By Celeste Bott

Law360 (June 18, 2020, 8:07 PM EDT) -- Princess Cruise Lines wants out of a negligence suit brought by passengers, consumers seeking refunds of ski trips and flights canceled due to the coronavirus pandemic want to consolidate a growing number of similar cases, and a D.C. federal judge says the U.S. Department of the Treasury can't hold back $679 million in COVID-19 relief funds from tribal governments.

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

A former assistant manager at Sherwin-Williams is suing the paint manufacturer in Ohio federal court, alleging the company underpaid workers for overtime by failing to calculate regular bonuses and extra coronavirus pandemic pay into overtime rates.

Washington state resident Christopher Johnson filed his proposed collective action against The Sherwin-Williams Co. on Monday, saying he was an assistant manager for almost 20 years until May and was underpaid for his many overtime hours because his quarterly bonuses weren't factored into this overtime rate. He said the company violated the Fair Labor Standards Act by excluding the regular bonuses from his overtime rate and by excluding bonuses paid to workers since March for working during the pandemic.

In New Jersey, the state's former assistant health commissioner filed a whistleblower lawsuit Tuesday alleging he was fired after alerting ethics authorities that he'd been asked to administer scarce COVID-19 tests to relatives of Gov. Phil Murphy's chief of staff as a favor.

Ex-Assistant Department of Health Commissioner Christopher Neuwirth claimed his May 28 termination came a few weeks after an ethics officer suggested he consult with a criminal defense attorney before moving forward with an ethics complaint. After that meeting, Neuwirth was left out of critical communications involving the state's coronavirus response during the height of the pandemic, according to the Mercer County Superior Court complaint.

The state then claimed that Neuwirth lost his job because of outside consulting work he'd performed, even though he'd disclosed the work and gotten approval for it, the complaint says.

And Lyft told a D.C. federal court on Tuesday that a proposed class action seeking paid sick leave for drivers with the ride-hailing service belongs in arbitration because the drivers agreed to an arbitration clause in their terms.

The company asked U.S. District Judge Ketanji Brown Jackson to order arbitration in the suit, which alleges that by withholding paid sick leave from drivers during the coronavirus pandemic, the company is forcing them to either risk their health and the health of their passengers or risk their livelihoods.

In its motion, Lyft said its agreement clearly requires arbitration to settle disputes and doesn't allow its drivers to submit claims through class actions, such as the one filed in May by former Lyft driver Cassandra Osvatics alleging D.C.'s 2008 Accrued Safe and Sick Leave Act requires Lyft to provide paid sick leave to its drivers, an important measure amid the COVID-19 pandemic.

Personal injury

A Philadelphia-area meatpacking plant says the family of a worker who died after allegedly catching COVID-19 on the job should be precluded from filing its wrongful death suit by Pennsylvania's workers' compensation law and argued that oversight by the U.S. Occupational Safety and Health Administration and federal emergency orders govern pandemic responses.

Attorneys for the JBS SA facility in Souderton, Pennsylvania, said Tuesday that the estate of Enock Benjamin couldn't sue the company for negligence when workplace injuries are covered by workers' compensation, while OSHA should have exclusive jurisdiction over claims related to workplace safety and health standards.

The lawsuit, brought May 7, claimed that JBS ignored OSHA recommendations instructing businesses to have sick workers stay at home and to issue personal protective equipment to keep workers safe while on the job. The plant — which was exempted from state orders closing nonessential businesses — added shifts that increased the risk of coronavirus exposure and did not provide masks or other protection until April, after several workers tested positive for COVID-19 and the plant had to shut down to be disinfected, the suit said.

Princess Cruise Lines Ltd. has asked a California federal court to toss a negligence suit by passengers, including a woman whose husband allegedly got COVID-19 while aboard ship and later died, saying U.S. Supreme Court rulings in maritime cases limit punitive damages even if the claims go forward.

The cruise company, a Carnival Corp. subsidiary, moved Monday to dismiss the suit initially brought by passengers Debra and Michael Dalton and later joined by Susan Dorety, whose husband died of the virus. Princess argued that the passengers have lodged "an unprecedented theory of liability" for emotional distress that the Supreme Court had previously warned against in a 1997 case.

