By Celeste Bott

Law360 (August 27, 2020, 6:35 PM EDT) -- Ticket buyers seeking refunds from American Airlines for flights canceled due to the pandemic are fighting the airline's push to compel arbitration, a federal judge has halted the Trump campaign's election lawsuit in Pennsylvania, and immunocompromised shoppers suing Walmart for discrimination are seeking class certification. 

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

Amazon.com Inc. workers claiming the company's Staten Island, New York, warehouse conditions pose a COVID-19 risk blasted their employer's recent suggestion that they take their concerns to the Occupational Safety and Health Administration, saying the agency is sitting "on the sidelines."

Derrick Palmer and six others claim Amazon's safety regime at its JFK8 warehouse during the pandemic has led to the death of at least one worker and allowed infected workers to spread the virus among family members. In a Tuesday filing, the workers took umbrage at Amazon's assertion that their suit is essentially an attempt to make an end run around OSHA, which the company argues has the authority to regulate workplace safety and health conditions.

The workers told U.S. District Judge Brian Cogan that OSHA "has affirmatively decided to ride out the pandemic on the sidelines" and does not need to be involved because the claims are grounded in state law rather than federal workplace safety laws and regulations.

Elsewhere, a former worker at a Pittsburgh-area nursing home claimed he was fired for voicing concerns about his facility's handling of the pandemic to an outside consultant, according to a lawsuit he filed in Pennsylvania state court Monday.

Ron Berlingo said the Monroeville Rehabilitation and Wellness Center fired him in late July for reaching out to a state-assigned infection control specialist about discrepancies he saw in the numbers the home was reporting for infected staff and patients, in violation of the Pennsylvania Whistleblower Law.

Insurance

The operator of five Broadway theaters has sued a pair of Chubb Ltd. subsidiaries in New York federal court, accusing them of wrongfully denying or underpaying its claims for losses because of the government-mandated closures of the venues amid the pandemic.

Jujamcyn Theaters LLC on Monday claimed it has suffered "substantial losses" since executive orders issued in March by New York City Mayor Bill de Blasio and Gov. Andrew Cuomo forced it to completely and indefinitely shutter its five theaters. Up until the closures, Jujamcyn said its theaters, which exhibited popular musicals including "Hadestown," "The Book of Mormon" and "Frozen," could expect up to 48,000 patrons per week.

In Alabama, a shoe company urged a federal judge to reject Auto-Owners Insurance Co.'s bid to toss its suit seeking COVID-19 loss coverage, arguing that no Alabama court has held that physical damage on a property requires physical alteration.

Wagner Shoes LLC said Tuesday that its policy is silent on the definition of direct physical loss or damage, and Alabama courts have routinely held that undefined or ambiguous terms in an insurance policy must be read in favor of the policyholder. The filing argued that Auto-Owners cannot deny coverage by asserting that Wagner Shoes incurred no physical damage.

A group of 23 U.S. strip clubs is suing multiple Lloyd's of London syndicates for refusing to cover their claimed business losses stemming from government-issued COVID-19 closure orders, alleging the insurer is seeking to rewrite the policy's mold exclusion by saying it includes the concept of a virus.

The clubs and an "adult superstore" claim in Monday's complaint that their policy with Lloyd's does not exclude loss caused by government orders and that none of the policy exclusions apply. They say they hold an "all risk" policy with the insurer that provides a coverage limit of $10 million per occurrence.

Gartner Inc. has asked a Texas federal judge to allow it to appeal his refusal to transfer U.S. Specialty Insurance Co.'s suit seeking not to pay more coverage over its $150 million policy limit for canceled events, saying that the Fifth Circuit should review jurisdiction because the suit does not involve any contacts between Gartner and Texas.

And in a suit removed to Arizona federal court Wednesday, a Nashville bar run by country singer Dierks Bentley challenged Mt. Hawley Insurance Co.'s refusal to cover its losses related to the pandemic, alleging the losses are covered under an $8 million insurance policy.

Public Policy

Massachusetts voters sending mail-in ballots for the Sept. 1 primary election will not get extra time for their votes to reach local officials, despite the U.S. Postal Service warning that delivery delays could render some ballots uncounted, the state's top appellate court said Wednesday.

The ruling denied a request by Becky Grossman, a Newton city councilor who is running for Congress, and others for a 10-day extension for mail-in ballots to be counted in the primary election, which they said would avoid a scenario in which people who requested ballots within the new law's deadline were not able to return them in time due to postal slowdowns.

Also in Massachusetts, landlords lost their bid to block a temporary ban on most evictions in the state Wednesday, as a state court judge ruled that the law enacted during the COVID-19 pandemic is necessary to protect public health and within the legislature's power in a time of crisis.

A Pennsylvania federal judge has halted President Donald Trump's challenge to the state's use of drop boxes for collecting mail-in votes, ruling that state courts should have the first chance to interpret the newly implemented election law.

