Coronavirus Litigation: The Week In Review

By Celeste Bott
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Law360 (May 27, 2021, 7:10 PM EDT) -- Two New Jersey universities have escaped claims that they owe students tuition and refunds for switching to virtual instruction during the pandemic, a top New York judge is among those opposing landlords trying to overturn statewide eviction protections, and a Southwest Airlines flight attendant seeks to preserve her suit alleging the airline's failure to adhere to coronavirus safety protocols caused her to contract the virus and infect her late husband.

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.

Commercial Contracts

A New Jersey state judge has agreed to toss a proposed class action alleging Montclair State University improperly retained tuition and fees after ceasing in-person instruction due to the coronavirus outbreak, finding that the school's transition to all-remote learning was related to a declared public health emergency and thus shielded from liability.

Superior Court Judge Russell J. Passamano said during a virtual hearing that he would grant the university's motion to dismiss with prejudice an amended complaint from Montclair State student Colin Keyes because the school is entitled to such immunity under the state's Emergency Health Powers Act.

Also in New Jersey, Stevens Institute of Technology has fallen short in trying to erase a proposed class action over its switch to all-virtual classes amid the COVID-19 pandemic, with a federal judge ruling Tuesday that a student cannot pursue tuition reimbursement claims but may go after the school for not refunding fees.

In deciding Stevens' bid to toss plaintiff Leah Mitelberg's complaint, U.S. District Judge Susan D. Wigenton said the cybersecurity student's breach of contract and unjust enrichment claims may go forward with respect to the fees she paid as part of what she believed would be an in-person learning experience at the Hoboken, New Jersey, educational institution.

Real Estate

A top New York judge is among a group of defendants who have pushed back against landlords seeking to overturn statewide pandemic-related eviction protections, saying that the plaintiffs are inappropriately asking a federal court to interfere in state court matters.

Chief Administrative Judge Lawrence Marks and officials tasked with executing evictions in various counties argued that the landlords' claims that an anti-eviction law is unconstitutional must be dismissed. The Rent Stabilization Association and a group of small landlords are asking the court to violate abstention principles, the defendants said.

The RSA and its co-plaintiffs sued May 6, seeking a preliminary injunction to block enforcement of the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020. Enacted in late December and recently extended through August, the law allows most tenants who have experienced pandemic-related hardship to fill out a declaration form to pause or prevent an eviction case from proceeding against them. The law also extends protections against commercial evictions, as well as certain foreclosures.


A California judge paused a request by a former Ignite executive to collect attorney fees over claims he was fired for refusing to approve personal expenses under a Paycheck Protection Program loan, giving an appeals court time to examine the cannabis business' failed anti-SLAPP motion.

After Instagram personality Dan Bilzerian and Ignite International Ltd. lost their anti-SLAPP, or anti-strategic lawsuit against public participation, motion to toss former employee Curtis Heffernan's suit, Heffernan asked for $97,000 in attorney fees. But during a hearing Tuesday, Los Angeles Superior Court Judge Gregory W. Alarcon put the motion on ice to give a California state appeals court time to either affirm or reverse the anti-SLAPP motion.

Heffernan in July sued Bilzerian and Ignite, claiming he was fired because he tried to call attention to a proposal to misclassify a government PPP loan as income, among other alleged financial misdeeds at the company.

And the D.C. Circuit should get to consider whether Lyft drivers are engaged in interstate commerce and therefore exempt from a federal arbitration law, a worker-side employment law group said in a friend-of-the-court filing in a D.C. federal court case regarding paid sick leave.

In an amicus brief, the National Employment Law Project said the lower court should grant a driver's May 13 request to certify an interlocutory appeal of a ruling compelling her to arbitrate claims that the company denied drivers paid leave during the pandemic by misclassifying them as independent contractors.

Independent contractors often lack benefits and protections required for employees, such as minimum wage, overtime pay and paid sick time. Lyft does not give its drivers health protections, which is especially problematic during the COVID-19 pandemic, NELP argued.

Legal Ethics & Malpractice

A New York City administrative judge has tossed a slew of eviction cases that featured a tenant notice that read "Chinese Wuhan virus emergency" where it should have said "coronavirus emergency."

Civil Court Administrative Judge Anthony Cannataro dismissed dozens of cases in Staten Island's housing court in which landlord-side lawyer Nichole E. Lee is listed as the attorney of record. The reason for dismissal was given as failure to comply with notice requirements laid out in a pandemic-related court order issued in November.

A review of publicly available court records showed that in at least 35 of the 40 cases dismissed, Lee filed a petition with tenant notices attached that refer to the "Chinese Wuhan Virus Emergency" in English and Spanish. Asian American civil rights groups have condemned such references to the coronavirus pandemic as derogatory and dangerous.

Personal Injury & Medical Malpractice

A Southwest Airlines flight attendant who was infected with COVID-19 at a training session and gave it to her husband who later died has urged a Maryland federal judge to not toss her suit, saying the airline owed her husband a duty of care.

Carol Madden on Monday asked U.S. District Judge Stephanie A. Gallagher to deny a motion to dismiss filed by Southwest Airlines Co. in a wrongful death suit accusing it of failing to adhere to U.S. Occupational Safety and Health Administration recommendations regarding coronavirus safety measures at a mandatory training session.

Madden claims Southwest failed to screen attendees for COVID-19, did not require masks, and held the training session in an unventilated and crowded room with attendees situated closer than six feet to each other, which caused her to contract the virus and later infect her husband, William Madden. But Southwest contends Madden's suit fails because her husband was not its employee, therefore it owed him no duty of care. The airline argues that a duty of care only exists if a special relationship exists between Southwest and William Madden.

