Coronavirus Litigation: The Week In Review

By Celeste Bott
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Law360 (May 6, 2021, 6:27 PM EDT) -- A D.C. federal judge has vacated the U.S. Centers for Disease Control and Prevention's nationwide eviction ban, Pfizer and BioNTech must face claims they poached research technology while testing their COVID-19 vaccine, and Kentucky's attorney general has a green light from the Sixth Circuit to continue price-gouging probes into Amazon sellers.

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.


Amazon used a protesting worker's dust-up with a colleague as an excuse to fire him for his roles in a March 2020 walkout and other actions against the company's COVID-19 safety policies, a National Labor Relations Board attorney said Tuesday during opening arguments in a retaliation trial.

NLRB attorney Evamaria Cox disputed Amazon's claim that it fired worker Gerald Bryson for hurling epithets and insults during the squabble at an April 2020 rally outside the company's Staten Island warehouse, saying Amazon "routinely condones and rarely punishes with termination" the words Bryson used.

Prosecutors in the NLRB's Brooklyn regional office have accused Amazon of violating the National Labor Relations Act by firing Bryson, who took part in and led some of a series of high-profile protests at Amazon's JFK8 warehouse during the early days of the COVID-19 pandemic. The suit is based on a charge filed by worker advocacy group Make the Road New York, which represents Bryson in the case.

And more than 200 correctional officers at a Pennsylvania federal prison claim they're owed hazard pay for working in close proximity to prisoners, colleagues and facilities infected with COVID-19, according to a lawsuit filed in the U.S. Court of Federal Claims.

The 235 officers in the lawsuit say the pandemic meets the definitions of "physical hardship and hazards," entitling them to between 4% and 25% extra environmental pay or hazard pay differentials for their work at Federal Correctional Institution McKean, the medium-security prison in Lewis Run, McKean County. The officers are seeking back pay at the higher rate, plus interest and the recalculation of any overtime to account for the increased pay under the Fair Labor Standards Act.

In Michigan, a television journalist has hit her former employer with a sex discrimination and retaliation suit, claiming the station was more lax with COVID-19 safety protocols for men than women and then fired her after she complained of disparate treatment.

Former WZZM news anchor Shanna Grove claimed in her complaint that the Grand Rapids-based station took a laissez-faire approach to COVID-19 safety among male employees and admonished Grove and another female reporter for complaining, attempting to track down the source of the ethics complaints Grove filed confidentially with station owner Tegna Inc. before firing her in February.

Public Policy

A D.C. federal judge on Wednesday vacated the U.S. Centers for Disease Control and Prevention's nationwide moratorium on evictions that aims to protect renters facing hardship in the wake of the pandemic, ruling the agency exceeded its statutory authority.

U.S. District Judge Dabney L. Friedrich said in a 20-page order that Congress did not express a clear intent to grant the CDC such sweeping authority under the Public Health Service Act. The nationwide eviction ban, first put in place by the Trump administration, was recently extended until June 30.

The ruling is a win for a group of realtors and property owners who lodged an expedited request for summary judgment against the CDC, but the U.S. Department of Justice has already told the judge in a filing that the government will appeal the decision to the D.C. Circuit.

In a move to support the cruise industry during the COVID-19 pandemic, Texas has filed a motion to intervene in Florida's suit seeking to block the federal government from enforcing its now-yearlong ban on cruises, following Alaska's lead in looking to join the case.

Texas Attorney General Ken Paxton filed the motion Wednesday in Florida federal court, backing up the Sunshine State's case against the U.S. Department of Health and Human Services and the Centers for Disease Control and Prevention. The CDC's series of "no-sailing" or "conditional-sailing" orders have hurt the Texas passenger cruise industry and the many Texas businesses that support it, Paxton said, noting that Galveston is the fourth-largest cruise port in the United States.

A civil rights watchdog group has dropped its federal lawsuit against a judge for the Pennsylvania Court of Common Pleas after he and others in Allegheny County agreed to offer online access to court proceedings for observers.

The Abolitionist Law Center told the federal court in Pittsburgh that it was voluntarily dismissing its case against Allegheny County Court of Common Pleas Judge Anthony Mariani, who had previously required observers to come to his Pittsburgh courtroom in person even when others were participating virtually.

A New Jersey gym has taken aim at nearly $140,000 in proposed fines over its alleged defiance of coronavirus outbreak measures by challenging the validity of the restrictions, an argument the state health commissioner said has been repeatedly rejected by a state court throughout the parties' ongoing feud.

Atilis Gym in Bellmawr has urged Superior Court Judge Robert T. Lougy to knock down Commissioner Judith Persichilli's demand for a fine of roughly $15,500 for each of the nine days late last year the business purportedly violated the judge's court order by not following state protocols aimed at curbing the spread of COVID-19.

