By Celeste Bott

Law360 (February 25, 2021, 7:45 PM EST) -- Uber Inc.'s Postmates is the latest food delivery giant to be taken to court by a coronavirus-ravaged restaurant, Walmart has beat bias claims over its exclusive pandemic shopping hours and the Italian fashion brand Valentino is being sued for $207 million by its former landlord.

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.

Employment

Walmart Inc. violated federal and state labor law by failing to pay workers for time spent on mandatory pre-shift COVID-19 screenings, employees claimed in a putative class and collective action in California federal court.

In a complaint filed Tuesday, current and former Walmart employees claimed that the retail giant's policy of checking temperatures and asking questions before they clocked in each shift resulted in a failure to pay overtime and for all hours worked, in violation of the Fair Labor Standards Act and California labor law.

Walmart employee Amado Haro and former employee Rochelle Ortega filed the suit. After the onset of the pandemic, Walmart began requiring all hourly, nonexempt employees to go through an onsite check for symptoms before each shift, their complaint said.

A worker who raised concerns about a personal protective equipment shortage and a colleague's COVID-19 diagnosis was not protected by federal labor law, a National Labor Relations Board prosecutor said in a letter declining to press her retaliatory firing case.

The Office of the General Counsel on Wednesday denied the unnamed worker's challenge to a regional official's decision not to bring a suit against LCS Community Employment LLC, saying the worker's complaints were not concerted activity protected by the National Labor Relations Act because they were purely her own.

The NLRA gives workers a right to raise safety complaints or take other workplace actions "for mutual aid or protection" and makes it illegal for employers to fire workers who exercise this right. The worker first filed a charge with the NLRB's Chicago office in October, alleging she was fired for taking concerted action.

A California federal judge has thrown out a woman's bid to hold her husband's employer responsible for her COVID-19 infection, finding that her claims that her husband contracted the disease at work and then passed it on to her are barred by the state's workers' compensation law.

In an order filed Monday, U.S. District Judge Maxine M. Chesney dismissed with leave to amend the suit by Corby and Robert Kuciemba, giving a win to Victory Woodworks Inc. in finding that because Corby Kuciemba's injury is dependent entirely on her husband's work-related infection, the state's workers' compensation law provides the only possible remedy. The judge also dismissed her public nuisance claim under San Francisco public health law, saying she does not have standing to pursue those claims.

Intellectual Property

A California burger joint is suing Uber Inc.'s Postmates for trademark infringement over accusations that the delivery giant inaccurately listed the restaurant as "closed" in an effort to coerce the eatery to partner with the platform, the latest case filed against food apps by pandemic-ravaged eateries.

In a lawsuit filed Wednesday in Los Angeles federal court, Lucky Boy Burgers said it has chosen to avoid Postmates because of the company's 30% fee, but that its name nonetheless shows up in search results on the platform.

According to the lawsuit, Postmates has sometimes listed Lucky Boy as "closed" rather than simply delisting the business or stating that it is not available through the platform. 

Public Policy

A New Jersey federal judge stopped short Wednesday of appointing an independent monitor and ordering measures to address the spread of COVID-19 at Cumberland County Jail after inmates and jail officials offered sharply different takes on the conditions there, saying he needed more information to assess whether a crisis is unfolding at the facility.

During a Zoom hearing on the inmates' bid for such injunctive relief in a proposed class action, U.S. District Judge Noel L. Hillman said he needs "more facts" and a better understanding of the coronavirus-related policies in place at the jail to determine whether they are adequate and if officials have not followed them.

The judge directed the parties to engage in expedited discovery and said he also would be willing to hear testimony from the inmates behind the suit and others. After a jail attorney indicated the facility is arranging to have inmates and staffers vaccinated if they're willing, the judge said the vaccinations might moot many of the issues.

The city of Seattle urged a Washington federal judge to toss a lawsuit over its pandemic hazard pay ordinance, arguing that the grocery industry groups' suit seeks a "return to the 19th century" with its focus on private agreements over public health and welfare.

Seattle has asked U.S. District Judge John Coughenour to toss the Northwest Grocery Association and Washington Food Industry Association's suit. The city argued it rightfully exercised its authority to safeguard public health and implement worker protections when the mayor signed into law an ordinance mandating pandemic hazard pay for grocery workers earlier this month.

The nonprofit trade groups, representing grocers, sued Seattle in early February, claiming the city's ordinance requiring a $4 per hour pay increase for store workers is invalid, according to the original complaint, which seeks to toss out the law. It's part of a spate of suits over a handful of "hero pay" laws passed around the country.

