By Celeste Bott

Law360 (March 11, 2021, 7:19 PM EST) -- Gap must pay rent for its Manhattan stores despite lockdown orders, a New Hampshire university has agreed to settle a suit brought by students seeking tuition refunds, and UPS wants out of a suit claiming it failed to adequately protect workers from COVID-19.

While courts across the country are altering procedures, restricting access and postponing certain cases to stem the spread of the coronavirus, the outbreak has also prompted a wave of litigation across the country.

Here's a breakdown of some of the COVID-19-related cases from the past week.

Public Policy

A suit challenging capacity limits for ghost tours in Salem, Massachusetts, during the COVID-19 pandemic may be rendered moot if the governor continues to loosen restrictions for businesses, a federal judge said at a hearing Tuesday.

U.S. District Judge Leo T. Sorokin considered the state's motion to dismiss a suit brought by Colonial Ghosts LLC, doing business as Salem Ghosts, and a related entity called Zaal Ventures Corp., as well as the tours' request that he block emergency rules that limit them to just 11 participants on their walking tours.

The tour operators say their First Amendment rights are being violated because their form of speech is being treated differently than gatherings for political speech, which have no capacity limits. But the state is slated to begin the final phase of its reopening plan on March 22. If the new guidance raises the limit on walking tours to 50 — the maximum allowed in non-pandemic times under a local ordinance — Judge Sorokin did not think there would be anything left for him to do.

In Washington, a pair of grocery industry groups fired back at Seattle's request for a federal court to toss their lawsuit over the city's pandemic hazard pay ordinance, arguing the law has "no legitimate connection" to protecting workers and the public.

The Northwest Grocery Association and the Washington Food Industry Association urged the court Monday not to grant Seattle's motion to dismiss, saying the city council ordinance singles out certain workers and not others, in violation of federal and state equal protection requirements.

Seattle's Grocery Employee Hazard Pay Ordinance grants a $4 hourly wage hike to workers at grocery stores of a certain size. But the associations argued that the ordinance unlawfully interferes with certain employers and not others, in violation of the equal protection clauses of the federal and Washington state constitutions.

Retail & E-Commerce

Online sellers faced tough questions Wednesday from a Sixth Circuit panel trying to figure out why a federal judge's order barring the Kentucky attorney general from investigating alleged price-fixing by Amazon merchants should stand even though the enforcer remains free to investigate the same conduct by brick-and-mortar stores.

A federal judge barred the Kentucky attorney general from applying the state's price-gouging statutes, "including by subpoena, investigation or prosecution, to Amazon suppliers in connection with offers or sales on Amazon."

That order — which could affect enforcement nationwide if upheld on appeal — left intact all other price-gouging investigations under the state's emergency declaration for the COVID-19 pandemic, a distinction questioned by the panel as the Kentucky enforcer appeals.

Consumer Protection

Southern New Hampshire University has agreed to pay $1.25 million to settle a suit brought by students seeking tuition and fee refunds in the wake of pandemic-related closures, the students told a New Hampshire federal court.

The deal appears to be the first of its kind as a slew of universities around the country battle similar claims brought by students.

In her May 2020 proposed class action complaint, student Brianna Wright had claimed that the university breached its contract with its students by not providing in-person instruction during the spring semester 2020. Like most other universities, SNHU had shifted its classes online as COVID-19 tore through the country.

SNHU maintains that it didn't breach its contract with students, but said that the proposed settlement is "best for SNHU's learners." Students will get partial refunds from the settlement fund, according to a statement from the university.

And a New Jersey federal court has tossed a proposed class action accusing Capital One Bank of trying to dodge refunds for flights canceled during the COVID-19 pandemic, ruling that the case is moot since the suing cardholder was eventually reimbursed.

Exhibits included in the court filings by plaintiff Ellen Fensterer show that she received a refund of $4,906.31, which is the exact amount she was charged, and that the cardholder "reward" points she'd used for the purchase of British Airways flights were returned to her account, U.S. District Judge Renee Marie Bumb noted in her decision.

Sports & Betting

ClubCorp USA Inc. urged a California federal court Tuesday to reconsider its refusal to send to arbitration a suit claiming the private club operator wrongly charged fees during the pandemic, arguing that its members indisputably had access to club bylaws stating they were bound by arbitration agreements.

California club members Jeffrey Cuenco and Linda Hong claim in their proposed class action that the club operator charged its monthly membership fees at full price even while its clubs were shut down last year due to COVID-19. ClubCorp had asked the court to toss the suit or send it to arbitration, arguing that the bylaws of its individual clubs — which include arbitration clauses — were incorporated by reference into their membership applications.