And a Pittsburgh-area couple have accused a physical therapist of infecting them with COVID-19 after failing to wear adequate safety gear when she visited their home for an appointment last fall.

In a complaint removed to federal court on Monday, John Boyle and Cheryl McKinney said they were both hospitalized with COVID-19 and continued to suffer medical complications resulting from an encounter with an Orthopedic & Sports Physical Therapy Associates Inc. worker who treated Boyle at his Allegheny County home in November.

Public Policy

A New Jersey state judge handed a partial victory to a state assemblyman Tuesday in ordering the New Jersey Department of Health to turn over county-level data used in reporting COVID-19 statistics, while rejecting as overbroad his demand for a log of related agency emails.

During a Zoom hearing on Assemblyman Erik Peterson's state Open Public Records Act lawsuit against the department, Superior Court Judge Mary C. Jacobson said the NJDOH must provide him with the county-level data that went into calculating COVID-19 Activity Level Index, or CALI, scores by region between October and early April.

The GOP legislator — who sits on the Assembly Health Committee and represents predominantly Republican areas — sought such information in connection with concerns over how CALI scores are being used by the administration of Democratic Gov. Phil Murphy to justify business restrictions aimed at curbing the spread of the coronavirus.


New Hampshire's complaint against Massachusetts' regulation imposing income tax on remote workers during the COVID-19 pandemic does not merit the U.S. Supreme Court's original jurisdiction, the acting solicitor general told the justices in a brief.

The Supreme Court in January had sought the opinion of the federal government before deciding whether to hear, as a matter of original jurisdiction, the complaint of one state against another. In a brief filed Tuesday night, acting Solicitor General Elizabeth B. Prelogar responded that the court had found repeatedly that original jurisdiction should "be exercised only 'sparingly,'" and the harms New Hampshire complains of do not meet that standard.

She added that court precedent does not support New Hampshire's claim that the justices do not have discretion over whether to take a case under original jurisdiction.

Native American

The Prairie Band Potawatomi Nation asked a D.C. federal judge on Tuesday to increase COVID-19 relief funds set aside for the tribe by roughly $4 million, arguing that the government didn't use accurate population data when determining the payment allocations.

The 13-page motion seeks to amend a preliminary injunction from April that set aside roughly $7.6 million in relief for the Prairie Band. The tribe is asking to notch that number up to around $11.7 million, since the current allotment "will likely not satisfy the entire shortfall" owed to the tribe.

In May 2020, the U.S. Department of the Treasury disclosed a spreadsheet that assigned a population metric of 883 to the Prairie Band, but new filings reflected in March that the department relied on a population metric of 747 for the tribe. The Prairie Band's actual certified population is 4,561, which accounts to a shortfall of roughly $12.5 million, according to the motion.


A Pennsylvania state court judge went against the majority of COVID-19 insurance rulings when she ruled Tuesday that Erie Insurance Exchange must cover Grant Street Tavern's loss of use of its property during the COVID-19 pandemic.

A federal judge ruled Wednesday that a Maryland college's claims against Continental Casualty Co. and an insurance broker are better suited for state court, sending back the case over the college's losses tied to government shutdown orders during the coronavirus pandemic.

A bid by the Philadelphia Eagles to get their own insurance dispute sent back to state court "flies in the face of reality," the team's insurer said Monday, arguing that Pennsylvania federal courts should referee their battle over whether the team's policy against loss or damage covers forced pandemic closures.

In Virginia, Markel Insurance Co. asked a federal court to throw out a suit from a group of Anytime Fitness gym owners seeking coverage for pandemic losses, saying a virus exclusion in their policies precludes any coverage.

In New York state court, a Florida casino claims a group of insurers must pay for its pandemic-related business losses because they failed to include virus exemptions in their policies. West Flagler Associates says four of its insurers conspired to deny coverage and only bothered to update their policies with contagion carveouts weeks after Florida forced its Magic City Casino and Flagler Dog Track to close.

Zurich American Insurance Co. urged the Eleventh Circuit on Wednesday to reject a national brunch restaurant chain's argument for pandemic-related coverage as making "a mockery" of the plain language in its policy.

And United Airlines and two AIG units hit Wednesday with a proposed class action accusing them of misleading customers by advertising and selling travel insurance for fees that United had scrapped in response to the coronavirus pandemic.

A Georgia federal judge won't reconsider his dismissal of a bid by Atlanta restaurants for pandemic-related insurance coverage, saying his "immense sympathy" for them doesn't change the law or the outcome of their case. U.S. District Judge Thomas W. Thrash Jr. on Wednesday denied a motion for reconsideration by 11 companies behind popular Atlanta restaurants including Joe's on Juniper and Hudson Grille.

And several suits seeking coverage for coronavirus business losses were tossed this past week: a health system's $5 million bid for coverage from Chubb unit ACE American Insurance Co.; an Arizona crystal and rock shop's suit against Ohio Security Insurance Co.; claims against American Guarantee & Liability Insurance Co. brought by owners of hotel and restaurant franchises; a Fort Lauderdale shopping mall's suit against Great American Insurance; a San Francisco landlord's bid for reimbursement of unpaid rent from Falls Lake National Insurance Co.; and a suit brought by owners of Italian restaurants in St. Louis against Cincinnati Insurance Co.

--Additional reporting by Eli Flesch, Jeannie O'Sullivan, Brian Dowling, Lauren Berg, Shawn Rice, Rosie Manins, Max Jaeger, Hannah Albarazi, Bill Wichert, Emma Whitford, Max Kutner, Y. Peter Kang, Max Fair, Paul Williams, Melissa Angell and Maria Koklanaris. Editing by Adam LoBelia.

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