If you have been reading the papers, you know this coming flu season promises to be the end of civilization as we know it. The H1N1 "swine flu" has government officials and medical experts on high alert. A presidential panel of experts believes that in a worst case scenario this winter, the swine flu could infect one-half of the population, hospitalize up to 1.8 million people, and cause as many as 90,000 deaths.
Needless to say, an outbreak would cause massive attrition and possibly the cancellation of many meetings and conferences. Does your meeting contract protect you from liability if you need to cancel in such a circumstance?
Just about every hotel and convention center contract has a "force majeure" clause, but the common flu is almost never severe enough to rise to the level of a force majeure event, and most meetings go on as planned even if the country is having a worse-than-average flu season.
In most years, if you tried to cancel a meeting on the grounds that many of your attendees were afraid to attend for fear of catching the flu, hotels would laugh at you and then demand that you honor the contract. On the other hand, the common flu seldom kills or hospitalizes thousands of otherwise healthy people, or causes governments to shut down school systems like the swine flu may be poised to do in the coming months.
So this year may pose a new set of circumstances in which people decide to cancel their planned attendance at a conference. If enough of these cancellations occur, the meeting sponsor may need to cancel the entire event, and that's when the parties will start to examine whether the force majeure clause was broad enough to cover this circumstance.
The key to protecting yourself is to ensure that your force majeure clause has more than just the standard language covering "acts of God" and goes on to specifically cover "disease or epidemic." That phrase should be enough to give you a fair amount of protection, although if you wanted to put a fine point on the issue, you could make the clause more specific and state: "disease or epidemic, including swine flu, SARS, avian flu, or any other disease causing more than 20 percent of conference attendees to not attend."
Expect some push back from the conference facility; I have even had hotels in Mexico -- where the swine flu outbreak originated -- take the position that the swine flu is not a force majeure event. That's where hard negotiations and the willingness to walk away and take your business elsewhere may be what it takes to get the clause you want.
Ben Tesdahl, Esq., is an attorney concentrating on nonprofit,
corporate, tax and contract law, including meeting and convention law.
He is with the law firm of Powers, Pyles, Sutter & Verville, P.C. in
Originally published Nov. 1, 2009