Last week, U.S. District Judge Dana M. Sabraw rejected ClubCorp's request, finding that there was a factual dispute about whether Cuenco and Hong were actually bound by arbitration agreements. The judge noted that the members have argued the bylaws were neither known nor easily available to them when they applied for membership.

There was "clear error" in that arbitration ruling, ClubCorp said in Tuesday's motion for reconsideration, adding that any additional discovery "would be unjust."

Employment

Amazon and a former employee who claimed he was fired in retaliation for reporting that a shift manager at a New Jersey facility flouted coronavirus safety protocols told a Garden State federal judge Tuesday they have resolved the dispute.

David J. Bailey and Amazon.com Inc. filed a one-page stipulation of dismissal with prejudice on Tuesday, telling U.S. District Judge Robert B. Kugler they have resolved the matter. The filing does not include details about the settlement, and representatives for the parties did not immediately respond to requests for comment Wednesday.

Bailey, who was tasked with enforcing such safety measures as an Amazon learning ambassador, said he was fired in August after complaining that Kristopher Lauderdale refused to keep at least six feet away from other workers, according to the complaint filed in October asserting a violation of New Jersey's Conscientious Employee Protection Act.

Amazon has also told a New York federal court that a former warehouse worker's proposed discrimination class action claiming its response to COVID-19 endangered workers of color should be tossed because the complaint shows the online retail giant treated white and minority workers the same way.

The retail giant asked the court to dismiss the suit from Christian Smalls, who has become one of the faces of the protest movement against Amazon, because he does not plausibly claim that race was the "but for" cause of the policies he's challenging.

And a hotel union has urged a New York federal judge to confirm three arbitration awards requiring a Manhattan hotel to give severance and other benefits to workers laid off during the pandemic, saying the decisions aligned with their collective bargaining agreement.

In its petition Tuesday, the New York Hotel and Motel Trades Council, AFL-CIO said that Stanford New York LLC acknowledged when it shut down in April 2020 that severance and benefits were owed to the workers affected by the closure. But the hotel hasn't yet paid them or made contributions to the health benefit fund on their behalf, as required by their CBA, the union said.

The union took Stanford New York to arbitration over the matter and won three awards that require the hotel to either make a payment or post a bond for the severance and health care contributions, according to the petition. Those awards were "carefully grounded" both in the CBA's provisions and industry practice, the union said.

In Kentucky, UPS has asked a federal judge to toss a proposed class action a Teamsters local filed accusing it of rampant health and safety failings that leave union members vulnerable to exposure to COVID-19, arguing the claims belong before regulators, not a judge.

In a motion to dismiss filed Monday, United Parcel Service said the court does not have jurisdiction to decide a lawsuit filed by Teamsters Local 2727 President Tim Boyle. The suit accuses the company of maintaining "squalid conditions" at a Louisville facility that threaten the health of union members amid the pandemic.

The delivery company argued the court should allow workplace safety regulators such as the Kentucky Division of Occupational Safety and Health Compliance to resolve the union's complaints, as they are better positioned than courts to respond to changing science and conditions.

And in New Mexico, a federal judge refused to freeze a local mandate requiring first responders to get a COVID-19 vaccine, dealing a blow to a corrections officer who claimed the vaccine requirement violated his right to due process and bodily integrity.

U.S. District Judge Martha Vazquez declined Isaac Legaretta's restraining order request against four Dona Ana County officials but agreed to an expedited briefing schedule for the emergency relief.

Legaretta, an employee at the Dona Ana County Detention Center, sought the restraining order and a preliminary injunction preventing the county from enforcing the vaccine mandate and disciplining or firing him if he failed to comply. However, he hasn't been fired for refusing the vaccine, and a write-up he received for failing to comply didn't count as a form of discipline, the court found.

Personal Injury & Medical Malpractice

A Pennsylvania state court judge tossed aside a Pittsburgh-area nursing home's arguments on Monday that it was immune from a former housekeeper's COVID-19 wrongful death suit under federal law, after federal courts had twice kicked the case back to the state court with rulings that the federal law didn't apply.

Hours after video arguments on Monday afternoon, Allegheny County Court of Common Pleas Judge Christine A. Ward denied preliminary objections from Comprehensive Healthcare Management Services LLC, which runs the Brighton Rehabilitation and Wellness Center in Beaver County and is accused of mishandling the pandemic's effects, resulting in the underlying lawsuit from the estate of Elizabeth Wiles and its administrator Vanessa Sherod.

Judge Ward's order did not explain why the objections were overruled. CHM had argued that the federal Public Readiness and Emergency Preparedness Act protected the decisions it made related to its handling of the virus, while the Pennsylvania Workers' Compensation Act kept it from being sued for claims covered by workers' compensation.