U.S. District Judge J. Nicholas Ranjan on Sunday put a temporary hold on the lawsuit, brought by the president's reelection campaign and the Republican National Committee, so that Pennsylvania's Commonwealth Court or Supreme Court could consider whether the way some counties collected and tabulated mail-in ballots in the state's recent primary was allowed under state election laws that were amended in October.

In Ohio, the city of Columbus has asked a state court to dismiss a constitutional challenge to a law allowing cities to tax income earned by employees who work remotely from a different location during the COVID-19 pandemic. The due process clauses of the U.S. and Ohio constitutions don't curtail the state's ability to make tax policy decisions that affect only its residents and corporations, city Auditor Megan Kilgore argued in a Tuesday motion.

In Florida, Gov. Ron DeSantis wasted no time challenging a state judge's order Monday shredding the administration's move to open all schools by Aug. 31 after finding the restart plans "reduced the constitutional guarantee of a safe education to an empty promise."

Judge Charles Dodson's order blocks DeSantis and state Education Commissioner Richard Corcoran from going ahead with an executive order mandating that Florida's brick-and-mortar schools open five days a week despite the ongoing pandemic.

And a California federal judge issued a preliminary injunction Wednesday in favor of a coalition of states challenging a new rule from the U.S. Department of Education and Secretary Betsy DeVos that they say would unfairly inhibit public schools' abilities to access federal COVID-19 relief funding. 

Intellectual Property

Two of three Lysol brand-affiliated companies named in a cleaning wipe packaging infringement suit in Delaware asked a federal judge on Wednesday to unpack them from the case, arguing that the complaint never established specific jurisdiction or culpable acts.

Reckitt Benckiser PLC and Reckitt Benckiser Group said in a dismissal motion that Perimeter Brand Packaging LLC inaccurately lumps the two companies in with Reckitt Benckiser LLC in a complaint that "vaguely and ambiguously" asserts that all three directly, indirectly and willfully infringed two patents.

Perimeter licensed its patent to Clorox Co. until 2015. Its suit said the features at issue keep disinfecting wipes moist when canisters are open and accused the three Reckitt Benckiser companies of pilfering the design for Lysol Disinfecting Wipes.

In Pennsylvania, the foundation behind the "Terrible Towel" rally towel beloved by Pittsburgh Steelers fans claims an apparel company is selling COVID-19 masks that flagrantly infringe its trademarks.

The Eamon Foundation, which owns at least eight Terrible Towel trademarks, hit Time In Apparel with the infringement, unfair competition and unjust enrichment claims last week in Pennsylvania federal court. According to the Aug. 21 complaint, the Steelers have an exclusive license to manufacture and market products featuring the trademarks. But this summer, Time In started selling what it called "The Terrible Mask" and related COVID-19 protective products, such as gaiters, the Eamon Foundation said.

The governing body behind Arizona State University has sued Facebook and an Instagram account that it claims illegally used the school's trademarks to try to throw a party during the COVID-19 pandemic and claim the virus is a "hoax."

The Arizona Board of Regents, on behalf of ASU, filed a complaint in federal court against the unknown entity behind the "asu_covid.parties" Instagram account and against Facebook, which owns Instagram. The board said the point of the suit is to bring an end to the account, which the board said is wrongfully using ASU's trademarks and school colors.

Banking

Wells Fargo Bank NA was hit with a suit Wednesday claiming that as the nation scrambled to react to the COVID-19 pandemic, the bank automatically put struggling borrowers' mortgages in forbearance without the customers' explicit instructions to do so. The move hurt those whose credit reports reflected the forbearance as they sought other financial services amid the economic downturn, the suit claims.

The proposed class action stems from the federal coronavirus relief bill, which included a provision stating that mortgage borrowers experiencing economic hardship in connection with the pandemic could ask for a temporary forbearance. Wells Fargo mortgage borrower Pamela Delpapa claims in the suit that after the law passed, Wells Fargo decided to put its mortgage borrowers in forbearance if they contacted the bank and said they were experiencing distress, whether or not they actually said they wanted to put their mortgage in forbearance.

According to Delpapa, this policy ended up "hurting the very people Congress intended to help" with the relief bill. She held herself up as an example, noting that she lost her job because of the pandemic and wasn't able to refinance her home to get a better rate because of the forbearance.

Capital One Bank told a New Jersey federal court that a cardholder received the refund she requested, as the bank sought to end her proposed class action over its alleged misrepresentations that customers could receive only travel vouchers for flights canceled due to the pandemic.

The bank urged the court to toss Ellen Fensterer's consumer fraud complaint on the grounds that her claims are moot since British Airways has provided the refund she sought in the action. Capital One said it processed that refund and credited her account for the cash and reward points she used to purchase plane tickets for a trip to Athens, Greece.

