By Celeste Bott

Law360 (September 10, 2020, 8:59 PM EDT) -- Tiffany & Co. says luxury goods conglomerate LVMH can't point to COVID-19 to ditch its $16.2 billion acquisition of the jeweler, Princess Cruise Lines opposes certification of a class of customers suing over its virus response, and court battles continue over a growing push for mail-in voting during the pandemic. 

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 new litigation across the country.

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

Employment

Fanatics Inc. was hit Wednesday with a proposed class action claiming the online sports apparel retailer failed to give notice required under the WARN Act before laying off hundreds of employees who were already furloughed due to the COVID-19 pandemic.

In a suit filed in the Middle District of Florida, longtime Fanatics worker Olga Calero said the company gave her and other laid-off employees just four days' warning before terminating them on Aug. 28, in violation of the Worker Adjustment and Retraining Notification Act.

The law requires that even in the event of an "unforeseeable business circumstance" like the coronavirus pandemic, the company is still required to "give as much notice as is practicable," according to the suit. In the case of Fanatics, the company likely knew near the end of March or in early April that a mass layoff was likely necessary, according to Calero, who says she was furloughed along with dozens of other employees beginning on March 20.

Amazon.com Inc. asked a Massachusetts federal court  on Wednesday to let it out of a suit claiming the online retail behemoth and its grocery unit Whole Foods Market Inc. unlawfully disciplined employees who wear Black Lives Matter face masks.

Amazon argued that employee Alice Tisme, who was allegedly sent home for wearing a Black Lives Matter mask, didn't have standing to sue because she hadn't first gone through the U.S. Equal Employment Opportunity Commission. The retail giant also argued that Tisme's racial discrimination and retaliation claims don't hold water because the Seattle-based company was enforcing a dress code for all employees rather than singling out certain workers because of their race.

And in New Jersey, the state said Wednesday a former assistant health commissioner cannot pursue whistleblower claims in state court that he suffered retaliation after being fired over what he says were his objections to performing private COVID-19 tests on relatives of Gov. Phil Murphy's chief of staff.

The state asked the court to toss the second count of Christopher Neuwirth's amended complaint for "post-termination retaliation" alleging the state provided "false and defamatory information" about him to the media under the state's Conscientious Employee Protection Act, arguing that the statute does not provide for such a cause of action.

Consumer Protection

Passengers who filed a proposed class action against Princess Cruise Lines for its handling of COVID-19 cases aboard one of its ships don't have enough injuries in common to be a class, the company told a California federal judge Sept. 4.

The April suit alleges that Princess Cruise Lines and its owner, Carnival Corp., allowed more than 2,400 passengers to board the Grand Princess ship in February but did not tell them that at least two passengers from the previous trip had coronavirus symptoms.

The cruise ship didn't impose medical screenings for disembarking or embarking passengers and made no effort to sanitize or disinfect the ship before new passengers arrived, the plaintiffs allege.

Mergers & Acquisitions

LVMH said Wednesday that it won't be able to go through with its planned $16.2 billion acquisition of Tiffany & Co., causing the American jewelry retailer to file suit in Delaware alleging the French luxury goods conglomerate is unlawfully using the COVID-19 pandemic to try to avoid completing the deal.

According to LVMH Moet Hennessy Louis Vuitton SA, after "a succession of events which undermine the acquisition," including economic disruption from the coronavirus pandemic and the potential for significant taxes on French products by the U.S., the company's board of directors met to review the situation and ultimately determined that the deal should be nixed. The LVMH board recommended that the company defer the acquisition until after Jan. 6, 2021, and pushed it to extend the "outside date" in the merger agreement from Nov. 24 to Dec. 31. That move, in effect, prevents the deal from closing, according to LVMH.

Tiffany is not taking the termination of the deal lying down, however, issuing a separate statement Wednesday decrying the decision from LVMH and announcing a planned lawsuit in Delaware Chancery Court. The lawsuit seeks an order requiring LVMH to complete the deal as required under its terms, and rebuts the idea that LVMH can avoid finalizing the deal by claiming Tiffany has undergone a material adverse effect or breached its obligations under the agreement.

Personal Injury 

A Pittsburgh-area nursing home wasn't acting directly under federal laws, regulations and directions when a housekeeper allegedly contracted COVID-19 at the facility and died, so her wrongful death lawsuit doesn't belong in federal court, her family said.

The estate of Elizabeth Wiles said Wednesday that the lawsuit against Beaver County, Pennsylvania-based Brighton Rehabilitation and Wellness Center should be remanded to the state court where it was originally filed, despite the nursing home's claims that it should be immune to lawsuits under the federal Public Readiness and Emergency Preparedness Act of 2005 and that it was acting under guidance from the Centers for Disease Control and Prevention for how to handle the pandemic.