And a group of Palm Beach County residents have turned to the Florida Supreme Court with their efforts to block a county face mask mandate, seeking review of a lower court's rejection of arguments that the mandate intrudes on their constitutional right to refuse medical treatment.

In a two-page Feb. 17 notice, a group of petitioners asked the state high court to review the January decision by an intermediate appellate court to shoot down a bid by several residents to block the mandate.

In a 7-0 vote, Palm Beach County commissioners enacted the emergency order in late June as COVID-19 cases in the county were surging, and since then, the commissioners have extended it seven times through at least Feb. 19. Its initial enactment drew national attention when members of the public lambasted the board during the meeting when it was approved, raising conspiracy theories and in one case accusing the commissioners of "practicing the devil's law."

Native American

Alaska Native corporations are equivalent to tribes under the Indian Self-Determination and Education Assistance Act and are due a cut of March 2020 pandemic relief funds set aside for tribes, a group of ANCs has told the U.S. Supreme Court.

The Alaska Native Village Corporation Association and several other ANCs and groups filed their brief Monday after the Supreme Court in January granted petitions from them and former Treasury Secretary Steven Mnuchin in the monthslong dispute.  

The ANCs, which serve Alaska Native communities, contend that the D.C. Circuit wrongly ruled in favor of the Confederated Tribes of the Chehalis Reservation and other tribes in September in finding ANCs are not "Indian tribes" under the Coronavirus Aid, Relief and Economic Security, or CARES, Act, which set aside $8 billion in COVID-19 relief for tribal governments.

Immigration

A Ninth Circuit panel is ordering mediation for U.S. Immigration and Customs Enforcement and a class of migrants who claimed they experienced perilous conditions in two California facilities during COVID-19, finding the situations there had evolved past the point where a ruling would be useful.

Addressing the government's appeals of orders issued early in the pandemic, the panel went as far as affirming that the courts were entitled to rule on both the issues raised by the migrants and the appeals Thursday, leaving the sides to work out the rest.

ICE challenged a temporary restraining order and preliminary injunction regarding conditions in Yuba County Jail and Mesa Verde ICE Processing Facility as well as bail orders releasing members of the class from those facilities, saying the district court lacked the authority to make those decisions. But the Ninth Circuit shot down that assertion.

And four nonprofit racial and immigrant justice groups have sued the U.S. Departments of Homeland Security and Health and Human Services in D.C. federal court, accusing them of withholding information about the government's use of a surveillance and data analysis platform made by Palantir to track the COVID-19 pandemic.

The Electronic Frontier Foundation on Thursday filed a Freedom of Information Act suit against the DHS and the HHS on behalf of immigration attorney organization Just Futures Law, the California-based MediaJustice policy group, the Arizona-based immigration and social justice-focused Mijente Support Committee, and the Immigrant Defense Project sponsored by the Fund for the City of New York.

The four groups filed FOIA requests in 2020 for information about COVID-related surveillance and data analysis last year because they're worried about HHS Protect, "a vast secretive data platform designed by controversial data software company Palantir," according to the Electronic Frontier Foundation. The EFF says that Palantir Technologies Inc. has a long history of building surveillance systems for DHS that assist it in pursuing criminal prosecutions, separating families, and conducting raids that lead to detention and deportation. The federal government in July required all hospitals to report COVID-19 infection data to HHS Protect instead of the information system operated by the U.S. Centers for Disease Control and Prevention, the EFF says.

Food & Beverage

Tyson Foods is asking the Eighth Circuit to ensure that a pair of lawsuits alleging shoddy safety measures at its meat plants led to several worker deaths from COVID-19 stay in federal court, arguing it's entitled to the venue because it acted under federal authority in maintaining its operations.

In its Feb. 18 brief, Tyson argued that a district court got it wrong when it sent the cases back to Iowa state court, because the food manufacturer was acting under federal supervision and control when it continued to operate its plants without coronavirus-specific precautions in the early days of the pandemic.

The Arkansas-based food giant said it's entitled to a federal forum under the Federal Officer Removal Statute, a doctrine allowing certain cases to be removed from state to federal court if a federal officer or agency, or an entity working under a federal officer, is involved.

Real Estate

New York state's most recent pandemic-related eviction ban is unconstitutional because it tramples landlords' rights to due process and free speech while handing too much power to the judiciary, five landlords said in a federal court suit filed Wednesday.

