alleged conduct was the proximate cause of Missouri’s injuries.

When the case went back to the district court, Missouri changed its argument about liability. Instead of pressing its tort claims, Missouri claimed that the Chinese defendants’ alleged hoarding of masks and other personal protective equipment violated federal and state antitrust law. Missouri seems to have borrowed this theory of liability from the complaint filed by the state of Mississippi.

The Chinese defendants decided not to appear in U.S. court to defend against the claims. Instead, the China Society of Private International Law filed several amicus briefs. The district court seemed to ignore these amicus briefs, however. In March 2025, the district court entered a default judgment against the defendants for more than $24 billion. These damages were based on an expert report stating that, because of lost economic activity, Missouri would lose $8 billion in tax revenue between 2020 and 2051. Under federal and state antitrust law, plaintiffs are entitled to three times the actual damages, which is how the court got to $24 billion. Needless to say, these estimates are extremely speculative. But because the defendants did not appear to argue the causation point or challenge the expert report, the district court accepted this evidence as uncontroverted.

Other Covid Cases

Of the other Covid cases, many have been dismissed on grounds of immunity or other grounds. In some cases, there have been problems serving process on all the defendants (which can be difficult to do under the FSIA). In May of this year, a district court in Florida allowed federal antitrust claims by health care workers to move forward against China, the Chinese Communist Party, and PetroChina (America), which is not covered by the FSIA, for hoarding masks and other personal protective equipment.

Mississippi’s Covid suit against Chinese defendants has also been fully briefed by the state of Mississippi, which has moved for a default judgment. Again, the China Society of Private International Law has filed amicus briefs, but it is not clear how much weight the district court will give them. In May, the Chinese Academy of Sciences hired a lawyer who entered an appearance in the Mississippi case. But Mississippi immediately dismissed its claims against this defendant. It seems that the state of Mississippi does not want anyone to argue for the defendants.

Should China Defend These Cases?

I wonder if China’s decision not to appear in these cases was the right decision. I understand why China views these cases as politically motivated and illegitimate. China also probably would not want to submit to U.S. procedures for discovery of evidence concerning the outbreak of the Covid pandemic, which it would be required to do if it were to defend against the claims. But by defaulting on the claims, China has left the plaintiffs’ evidence unchallenged.

I note that China is defending some suits brought under the U.S. FSIA. Just last month, a district court dismissed a case seeking to hold China liable for defaulting on bonds issued by the Qing Dynasty. China hired a U.S. lawyer, submitted briefs, and convinced the district court that it was entitled to immunity under the FSIA. Accepting the restrictive theory of foreign sovereign immunity, as China has done, may mean that China will have to defend against lawsuits that it thinks should not have been brought. The bonds case shows that China can do this successfully.

Will China Have to Pay the Judgments?

So, will China have to pay Missouri $24 billion? If other judgments for hoarding personal protective equipment are entered, will it have to pay those? As I have previously explained at TLB, I think the answer is no.

As I mentioned, the U.S. FSIA addresses immunity from execution separately from immunity from suit. The FSIA provides that “[t]he property in the United States of a foreign state … used for a commercial activity in the United States, shall not be immune … from execution, … if … the property is or was used for the commercial activity upon which the claim is based” (emphasis added). This means that the properties in the United States of China, its ministries and subdivisions, and the Chinese Communist Party are immune from execution unless those properties were used to hoard personal protective equipment. I find it hard to imagine how that could be true.

The immunity for properties owned by agencies or instrumentalities is not as broad. The FSIA permits execution against the property of an agency or instrumentality engaged in a commercial activity in the United States “regardless of whether the property is or was involved in the act upon which the claim is based.” This means that the properties in the United States of the Wuhan Institute of Virology and the Chinese Academy of Sciences would be subject to execution if those defendants are engaged in commercial activities in the United States even if the properties themselves were not used to hoard personal protective equipment.

It is worth emphasizing that the Missouri judgment is enforceable only against properties owned by those defendants. Missouri cannot execute its judgment against property in the United States simply because the property is Chinese owned. To my knowledge, Missouri has not yet attempted to enforce its judgment. Indeed, I understand that the default judgment has not yet been served on the defendants, as the FSIA requires.

Other Possible Defendants

There is some danger that plaintiffs will start to sue Chinese defendants who are not entitled to sovereign immunity under the FSIA. In the Florida case, for example, the plaintiff health care workers sued not just China and the Chinese Communist Party but also PetroChina’s U.S. subsidiary. PetroChina (America) was alleged to have bought masks in the United States at the direction of the Chinese government to send to China. PetroChina did not default and successfully argued that it is not an agency or instrumentality of China. But that also means that it is not entitled to immunity from suit under the FSIA and that its assets in the United States would not be immune from execution of a judgment.

A Heritage Foundation report issued in the summer of 2024 suggested that plaintiffs might sue two Chinese airlines that operate flights to the United States. Both of these airlines have waived their sovereign immunity as a condition of operating in the United States.

Conclusion

Covid suits against China have had limited success in U.S. courts so far. The only successful claim has been that China and other Chinese entities engaged in hoarding of masks and other personal protective equipment during the early stages of the pandemic in violation of U.S. antitrust law. In the Missouri case, this claim resulted in a $24 billion judgment. But it seems unlikely that Missouri will be able to enforce this judgment because the defendants’ assets in the United States enjoy a lot of immunity from execution.

There are dangers for China, however. Congress could pass a new exception to the FSIA to allow more cases to move forward. Plaintiffs could bring more hoarding claims against Chinese defendants who are not covered by the FSIA. But so far, the Covid suits against China in U.S. courts have been more successful in making headlines than in recovering money.