And South Dakota's governor has sued the federal government over the U.S. Department of the Interior's fireworks ban during this year's July Fourth celebration at Mount Rushmore, saying the ban is based on "vague" and unfounded concerns about coronavirus spread, tribal opposition and environmental impacts.

Gov. Kristi Noem claims President Joe Biden's DOI in March reneged on a Trump administration agreement to allow fireworks displays at the memorial, arguing that the new administration made no attempt to justify its "abrupt about-face," according to the complaint filed in South Dakota federal court.


Texas, Mississippi and Louisiana launched a constitutional challenge to a federal law's prohibition against using federal coronavirus aid to offset tax cuts, the latest in a string of suits that Republican attorneys general have filed against the statute.

The states asked a Texas federal court Monday to enjoin the U.S. Department of the Treasury and Treasury Secretary Janet Yellen from enforcing the American Rescue Plan Act's so-called tax mandate, which bars states from using aid to offset a reduction in net tax revenue. The law would require states that violate the provision to return the aid used to offset a tax cut, which the states claim violates the Constitution's 10th Amendment and spending clause.

Also this week, Treasury told a federal court to reject a similar challenge by the state of Arizona. 

Real Estate

A group of landlords is suing the Consumer Financial Protection Bureau over a new disclosure rule that aims to inform tenants of their protections from eviction during the COVID-19 outbreak, claiming that the rule violates the landlords' First Amendment rights by requiring them to lie.

The CFPB's new interim final rule requires that debt collectors and attorneys working for landlords provide "clear and conspicuous" written notice to tenants about their eviction protections under a September 2020 moratorium on evictions ordered by the U.S. Centers for Disease Control and Prevention.

But attorneys for the New Civil Liberties Alliance argued in a lawsuit filed Monday that the CFPB's interim final rule induces "false speech," disregards prior cases that found the CDC moratorium invalid and that the moratorium is no longer needed as vaccinations increase and pandemic conditions improve.

And a group of small New York landlords and a major trade association are seeking to stop statewide eviction protections recently extended through August, claiming Thursday that legislation signed by Gov. Andrew Cuomo is unconstitutional.

The landlords joined the Rent Stabilization Association in a federal complaint against Lawrence Marks, the state's chief administrative judge, and others. They argued that the COVID-19 Emergency Eviction and Foreclosure Prevention Act forces them to distribute materials to their tenants endorsing a law they disagree with, in violation of the First Amendment and state constitution.

Consumer Protection

Kentucky's attorney general can resume price-gouging investigations into Amazon sellers after a Sixth Circuit panel found that the prospect of one state affecting national online sales isn't an "inevitable" result of state-level price-gouging probes, but is instead "entirely dependent upon Amazon's independent decisionmaking."

Amazon chose to prohibit its merchants from restricting their sales to certain states or from varying their prices across state borders, the panel said, meaning that a Kentucky federal judge was wrong to halt the Kentucky enforcer's investigations based on the Constitution's dormant commerce clause, which prohibits state regulation from crossing borders.

U.S. District Judge Gregory F. Van Tatenhove of the Eastern District of Kentucky was wrong to find that the Online Merchants Guild, a trade group seeking the preliminary injunction against the probe, would have been likely to secure a permanent halt to the investigation, the judges said.


Robbins Geller Rudman & Dowd LLP and Pomerantz LLP have been tapped to represent AstraZeneca investors in a Manhattan federal court suit alleging the company withheld information about problems in the clinical trial of its COVID-19 vaccine.

U.S. District Judge J. Paul Oetken appointed the two firms lead counsel in the proposed class action on Wednesday and at the same time consolidated other suits making similar allegations against AstraZeneca PLLC. The order also named the Detroit firm VanOverbeke Michaud & Timmony PC as additional counsel representing co-lead plaintiff the Wayne County Employees' Retirement System and the Portnoy Law Firm as additional counsel representing the other co-lead plaintiff, individual investor Nuggehalli Balmukund Nandkumar.

In the first-filed suit, a proposed class action launched in January, AstraZeneca investor Vladimir Zhukov alleged that the drug company and its brass are liable for securities fraud because they had concealed issues with the clinical trial that made it unlikely that the company's vaccine would be approved for use in the U.S. Zhukov's suit was among those consolidated into In re AstraZeneca PLC Securities Litigation.   

Intellectual Property

A California federal judge has refused to toss Allele Biotechnology and Pharmaceuticals Inc.'s suit claiming Pfizer and BioNTech poached research technology while testing their COVID-19 vaccine.