Mergers & Acquisitions

A private investor, citing the pandemic, tried to walk back a promise to pay $35 million to support a proposed international financial services merger, the would-be recipient of those funds alleged in a lawsuit filed Wednesday in New York state court.

According to plaintiffs SL Globetrotter LP, the shareholders' representative in the proposed merger, and Global Blue Group Holding AG, the entity that the merger would transform into a public company, defendant Integrated Core Strategies (US) LLC agreed in January to buy 3.5 million shares of the company for $10 each.

But the merger transaction is scheduled to be finalized on Friday, Globetrotter and Global Blue say in the suit — and they say ICS is trying to get out of its obligation.

Transportation

A Pittsburgh-area school district claims in a lawsuit that its transportation contractor was refusing to work in the upcoming school year unless the district paid for the time students attended classes from home due to the pandemic.

The South Allegheny School District filed a lawsuit Tuesday against Sun Coach Lines LLC in Pennsylvania state court, saying the transportation contractor was pushing to get paid for months it didn't actually have students to transport to school and was refusing to renegotiate or arbitrate the district's costs for the shortened year.

American Airlines Inc. passengers are arguing the Fort Worth, Texas-based airline can't enforce an unrelated third-party travel agency's arbitration clause to dodge a proposed class action in Texas federal court seeking refunds for flights canceled due to the pandemic.

The passengers said in court filings that they entered into contracts with Hotwire and Expedia Group when they bought flight tickets through the travel agencies. American, the nation's largest air carrier by fleet size, can't compel arbitration under those contracts because it's not a party to them, they said. Instead, the passengers said the airline should be bound by its own contract and conditions of carriage that state if American cancels a flight or changes a flight time by more than four hours, passengers can receive a full refund. 

And in California, a federal judge tossed three lawsuits alleging Princess Cruise Lines Ltd. knowingly exposed passengers to the coronavirus and that its negligence caused passengers to contract the virus and some to die. The judge will, however, allow the passengers to amend their suits.

Plaintiffs David and Donna Rumrill allege they contracted COVID-19 on the Ruby Princess as a result of the cruise line's "lackadaisical approach" to their safety, but U.S. District Judge Dale S. Fischer tossed those claims after finding the complaint didn't provide enough evidence to show they actually contracted the illness on the ship.

Securities

Investors in Vaxart Inc. accuse the San Francisco-based biotechnology company of lying about its COVID-19 vaccine candidate in order to inflate its stock price, in a complaint filed Monday in California federal court.

Vaxart shareholder Kirk Himmelberg sued on behalf of himself and anyone else who bought the company's stock between June 25, when Vaxart announced plans for production of the vaccine, and July 25, when media reports revealed the company had publicly said it was receiving support from the federal initiative known as Operation Warp Speed even though it was not.

Himmelberg said the company "exaggerated the prospects of its COVID-19 vaccine candidate, including its purported role or involvement in OWS."

And an SCWorx Corp. shareholder has hit the health care data company's top brass with a derivative suit in New York federal court, alleging they misled investors about a contract to sell millions of COVID-19 antibody testing kits that turned out to be "completely bogus."

Investor Josstyn Richter claims that four of SCWorx's officers and directors, including founder and CEO Marc S. Schessel, exposed the company to civil litigation, government investigations and financial losses in the millions by touting the testing kit deal.

They failed to disclose to investors that the buyer, Rethink My Healthcare Inc., was too small a company to afford or handle the number of testing kits Schessel said it had agreed to purchase — 2 million kits per week for $35 million each week for 23 weeks — and that the Australian supplier, ProMedical Equipment Pty Ltd., had a history of fraudulent activity, Richter alleges.

Retail & E-Commerce 

Immunocompromised shoppers have asked a D.C. federal judge for class certification in their suit accusing Walmart of discrimination for its practice of relying on security guards to determine who is eligible to shop during the chain's exclusive hours set aside for disabled people during the pandemic.

Cheketa McKnight-Nero, who filed the proposed class action in June, is seeking to represent a class of potentially thousands of immunocompromised Walmart shoppers who allege the retail giant has a discriminatory practice of using security guards to decide who does or does not qualify as disabled or immunocompromised, according to the motion.

During the pandemic, Walmart has designated exclusive shopping times, usually early in the morning, for elderly, disabled and immunocompromised people to do their shopping while the store is less busy in order to prevent them from coming into contact with more people than necessary, the motion says.

--Additional reporting by Daphne Zhang, Sarah Martinson, Jeff Montgomery, Emilie Ruscoe, Jeff Sistrunk, Y. Peter Kang, Hailey Konnath, Brian Dowling, Chris Villani, Matthew Santoni, Paul Williams, Mike LaSusa, Katie Buehler, Reenat Sinay, Bill Wichert, Lauren Berg and Adam Lidgett. Editing by Jay Jackson Jr.

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