The landlords asked the court to bar the state from enforcing Part A of the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020, signed into law in December, arguing that this most recent form of the eviction stoppage pushes landlords to "the brink of financial and emotional disaster."

The eviction prevention act is stronger than a thicket of eviction defenses implemented by Gov. Andrew Cuomo and state and federal lawmakers that were available to certain New York tenants after a blanket hold on evictions lifted in early October. Under the law, most eviction cases are on hold for 60 days, through Feb. 26. Tenants who fill out a so-called hardship declaration form in the interim, attesting that they are struggling financially or that moving would pose a serious health risk, can expect to have their cases stayed for a longer period, until May 1.

But on Wednesday, the landlords argued that by requiring property owners to distribute these forms to the tenants, the law violates their First Amendment rights by forcing their speech.

Also in New York, Italian fashion brand Valentino and its American branch were sued in state court for over $207 million by the landlord of its former store on Fifth Avenue in Manhattan, claiming the company illegally broke its lease while trying to "capitalize upon and pervert" the COVID-19 pandemic.

According to the landlord, 693 Fifth Owner LLC, Valentino's abandonment of the property does not relieve it of its duty to pay rent through the expiration of its lease, especially after the dismissal of Valentino's own lawsuit arguing the lease has been rendered void by the pandemic.

Between rent owed since September, future rent still owed through 2029 and damage done to the property totaling over $15 million, Valentino is on the hook for up to $207 million, 693 Fifth Owner alleged in the suit. The landlord said Valentino tried to argue in court that the pandemic caused the problems at its flagship U.S. store when in reality competition from online retailers has been eating away at the store's profits for years.

And a proposed class of tenants has sued a Chicago luxury apartment building and its management company to collect a partial refund on rent payments they say were too high since the pandemic has limited their access to their building's common areas.

Plaintiff Michelle Weisberg's proposed class action alleges that STRS Ohio Real Estate Investments LLC, which owns The Streeter luxury apartment building in Chicago, and Village Green Management Company LLC violated the city's Residential Landlord Tenant Ordinance by collecting full rent payments from their tenants despite closing common areas in March in light of the COVID-19 pandemic.

The RLTO defines dwelling units as a structure or part of a structure that's used as a home, residence or sleeping place by people who maintain a household "together with the common areas, land and appurtenant buildings thereto," according to Weisberg's suit.

Retail & E-Commerce

A D.C. federal judge has handed Walmart a win in a proposed class action claiming it discriminated against immunocompromised individuals by relying on security guards to determine who is eligible to shop during exclusive pandemic shopping hours set aside for disabled people.

In a 15-page opinion, U.S. District Judge Amit P. Mehta wrote that because the lead shopper plaintiff "alleges that the security guard disbelieved that she was disabled and treated her as if she did not have a disability," she cannot claim that she was discriminated against on the basis of her disability in violation of D.C.'s Human Rights Act.

The ruling marks an end to a lawsuit that Cheketa McKnight-Nero filed in June, saying the retail giant's practice of having security guards decide who qualifies as disabled or immunocompromised violates the federal Americans with Disabilities Act, the DCHRA and common law prohibiting negligent hiring and training of personnel.

Health Care

Adventist Health System can pursue claims over a soured $57.5 million deal to buy personal protective equipment during the COVID-19 pandemic, after a federal court ruled the hospital owner has sufficiently alleged a $2 million fraud conspiracy by an asset management company and its legal counsel.

In a 24-page order released Monday, U.S. District Judge Paul G. Byron denied motions to dismiss from Los Angeles-based Tomax Capital Management Inc., its principal Yehoram Tom Efrati, California attorney Michael H. Weiss and Weiss' firm.

In addition to allowing Florida-based AdventHealth's claims for breach of contract, conversion, breach of fiduciary duty, civil theft and civil conspiracy to move forward, the Orlando-based judge also ruled that the court has authority to exercise personal jurisdiction over Weiss and Efrati under the state's long-arm statute.

Insurance

An Illinois federal judge on Monday allowed a slew of restaurants, bars and theaters to pursue claims that Society Insurance Co. wrongfully refused to pay their COVID-19 business interruption losses, ruling in three bellwether cases in multidistrict litigation over the insurer's widespread denial of pandemic-related coverage.

U.S. District Judge Edmond E. Chang refused to dismiss the claims for lost business income coverage asserted by several dozen Society policyholders in the three suits, while throwing out the policyholders' bids for coverage under a number of other policy provisions.