Health Care

Adventist Health System has settled its suit accusing a California-based asset management company of conspiring with its outside counsel to defraud the hospital system of $2 million through a failed $57.5 million deal for personal protective equipment during the COVID-19 pandemic.

U.S. District Judge Paul G. Byron on Monday granted the parties' joint motion to stay the case until Oct. 12, when Tomax Capital Management Inc. and principal Yehoram Tom Efrati's final payment to AdventHealth is due under an agreement the sides finalized during a mediation session last week, according to filings in federal court in Orlando, Florida.

Details about the payments were not immediately available Monday. AdventHealth's settlement with Tomax and Efrati came on the heels of a separate deal with defendant and California attorney Michael H. Weiss and his firm, and both agreements were reached shortly after Judge Byron denied the defendants' respective motions to dismiss.

Real Estate

The Gap Inc. can't use the pandemic and ensuing lockdown orders as an excuse not to pay rent for a pair of stores in Manhattan, a New York federal judge has ruled, saying the clothing retailer wasn't prevented from offering curbside pickup, online order fulfillment or limited in-store shopping.

U.S. District Judge Laura Taylor Swain on Monday tossed Gap's claims that its lease for a pair of Gap and Banana Republic stores at 59th Street and Lexington Avenue became invalid at the onset of the coronavirus pandemic last March when stores in New York were required to close and that it bears no liability to pay rent after that date. Judge Swain granted summary judgment in favor of the retailer's landlord, Ponte Gadea New York LLC.

The judge said Gap hasn't shown that the COVID-19 pandemic and governmental restrictions frustrated the principal purpose of the lease — the operation of the two stores — to the point that the rental didn't make sense.

And a group of landlords has sued the city of Pittsburgh in Pennsylvania state court over its recently passed moratorium on evictions during the pandemic, claiming that the City Council's ordinance forces landlords to stay in or renew contracts in violation of the state and U.S. constitutions.

The Landlord Service Bureau Inc., representing 4,200 landowners and property managers in and around Pittsburgh, said the city's extension of a federal eviction ban imposes requirements on businesses that are prohibited by state law.

The landlords asked the court for a declaration that the city's eviction moratorium was illegal and unconstitutional, and sought a court injunction barring the city from enforcing or implementing it.

Insurance

A luxury Manhattan hotel has sued its insurer in New York state court, arguing it was wrongfully denied coverage for pandemic-related losses and quoting former President Donald Trump, who implied insurers should pay virus claims if pandemics aren't specifically excluded from policies.

Hôtel Plaza Athénée New York argues in its complaint that it is entitled to business interruption coverage under its insurance policy from Continental Casualty Co. because the presence of individuals who have the coronavirus makes the property unsafe, creating a direct physical loss to its property.

The hotel added that though its policy does contain exclusions, the pandemic itself was not excluded.

And the company behind "Tina: The Tina Turner Musical" sued its insurer Wednesday in New York state court, arguing the insurance company wrongfully denied its claim seeking to cover losses from shows canceled by state coronavirus shutdowns.

Tina Turner Musical, or TTM, argues that its policy from Chubb Insurance Co., which TTM says was effective from July 2019 to October 2020, should cover its claim because the company's losses stem from state orders temporarily closing theaters. This, the production company says, is not excluded in its event cancellation insurance policy.

Last March, state authorities ordered the closure of New York City's theaters, which remain closed to date. Due to the state and city orders, the Lunt-Fontanne Theater, which houses the "Tina Turner Musical" production, had to close its doors and cancel all future performances.

This week also brought a slew of dismissals of similar suits arguing for insurance coverage for coronavirus-related business losses, with judges throwing out cases brought by two flower importers seeking $2 million in coverage from Travelers Property Casualty Co.; an Indiana hotel group with policies from Emcasco Insurance Co. and Union Insurance Co. of Providence; and a Kentucky sportswear company that had sued Twin City Fire Insurance Co.

Restaurants fared no better, with claims brought by three Arizona restaurants against Cincinnati Insurance Co., an East Coast seafood restaurant chain against Strathmore Insurance Co., two Boston restaurants against Greater New York Mutual Insurance Co., and a Florida restaurant chain against Colony Insurance Co. all thrown out.

--Additional reporting by Hailey Konnath, Lauren Berg, Danielle Nichole Smith, Chris Villani, Max Kutner, Tim Ryan, Matthew Santoni, Dave Simpson, Nathan Hale, Bryan Koenig, Joyce Hanson, Jeannie O'Sullivan, Alexis Shanes, Melissa Angell, Daphne Zhang and Shawn Rice. Editing by Adam LoBelia.

For a reprint of this article, please contact reprints@law360.com.