By Celeste Bott

Law360 (June 24, 2021, 7:57 PM EDT) -- Delta Air Lines wants out of a suit brought by passengers seeking refunds for coronavirus-related flight cancellations, Harvard University dodged claims it owes tuition reimbursements for shifting to online instruction in the pandemic, and Florida won a bid to temporarily block the federal government from enforcing its ban on cruises due to COVID-19.

While courts across the country have altered procedures, restricted access and postponed certain cases to stem the spread of the coronavirus, the outbreak has also prompted litigation across the country.

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

Employment

An Illinois-based liquor retailer was hit Tuesday with a proposed class action in federal court claiming the company unlawfully failed to accurately calculate overtime wages for workers whose pay included COVID-19-related compensation bumps.

Former employee Victor Sanchez alleged that Gold Standard Enterprises Inc., which does business as Binny's Beverage Depot, promised to pay its workforce more money to work through the pandemic, but then failed to properly factor those wages into its calculations when paying its Illinois workers for their overtime work.

Sanchez says his and other workers' overtime rates should have increased with the pandemic pay bumps because the amounts should have been factored into their regular pay rates. But Binny's didn't factor the extra compensation into its calculations, which means the retailer "substantially underpaid its workforce when they worked overtime while risking their lives," he alleged.

And workers at a Washington dialysis company have urged a federal judge to grant class certification in their suit alleging the company failed to pay them premium pandemic wages, arguing that all members have the same legal and factual claims.

Workers for Total Renal Care Inc., a subsidiary of DaVita Inc., asked U.S. District Judge James L. Robart to sign off on a proposed class of employees who were commonly affected when the company allegedly flouted a promise to provide them with hazard pay, despite the fact that COVID-19 was declared a public health emergency.

Commercial Contracts

Delta Air Lines is asking a Georgia federal judge to dismiss consolidated class actions accusing it of failing to refund customers for COVID-19 pandemic-related flight cancellations, saying the customers haven't shown how the airline failed to uphold its end of a contract.

In a motion to dismiss filed Wednesday, Delta said it has paid out more than $3 billion in refunds due to the pandemic and honored tickets already purchased before the outbreak. In the suit, the customers claim the airline didn't promptly provide refunds or inform them, but don't show anywhere that the airline breached its contract, Delta said. The airline said it promises only that refunds for credit card payments will "typically" be made within seven business days and refunds for cash payments will "typically" be made within 20 business days.

Also on Wednesday, a Massachusetts federal judge said Suffolk University can't hide behind the principle of academic freedom to escape a pair of suits by students seeking partial tuition refunds after the pandemic shifted classes online.

U.S. District Judge William G. Young said his decision was in line with at least eight others involving efforts to recover tuition money under Massachusetts law due to the pandemic. In those cases, the courts rejected the argument that contract claims are just "creatively labeled" educational malpractice claims that impinge on the schools' academic freedom.

The students behind the two putative class actions — Julia Durbeck in one case, and Mary Ann Foti and Anna Francesca Foti in the other — never claimed Suffolk provided a substandard education in the Spring 2020 semester, the judge said.

In a similar case, a federal judge has tossed a proposed class action brought by Harvard University students seeking refunds for classes forced online by COVID-19, finding they could not have reasonably expected that the school would guarantee in-person learning even during a global pandemic.

U.S. District Judge Indira Talwani said Harvard's promotional materials touting the benefits of its Cambridge, Massachusetts, campus, hands-on learning, networking opportunities and other perks of attending the renowned Ivy League school do not amount to a binding contract to offer these services regardless of the circumstances.

Personal Injury & Medical Malpractice

A Maryland federal judge on Wednesday threw out a suit by a Southwest Airlines Co. flight attendant alleging the airline held an unsafe training session that exposed her to COVID-19 and led to her husband's death, finding that allowing the suit to go forward would "open the floodgates" for similar suits.

U.S. District Judge Stephanie A. Gallagher said that while the majority of factors weigh in favor of letting Carol Madden's suit go forward, the effect of doing so would permit any number of third parties to file similar suits alleging that their spouses or acquaintances' employers got them sick.

The judge also found that despite Madden's insistence that her husband must have been infected through her because of the training session, the ubiquity of COVID-19 creates uncertainty as to whether that is the case, as incidental and unavoidable contact can also transmit the virus.

Also on Wednesday, a Third Circuit panel challenged New Jersey nursing homes seeking to have suits over COVID-19 deaths unfold in federal court on the grounds they acted under the federal government's authority as part of its pandemic response, questioning whether the facilities were merely complying with federal regulations.

During a hearing on their appeal of a district court ruling sending the matters back to state court, counsel for Andover Subacute Rehabilitation Center I and a sister facility argued that the cases were encompassed by the so-called federal officer removal statute, which confers federal jurisdiction over defendants who were "acting under" a federal officer or agency.

Consumer Protection

Missouri Attorney General Eric Schmitt announced Wednesday that televangelist Jim Bakker and his company Morningside Church Productions Inc. will pay as much as $156,000 in restitution to resolve claims that he marketed "Silver Solution" as a cure for the virus that causes COVID-19.