In 1997 ruling, the Supreme Court held in Metro-North Commuter R. Co. v. Buckley that a plaintiff can't recover for emotional distress stemming from potential exposure to a disease "unless, and until, he manifests symptoms of a disease," Princess argued.

Consumer Protection

Consumers urged the Judicial Panel on Multidistrict Litigation to consolidate in Illinois more than 30 putative class actions alleging that foreign and domestic airlines have refused to refund passengers for flights canceled due to the coronavirus pandemic.

There are 38 lawsuits making those claims pending in 16 different district courts, but "the salient factual core is the same in each case," those consumers told the panel on Tuesday.

Consolidation makes sense given the "overwhelming similarity" and the overlapping classes, and having one judge preside over all cases centered around pandemic-related airfare refunds would conserve judicial resources, said the movants, who are 12 plaintiffs in the various lawsuits at issue.

A proposed class of skiers has made a similar request, asking the panel to consolidate in Arkansas seven lawsuits alleging insurance companies wrongfully denied claims for canceled ski trips because of COVID-19, saying that grouping the suits together will prevent inconsistent rulings and duplicated efforts.

The lead plaintiff in one of those suits in Arkansas federal court, James Bradley, said there are common facts and allegations among the seven suits that make them ideal for consolidation into multidistrict litigation.

In each case, the plaintiffs allege that they bought optional insurance for their ski passes at Vail Resorts or Alterra Mountain Co., intended to cover the costs of those passes if the trips had to be canceled. Each made a claim after government-mandated shutdowns over the COVID-19 pandemic closed the resorts, but were denied, according to the motion.

Public Policy

A California federal judge ruled Wednesday that the U.S. Department of Education's guidance blocking coronavirus aid for foreign students is likely unconstitutional, temporarily barring the government from imposing those eligibility requirements at California community colleges.

U.S. District Judge Yvonne Gonzalez Rogers found that the Education Department had exceeded its authority when it imposed eligibility restrictions on the $12.56 billion in relief funds for students provided by Congress in the coronavirus aid bill, likely violating the U.S. Constitution's separation of powers doctrine and the spending clause.

Education Secretary Betsy DeVos had issued guidance preventing students who are not eligible for federal financial aid grants, including beneficiaries of the Deferred Action for Childhood Arrivals program, veterans and students with disabilities, from accessing the funds.

Also in California, a Palm Springs hotel asked a federal judge Tuesday for an emergency order to reopen its doors, arguing that Gov. Gavin Newsom's ability to shut down businesses during a health emergency like the current coronavirus pandemic infringed the hotel's constitutional rights.

At a telephone hearing, PCG-SP Venture I LLC, which does business as the V Palm Springs Hotel, asked U.S. District Judge Jesus G. Bernal to issue a temporary restraining order, arguing that Newsom and other government officials made an overly broad shutdown order that arbitrarily designated some businesses as "essential" and others as "nonessential."

Celebrity defense attorney Mark J. Geragos of Geragos & Geragos APC, representing the V Palm Springs Hotel, noted that thousands of people around California and the Los Angeles area have been gathering to protest police brutality and argued that if those are allowed by the governor, then hotels should be allowed to operate.

Also Tuesday, the Seventh Circuit backed an Illinois executive order limiting the size of religious gatherings to help slow the spread of COVID-19, ruling that churches are closer to concert halls and movie theaters, which are shuttered under the order, than to warehouses and grocery stores, which are less limited than religious institutions.

In a unanimous decision written by U.S. Circuit Judge Frank H. Easterbrook, the panel backed a lower court's decision not to tinker with Illinois Gov. J.B. Pritzker's executive order, which has now been softened along with other pandemic restrictions. 

Securities 

The top brass at biopharmaceutical company Inovio Pharmaceuticals Inc. was hit Monday with a shareholders' derivative action in Pennsylvania federal court accusing the firm's leadership of preying on investors by claiming it had only needed "three hours" to come up with a coronavirus cure.

Plaintiffs Krishna Kishor Devarakonda and Brian Foster alleged that the company's top executive and its board of directors deliberately misled the public to push up the company's stock price by implying that the company had needed "just three hours" to come up with a coronavirus vaccine.

And a Salt Lake City company that received the world's first regulatory clearance to sell COVID-19 diagnostic tests in Europe was hit with a securities suit on Monday for claiming its tests were "100% accurate."