Judge Chang had selected dismissal or summary judgment motions filed by Society in the three cases to serve as bellwethers to address critical policy interpretation issues common to most of the 40-plus cases that have been folded into the MDL, which was formed by the Judicial Panel on Multidistrict Litigation in October.

Also in Illinois, another federal judge said that McDonald's Corp. and two Illinois franchisees have alleged enough to keep pursuing a ruling their insurer must cover defense costs in underlying litigation over the franchisees' allegedly subpar COVID-19 safety protocols.

U.S. District Judge Charles Kocoras said while the suit from McDonald's and its franchisees raises a novel question over costs incurred to comply with a mandatory injunction due to the coronavirus, their allegations raise the plausibility that those costs are covered under their policies with Austin Mutual Insurance Co. and that's enough at this stage of the litigation.

Cigna Health and Life Insurance Co. has called on a New Jersey federal court to end a radiology lab's suit alleging it improperly refused to pay nearly $400,000 for COVID-19 services, saying the business failed to provide the "core information" needed to back up its ERISA claim.

In urging the court to toss an amended complaint, the insurer on Wednesday said Open MRI and Imaging of RP Vestibular Diagnostics PA has not identified the patients behind the denied payments and whether the lab has been assigned their rights under their benefit plans.

American Select Insurance Co. has urged a Pennsylvania federal judge to toss a suit from a hotel seeking coverage for its COVID-19-related losses, arguing the hotel suffered economic losses not covered under its commercial property policy.

The carrier said Monday that the policy's virus exclusion bars coverage and that the owners of the Comfort Suites Hummelstown, which is outside Harrisburg, Pennsylvania, failed to show that their business losses are related to any property damage as required by the policy. Property damage requires a tangible injury and "Hummelstown does not allege that the virus or resulting government orders 'demonstrably altered the components of its building,' nor could it," American Select said in the dismissal motion.

Trade show operator Emerald Holding Inc. says its insurers need to cough up $100 million for its events that have been canceled or postponed because of the coronavirus pandemic as part of the company's Lloyd's of London policies, according to a lawsuit filed in California federal court on Monday.

As insurers and subscribers of Emerald's Lloyd's of London event cancellation policies, W.R. Berkley Syndicate Ltd. and Great Lakes Insurance SE have paid more than $100 million for Emerald's canceled events, but the insurers have yet to pay another $100 million that they still owe, according to Emerald's complaint.

In Ohio, a federal judge has handed Zurich American Insurance Co. a win in a bar and grill's COVID-19 insurance coverage suit, ruling that the Buckeye State eatery hadn't experienced a direct physical loss that would trigger coverage under its Zurich policy.

Brunswick Panini's, which operates as Panini's Bar & Grill, had alleged that Zurich wrongly denied coverage for its business income losses stemming from shutdowns associated with the pandemic. Panini's alleged breach of contract and breach of implied covenant of good faith and fair dealing in the proposed class action filed in August.

In a September motion to dismiss, Zurich argued that the restaurant hasn't plausibly alleged "direct physical loss of or damage to property" that would trigger coverage under its policy. And U.S. District Judge Christopher A. Boyko Sr. on Friday agreed, throwing out the restaurant's amended complaint with prejudice. The restaurant's claim for loss of full use of their premises and for business interruption is precluded under Zurich's policy, Judge Boyko said in an order.

And a slew of dentist and orthodontic offices battling insurers over COVID-19 coverage have told a Washington federal judge they wanted the state's Supreme Court to chime in on common state law questions underlying their disputes, arguing that kicking the questions to the court would save time and resources.

Dentist Mark Germack has been sparring with The Dentists Insurance Co. since last year, alleging the insurer wrongfully denied business interruption claims stemming from the pandemic. Meanwhile, TDIC has maintained that COVID-19 didn't trigger the "physical damage or loss" clauses in business interruption insurance, and Germack hasn't alleged the virus is even present in his office. In an omnibus motion, Germack teamed up with a long list of dentists, orthodontists and dental specialists in the midst of similar spats with insurers in seven cases in the Western District of Washington. 

--Additional reporting by Braden Campbell, Bill Wichert, Bill Donahue, Dave Simpson, Max Kutner, Emma Whitford, Nathan Hale, Melissa Angell, Daphne Zhang, Mike Curley, Jeff Sistrunk, Lauren Berg, Jennifer Doherty, Lauraann Wood, Hailey Konnath, Joyce Hanson, Craig Clough, Daniela Porat, Dorothy Atkins and Shawn Rice. Editing by Alanna Weissman.

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