The negligence and wrongful death lawsuit claim that Brighton Rehab, already under state scrutiny for understaffing and poor hygiene practices, was utterly unprepared for the COVID-19 pandemic. Brighton failed to change its protocols or provide protective equipment even as cases cropped up at the facility, which by June had 368 patients who tested positive for the disease, 108 positive staff members and 80 deaths linked to the outbreak, the suit says.

Two other long-term care facilities were slammed Tuesday with a proposed class action in New Jersey state court alleging they misled consumers about the quality of their services and failed to protect residents and patients from contracting the novel coronavirus, leading to more than seven dozen COVID-19 deaths on their watch.

Plaintiff Brian Roberts says his uncle, Albert C. Roberts, was among at least 94 individuals who died from the disease at the Andover Subacute Rehabilitation Center II and a sister facility after the entities "failed to take reasonable or adequate precautions to protect their residents and/or patients against the potential spread of COVID-19."

Ten days after his uncle died at Andover II, Roberts says, the Andover Police Department was asked on April 11 to deliver 25 body bags to the facilities. The next day, police officers found five "bodies being stored in a small holding room in Andover II," Roberts says.

Sports & Betting

A champion Mexican middleweight boxer has hit the British-owned sports streaming service DAZN Media and his Los Angeles promoters with a breach of contract suit in California federal court, claiming he's owed more than $280 million under a per-bout deal that purportedly collapsed amid the coronavirus pandemic.

Santos Saúl Álvarez Barragán, who is popularly known as Canelo Álvarez, and his business entity SA Holiday Inc. accused DAZN Media and his promoters, Golden Boy Promotions LLC and Oscar de la Hoya, on Tuesday of failing to deliver on a 2018 contract under which he was allegedly promised $35 million per fight for at least 10 of 11 bouts.

And a New Jersey gym that has been brawling with the state over COVID-19 restrictions said it should no longer have to pay fines for defying earlier orders in its legal battle with the Garden State, arguing that it's now operating as a gathering place for volunteers for a U.S. Senate candidate's campaign.

Atilis Gym in Bellmawr has spent months battling the state's health commissioner as well as the township, which revoked the gym's license in August after it continued to defy coronavirus-related orders. On Aug. 18, the gym was hit with a $134,000 judgment by a state court judge who slammed the business's "willful and contumacious" defiance during an unprecedented public health crisis.

Notably, Atilis said it is no longer operating as a gym. On Aug. 21 the gym became affiliated with Republican Rik Mehta's run for Senate, Atilis said.

Public Policy 

President Donald Trump's reelection campaign won't get an injunction that would set aside any ballots cast via drop boxes in Pennsylvania, since the state Supreme Court could resolve the question of their legality before voting begins, a Pittsburgh federal judge ruled late Tuesday.

U.S. District Judge J. Nicholas Ranjan denied the motion to modify his earlier stay on the campaign's federal case while the state courts weigh the same issues, reasoning it was too early to judge the campaign's concerns about mixing mailed-in ballots with drop-box ballots.

Pennsylvania is allowing counties to use drop boxes to make it easier to return absentee and mail-in ballots amid the COVID-19 pandemic and delays in the U.S. Postal Service; the Trump campaign and Pennsylvania Democrats filed competing lawsuits in federal and state court seeking a determination of whether such drop boxes are allowed under the state election code.

A First Circuit panel on Wednesday appeared reluctant to review a pair of challenges to Maine's COVID-19 response, suggesting in one appeal that the governor's decision to rescind a mandatory quarantine rule for out-of-state visitors may make that case moot.

During oral arguments in the suit over the two-week quarantine policy, U.S. Circuit Judge Bruce M. Selya pressed an attorney for two campgrounds on why the court should even hear the case given that Maine Gov. Janet T. Mills ended the requirement on June 9.

And nearly two dozen Democratic attorneys general asked the U.S. Supreme Court on Tuesday to stay out of a fight over the U.S. Food and Drug Administration's limits on abortion medication access, saying the agency's rules threaten public health during the coronavirus pandemic.

In an amicus brief filed Tuesday, New York, California and 21 other states opposed the FDA's recent request that the justices undo an injunction blocking the agency's restrictions on patients' ability to get Mifeprex, a pill that ends pregnancy at up to 10 weeks, at a retail pharmacy. The FDA's requirements would put patients' lives at risk by forcing them to potentially contract COVID-19 to obtain the so-called abortion pill and contravene the states' efforts to minimize in-person interactions through stay-at-home orders and expanded access to telehealth, the states said in the brief.

In Illinois, the Seventh Circuit has refused to block Illinois Gov. J.B. Pritzker's COVID-19 executive order, which the state's Republican Party had argued impermissibly gives leeway to religious gatherings, ruling that the speech that accompanies religious exercise has a privileged position under the First Amendment.