The state sued Bakker and Morningside in March 2020, after seeing a clip from his show advertising the product as being able to cure the coronavirus. According to the consent judgment filed Tuesday, Bakker offered Silver Solution as a quid pro quo: dosages of the product in exchange for contributions of $80 to $125 to Morningside Church between Feb. 12 and March 10, 2020.

Bakker was among several entities that received warnings from the U.S. Food and Drug Administration in March last year to stop pushing unapproved drugs as COVID-19 cures.

Public Policy

Several New York landlords and their trade group are continuing to seek an emergency order blocking enforcement of a state law preventing most pandemic-era residential evictions, saying a lower court gave too much deference to state lawmakers.

There is no longer a COVID-19 health emergency in New York, the landlords and Rent Stabilization Association said in a June 18 motion to the Second Circuit for an injunction and expedited appeal. Now that Gov. Andrew Cuomo has lifted most pandemic restrictions across the state, the landlords' due process claims should be taken seriously, they said.

The filing came on the heels of a June 11 order from U.S. District Judge Gary R. Brown in favor of New York Chief Administrative Judge Lawrence K. Marks denying the landlords' motion to block enforcement of the COVID-19 Emergency Eviction and Foreclosure Prevention Act, currently in place through Aug. 31.

And a Florida federal court has agreed to temporarily block the U.S. Centers for Disease Control and Prevention's pandemic-related restrictions on the cruise industry, ruling that the Sunshine State is "highly likely" to succeed on its claim that the agency exceeded its authority with the regulations.

In a 125-page order, U.S. District Judge Steven D. Merryday granted the Florida's request for a preliminary injunction, agreeing with the state that it suffers "an immediate danger" of a continuing injury fairly traceable to the CDC's regulations. And that danger can be redressed by shutting down the regulations, he said.

Under the injunction, the agency is temporarily prohibited from enforcing its rules against a cruise ship arriving in, within or departing from a Florida port. The judge said, however, that the injunction won't take effect until July 18, when the conditional sailing order will have unwound to be only nonbinding "considerations" or "recommendations."

Native American

The Prairie Band Potawatomi Nation and the Miccosukee Tribe of Indians of Florida have told a D.C. federal judge that they were again shortchanged by the Treasury Department's distribution of pandemic relief funds when the agency tried to fix problems with an earlier payout.

The federally recognized Prairie Band and Miccosukee Tribe told the court that a May distribution by the Treasury Department was supposed to provide more money to tribes that weren't afforded enough funding in a May 2020 distribution, which the D.C. Circuit found relied on population data that fell far short of tribes' true membership numbers.

While Title V of the Coronavirus Aid, Relief and Economic Security Act requires the federal government to share $8 billion for tribal governments based on their increased spending due to the pandemic, the 2021 distribution was "based on the percentage by which a tribe's enrollment was undercounted in the 2020 distribution, a figure that has no cognizable connection to actual increased expenditures or to Treasury's previously announced proxy for increased expenditures: tribal population, or enrollment," the motion said.

Insurance

The owner of the Thompson Seattle Hotel has urged a federal court not to toss its COVID-19 business interruption suit against an Allianz unit, saying science supports its argument that the presence of the coronavirus physically alters air, causing "physical loss or damage."

First and Stewart Hotel Owner LLC is arguing that its suit against Fireman's Fund Insurance Co. isn't based solely on government orders or economic loss, but rather on the latest scientific findings. That science shows the coronavirus causes "property loss or damage" by physically altering indoor air, the hotel said.

And the operators of almost 50 dental clinics in Arkansas and Missouri told an Arkansas federal court Monday that Cincinnati Insurance Co. owes them coverage for losses they sustained because of the coronavirus pandemic.

Also on Monday, a handful of Massachusetts restaurants pressed the First Circuit to fix what they deemed a Boston federal judge's errors in finding that their insurance policy doesn't cover pandemic-related losses. 

A group of Golden Corral buffet owners fought back Thursday against their insurers' motion to dismiss their COVID-19 business-interruption suit, requesting that the Iowa federal court grant oral argument and allow further factual findings.

In Illinois, a mattress company has asked the Seventh Circuit to revive its COVID-19 business-interruption suit seeking coverage for its 52 stores, saying the lower court wrongly concluded that a virus exclusion bars losses caused by government closure orders.

And several business-interruption lawsuits against various insurers were tossed this past week, including those brought by Michigan eateries against Cincinnati Insurance, a New Jersey medical practice against Hanover Insurance Group, St. Louis law firm Hais Hais & Goldberger against a Hartford unit, a Miami Beach hotel against Zurich American Insurance and a Manhattan cafe against XL Insurance America Inc.

--Additional reporting by Eli Flesch, Bill Wichert, Daphne Zhang, Shawn Rice, Brian Dowling, Brett Barrouquere, Nadia Dreid, Andrew Westney, Mike Curley, Lauraann Wood, Irene Spezzamonte, Andrew Westney, Chris Villani, Emma Whitford and Hailey Konnath. Editing by Breda Lund.

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