Each year, in the US alone, PwC estimates B2B trade shows is a $14.3 billion market, with that figure growing to $16.8 billion in 2021. All of this now is at risk in wake of the Covid 19 crisis and its aftermath. The lingering question is in the Coronavirus era, can trade show organizers protect themselves from liability and what are the obligations of the attendees to NOT transmit the virus to others, as many are asymptomatic. Each year, billions of dollars are spent on trade show registrations, travel, set ups and trade show goers spent similar amounts on hotels to hosting receptions to catch that “big fish” where hundreds of people gather to shake hands, slap each other on their backs and to exchange business cards and war stories in a noisy environment where social distancing is next to impossible.
For example, The International Trademark Association (a gathering of trademark experts) boast its attendance at 10,000 or more. The International Bar Association claims its lawyer and other legal professional attendance is typically at the 5,000 to 6,000 range of participants. COMDEX advertises that its 2019 attendance is 45,217. With such large attendance, in the post Covid 19 era, if there is such a thing, what are the responsibilities and obligations of trade show organizers, networking group hosts, association sponsors, and others who are managing the event for profit? Will such event organizers be held liable for wrongful death should someone catch the disease at such a forum? Would the standard of negligence or gross negligence apply to event organizers in the post Covid 19 era? Or will event organizers be held criminally liable knowing that there is currently no cure for the disease and openly inviting the gathering of hundreds if not thousands of participants in an event where air filtration is questionable, social distancing is impossible, and gathering of strangers from all over the world in close quarters is not only expected but encouraged without impunity?
The reality is that any kind of “convention style” gathering poses a risk, and the virus is indiscriminate with respect to convention goers as to their age, sex or pre-existing conditions. The tradition of marketing in a large forum is hard to break, where participants are expected to “press the flesh”, talk loudly within inches of another due to the deafening music, and laughing, coughing and share bread in a festive environment. Without it, some believe the deal will “never be closed” and the contact will never be “wheeled in”. There is a lot to be said about making contact the “old fashion way”. What good is attendance at a networking event if you must social distance a minimum of 6 feet, and in some jurisdictions, risk violation of the country’s guidelines or as in the Philippines, where the President has pronounced that violators will be shot? What good is the forum or contact when one participant wears a mask and another does not? Clearly even in post Covid 19 era, there will be a chilling effect on networking and will take time for things get back to “normal” again. However, the “normal” may be the “new normal”? What will be that “new normal”? A great deal of what will define the “new normal” will be how the courts in various jurisdictions will define liability. The traditional test of “know” or “should have known” will be put to the test, and so will what defines “reasonableness” in light of what is expected of the organizers to take as proactive actions to protect and prevent the spread of disease at its venue by its “customers”. Surely the plaintiff bar will have a field day.
Will the organizers be held liable for wrongful death? Will they be considered negligent or even grossly negligent (otherwise defined as criminally negligent) if they fail to conduct a test each participant each day of the event for Covid 19, conduct temperature checks daily each venue entrance, provide plenty of hand sanitizers or provide N95 masks for convention goers to use? Should attendees be asked to complete a questionnaire prior to “exposing themselves” to the general public even if they have no symptoms? These are the tough questions that will be asked as the US and the World “consider reopening” themselves for commerce. These questions also have no simple answers. Good practice seems to dictate that the organizers should find every reasonable way to protect their “customers” and in doing so, themselves as well, legally by testing before entrance to the event and then routinely conducting temperature checks in the post other Covid 19 era. But is this enough? Should consideration be given to asking participants to execute a release of liability? What about screening participants and ask those who fall into high risk categories such as those with pre-existing conditions NOT to attend? Is this a fair question? We will all find out in the months to come what the “new normal” will be. Covid 19 has changed the world, changed marketing, changed how we as people, as salespersons, as networkers network. Maybe virtual networking is the way of the future? Who knows, but life as we know it will change. The European greeting of kissing on the cheek 3 times may need to change in favor of fist bumps, or better yet, elbow bumps. We don’t know and we hope not. Life is about people, about making connections, about meeting eye to eye and this will never change for the sake of humanity.
For those of us who live by networking, making sales at conventions, making a connection by flying hundreds and thousands of miles to end up with wearing a mask 6 feet away from your target contact seems so chilling and so, well, distant. What’s the alternative? Until a vaccine has been created, which we understand is still 18 months away and a therapeutic solution (there are many purported concoctions touted) is found, the networking days as we know it may be over in favor of digital marketing, but only temporary we hope. No exhibition organizer can risk its reputation with one Covid case and taking out an insurance policy prior to hosting a convention isn’t the answer. Lawsuits will surely follow given what we know, but organizers are incumbent to seek their own legal counsel to see what can and should be done to protect their customers as well as themselves. Even participants should consider their own liability as it is yet to be determined to what extent could a convention goer, knowing he or she is infected, be held criminally liable for their act. Suits will surely follow, and one incident, one Covid 19 case will forever “kill” the forum. Tough days ahead for marketing organizers. What’s the solution? Those of us who are brought up on looking at the other person in the eye, giving bear hugs and breaking bread with your future partner will have to find new ways to connect. Life must go on. Business must continue to churn. What we don’t want is business grinding to a halt. Surely new business models will emerge, and this includes exhibitors, conventioneers, and any forum where there is a large gathering. This will change forever. Doctors already have begun serving their patients via “tele-doctoring”. Lawyers and accountants are already working and servicing clients remotely. Returning to the old days and old ways in totality? Unlikely. For organizers of events the critical question is not only about how to protect their attendees and themselves, but who will still go?
Peter C. Pang* is Chairman and Managing Partner of IPO PANG XINGPU LAW FIRM., His expertise includes corporate law and formation, franchising – inbound and outbound, mergers and acquisitions, real estate acquisitions, private placement, technology transfer, joint venture formation and business alliances, and trade secrets and intellectual property protection. Mr. Pang’s over 35 years of law practice in the People’s Republic of China and the United States places him amongst a handful of US-China lawyers with Asian International Expertise and in-depth appreciation for both the Western and Asian cultural and business differences and sensitivities. Mr. Pang is an attorney who “not only knows, but knows how” to close a deal, litigate vigorously and represent clients zealously. We don’t sell time, we sell solutions.