U.S. District Judge Marilyn L. Huff on Tuesday denied Pfizer Inc. and BioNTech SE's motion to dismiss the suit over Allele's patented fluorescent protein called mNeonGreen, which Allele has alleged Pfizer and BioNTech used to select their vaccine candidates and do clinical trials, enabling them to be first to market a COVID-19 vaccine.

The defendants had urged the court to reject Allele's "doomsday warnings" that dismissing the case under the safe harbor provision of the Hatch-Waxman Act over their vaccine will destroy patent rights.


A trade show operator was wrong to file a $100 million suit in California over event cancellations and postponements caused by the coronavirus pandemic, insurers told a federal court, arguing their policies say coverage disputes should go to New York.

W.R. Berkley Syndicate Ltd. and Great Lakes Insurance SE have invoked a forum-selection clause, saying the suit should be sent to New York federal court to decide whether Emerald Holding Inc. is covered for trade-show events it had to cancel or postpone in response to the COVID-19 pandemic.

In Pennsylvania, a federal judge appointed The Moskowitz Law Firm and Carlson Lynch LLP as co-lead counsel to represent policyholders in their multidistrict litigation against Erie Insurance Co. seeking coverage for COVID-19 business interruption losses. Last December, a seven-member Judicial Panel on Multidistrict Litigation centralized in Pennsylvania more than a dozen cases alleging Erie has wrongfully refused to cover businesses' lost income due to COVID-19 stay-at-home orders.

Also in Pennsylvania, a federal judge on Wednesday freed a State Farm insurance unit from having to pay for a fashion boutique's pandemic-related losses, holding that the retailer failed to allege property damage and that the policy's virus exclusion bars coverage.

And Pebblebrook Hotel Trust has filed suit in Pennsylvania state court against a group of more than two dozen insurers alleging it was wrongly denied coverage for financial losses sustained at its portfolio properties as a result of the COVID-19 pandemic.

The Philadelphia Eagles have also asked a federal judge to send their pandemic insurance case against Factory Mutual back to state court to address what the team called novel legal questions, a move that could also give the football franchise higher odds of avoiding dismissal.

The Eagles say Factory Mutual is refusing to honor their contract and pay up to $1 billion in coverage for lost revenue after they had to limit attendance at the Lincoln Financial Field stadium under COVID-19 restrictions, according to a one-count complaint seeking a declaratory judgment on the matter that was first filed in the Philadelphia Court of Common Pleas in March.

On Monday, a Zurich unit told a New Jersey federal judge that the owners of hotel and restaurant franchises including Wendy's, TGI Friday's, Marriott and Hilton can't ask the court to vacate its order dismissing their suit seeking $40 million in COVID-19-related losses. American Guarantee and Liability Insurance Co. asked the court to reject the franchise owners' bid to vacate its March order tossing the suit, saying the group's assertion that the court committed an error is "absurd."

Also on Monday, U.K. insurer Beazley Underwriting Ltd. pushed back on LA Fitness' bid to throw out its California federal suit over $10 million in pandemic-related losses, saying the gym is avoiding courts in the Golden State where policyholders have faced adverse decisions in their COVID-19 fights.

And Chubb Ltd. unit Westchester Surplus Lines Insurance Co. on Tuesday secured another court victory for insurers in a wave of suits over denials of business interruption coverage claims arising from the COVID-19 pandemic, as a Florida federal judge found that a restaurant's inability to sufficiently allege physical property damage doomed its claims.

In an amicus brief filed Wednesday, two national insurance company trade groups have thrown their support behind the Cincinnati Insurance Co. in its Seventh Circuit coverage fight over a steakhouse and brewery operator's COVID-19 losses, arguing that all-risk policies do not cover pure economic losses.

Also at the Seventh Circuit, an Illinois bar and a jewelry store have urged the appellate court to reverse a lower court's finding that their insurance policies' virus exclusion bars coverage for pandemic-related losses, arguing that the district court wrongly held that it was COVID-19 instead of government orders that caused their losses.

On Wednesday, a Texas federal judge held that Factory Mutual Insurance Co. can't escape Cinemark's suit asserting that the coronavirus damages property by changing the content of the air, saying the theater chain's claims are distinguished from those in another business interruption case that was recently dismissed.

--Additional reporting by Daphne Zhang, Shawn Rice, Max Jaeger, Matt Fair, Nathan Hale, Khorri Atkinson, Adam Lidgett, Matthew Santoni, Al Barbarino, Braden Campbell, Paul Williams, Bill Wichert, James Nani, Lauren Berg, Bryan Koenig, Ethan Beberness, Emilie Ruscoe, Joyce Hanson and Emma Whitford. Editing by Alanna Weissman.

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