A complaint in Utah federal court alleges that Co-Diagnostics Inc. and its top executives pumped up the company's stock price by making "continual, knowing and willful misstatements about their main product, a COVID-19 diagnostic test," only to have the price tumble when its claim to be manufacturing "100% accurate" tests was undermined last month.

Native American 

A D.C. federal judge on Monday ordered the U.S. Department of the Treasury to pay out virtually all that's left of $8 billion in COVID-19 relief funds to tribal governments, saying the department's intention to hold back $679 million as a hedge against losing a suit over the funds "simply cannot be justified."

U.S. District Judge Amit P. Mehta said in an opinion Monday that the Agua Caliente Band of Cahuilla Indians and other tribes had waited "long enough" to receive their share of the funding, having seen money that was supposed to be distributed within 30 days under the Coronavirus Aid, Relief and Economic Security, or CARES, Act still not delivered after some 80 days.

And on Thursday, the Shawnee Tribe sued the federal government in Oklahoma federal court, claiming that it's owed substantially more funding from the CARES Act due to a government error that showed that the tribe's population was zero when it actually has more than 3,000 members.

Food & Beverage

A COVID-19 outbreak at a McDonald's in Oakland, California, spawned a public nuisance lawsuit Tuesday alleging the franchise's owners forced highly contagious workers who had contracted the virus to keep working and gave workers face masks made from dog diapers.

The suit also claims the restaurant's owners and managers failed to inform workers they had been exposed to the virus and have them self-quarantine, and failed to implement proper social distancing or cleaning protocols. The complaint was filed in Alameda County Superior Court by Yamilett Hernandez, three other employees of the franchise owned by VES McDonald's and Hernandez's 10-month-old, who also contracted the novel coronavirus.

Four of the five plaintiffs have tested positive for COVID-19 and they allege that at least 11 workers have tested positive and caused at least six family members to also contract the virus. The suit claims the outbreak "is directly attributable to defendants' coldhearted economic decision in May to ignore substantial, inescapable evidence of rising infection levels among workers."

In a separate case against the fast-food giant, managers for Chicago McDonald's restaurants being sued over allegedly insufficient workplace COVID-19 protections testified Tuesday that they give their employees adequate virus protection gear, and that training them how to use it is a "constant" conversation.

That closed out the final day of testimony in proceedings over a bid from a proposed class of Chicago McDonald's workers for more adequate information and protection as they continue to serve customers amid the ongoing coronavirus pandemic.

Advertising

A Massachusetts woman has accused Google and parent company Alphabet Inc. of advertising a Pine-Sol cleaning product with false claims about its germ-killing abilities during the COVID-19 pandemic, according to a proposed class action filed Tuesday in Boston federal court.

Judith Golditch said she bought a two-pack of 100-ounce bottles of Pine-Sol Multi Surface Cleaner on March 4, as fears mounted over the global spread of the novel coronavirus that causes COVID-19.

Golditch said she purchased the product in the shopping section of Google's search engine, where she was swayed by claims that the product would kill "99.9% of germs at home and work." But Golditch alleges there are "no reliable studies" to back up that assertion.

Metals & Mining

A coalition of mining and steel unions urged the D.C. Circuit on Tuesday to make the Mine Safety and Health Administration issue a rule requiring employers to protect miners from COVID-19, saying the agency's refusal to issue an emergency safety standard is an "abuse of agency discretion."

The agency disregarded its obligation under the Federal Mine Safety and Health Act to implement mandatory safety measures to protect miners "exposed to a grave danger" to only issue nonbinding safety recommendations instead, the United Mine Workers of America International Union said in the petition for a writ of mandamus.

"The situation confronting miners is urgent," and most miners' designation as essential workers only heightens the need for an emergency temporary standard as stay-at-home orders are lifted across the country, the union said.

--Additional reporting by Lauraann Wood, Matthew Santoni, Joyce Hanson, Rachel O'Brien, Mike Curley, Suzanne Monyak, Dean Seal, Emilie Ruscoe, Andrew Westney, Emma Whitford, Y. Peter Kang, Lauren Berg, Mike LaSusa, Dave Simpson, Jeannie O'Sullivan, Kevin Stawicki and Rosie Manins. Editing by Orlando Lorenzo.

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