Pritzker's executive order permissibly accommodates religious activities, the three-judge panel held, pointing to U.S. Supreme Court precedent as well as the fact that the order is designed to give greater leeway to the exercise of religion.

Immigration

A California federal judge has ordered U.S. Immigration and Customs Enforcement to end the practice of holding migrant children in hotels while arranging their swift deportation — a practice that was implemented at the border as part of an expulsion program to curb the spread of COVID-19. 

U.S. District Judge Dolly Gee's order came after a court-appointed monitor recently concluded the hotel practice isn't "fully responsive to the safe and sanitary" needs of children. Judge Gee is overseeing the long-running class action settlement known as the Flores agreement over the well-being of detained migrant children. The agreement was reached 23 years ago on behalf of a minor migrant named Jenny Lisette Flores.

Banking

The Rosen Law Firm PA was tapped Tuesday to represent a proposed class of Wells Fargo shareholders who claim the bank hurt investors by mismanaging its Paycheck Protection Program lending.

The law firm, which specializes in representing investors in securities class actions, was appointed lead counsel by U.S. District Judge Richard Seeborg, who at the same time appointed the firm's client, individual investor George Kwinecki, to serve as lead plaintiff for the proposed class in the California federal court suit.

In the suit, which launched in June, individual Wells Fargo investor Guofeng Ma accused the bank and some of its leadership of misrepresenting its distribution of PPP loans under the Coronavirus Aid, Relief and Economic Security, or CARES, Act.

Native American

A top Bureau of Indian Affairs staffer and Trump administration officials on Tuesday sought dismissal of a South Dakota tribe's lawsuit over alleged threats to its COVID-19 checkpoints, saying subsequent events rendered the alleged harm hypothetical.

The Cheyenne River Sioux Tribe accused federal officials in June of threatening an emergency takeover of its police department as retaliation for the tribe's virus highway checkpoints, which had been met with opposition from South Dakota Gov. Kristi Noem.

But the administration said Tuesday in D.C. federal court that a July letter from BIA Assistant Secretary Tara Sweeney clarifies that neither a takeover nor checkpoint shutdown is imminent, and simply lays out steps the tribe must take to avoid a possible law enforcement takeover at some future date. This possibility of future action is not a "judiciable controversy" under Article III of the U.S. Constitution, the federal defendants said.

The Trump reelection campaign and the Republican National Committee have asked to step into an Arizona federal court suit by Navajo Nation members seeking more time to mail in their ballots for the election, claiming the members are seeking an unfair exception to state law and that the Democratic secretary of state is likely to oppose the campaign's interests.

Darlene Yazzie and five other Navajo members hit Arizona Secretary of State Katie Hobbs with an Aug. 26 complaint alleging that the state's law requiring that ballots be received by Election Day violated the U.S. and state constitutions and the Voting Rights Act of 1965 because ballots often take much longer to mail on the Navajo reservation. The Navajo members asked the court to order the state to accept ballots postmarked by Nov. 3, the date of the upcoming election, as long as they are received by Nov. 13.

Insurance

A hotel chain owner said Hartford Fire Insurance Co. should cover the multimillion-dollar losses its 30 hotels suffered during the pandemic, saying that the virus extensions of its over $933 million Hartford policies cover COVID-19 and that Hartford has said publicly that it insures pandemic loss.

Graduate Hotels Real Estate Fund III LP, which owns hotels in U.S. college towns and cities, told an Illinois state judge that Hartford wrongfully denied coverage and failed to investigate its claims. The hotel owner says the virus or pollutant exclusions of its Hartford policies do not apply, since its losses met the condition to trigger the policies' virus coverage extensions.

Graduate says it is indisputable that COVID-19 was spread to the U.S. through air travelers from China and Europe in January and February, and its policies' virus extension specifically pays for virus losses involving "air travel" and "vehicles."

And in Florida, SCOR SE urged a federal court to toss a landmark theater's proposed class action seeking coverage for pandemic loss, saying the theater failed to allege physical damage and the policy's microorganism, pollutant and biological exclusions bar coverage.

The reinsurer said Thursday that Actors Playhouse Productions Inc., which operates the Miracle Theatre in Coral Gables, Florida, failed to present any evidence of direct physical loss or damage or that its staff lost access to the theater due to COVID-19 or related government closure orders. SCOR SE claimed that COVID-19 is a microorganism, pollutant and biological agent, losses from which are excluded by its policy. 

--Additional reporting by Benjamin Horney, Matthew Santoni, Carolina Bolando, Mike LaSusa, Sarah Martinson, Bill Wichert, Hailey Konnath, Dorothy Atkins, Emilie Ruscoe, Emma Whitford, Kevin Stawicki, Rachel O'Brien, Craig Clough, Daphne Zhang and Andrew Westney. Editing by Orlando Lorenzo.

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