Coronavirus Litigation: The Week In Review

By Celeste Bott
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Law360 (June 11, 2020, 5:23 PM EDT) -- McDonald's employees continued testimony in court about what they say are inadequate safety measures, Ruby Tuesday's faces a $2.5 million lawsuit after shuttering one of its eateries, and protesters rallying against police brutality say the use of chemical agents violates their constitutional rights and increases the risk of COVID-19 infections.

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.


A Chicago bus driver and union official says the city's transit authority is preventing drivers from discussing concerns about transporting law enforcement to potentially violent protests during a global pandemic.

Erek Slater said the Chicago Transit Authority has infringed his First Amendment rights by prohibiting him from discussing the "safety, political and moral concerns" he and other drivers share about their work amid the spread of the coronavirus and the demonstrations in Chicago over the killing of George Floyd by police in Minneapolis, according to a lawsuit filed in Illinois federal court Monday.

According to the lawsuit, a CTA supervisor intervened in three off-duty discussions Slater attempted to have with other operators about their concerns over transporting law enforcement and arrested demonstrators, on the grounds that they constituted a "wildcat strike" not allowed under CTA's work rules. He was later removed from active service and issued citations for behavioral violations, including insubordination, according to the complaint. 

And two Illinois McDonald's employees accusing the company of providing unlawfully subpar workplace COVID-19 protections testified Wednesday that they either haven't seen safety signage around their workplace, haven't fully read it or think it doesn't help them stay safe.

McDonald's employee Sujey Figueroa testified that she had seen signs since returning to work in late May. She said she only read part of one sign that encouraged employees to maintain a 6-foot distance between one another. She said she didn't read the entire sign, which also encouraged workers to wash their hands and wear gloves.

Another employee, Truvon Turner, testified that he hasn't seen a sign describing face mask and disposable glove procedures at his workplace. He testified that while he's seen signs at his location encouraging people to keep a distance from others, "there's no lines on the floor indicating where to stand."

Their testimony comes as an Illinois state court judge is weighing whether McDonald's and certain franchisees should be ordered, by way of preliminary injunction, to provide more adequate information and better coronavirus protection gear at work.

Consumer Protection

The mother of a University of Central Florida student hit a Georgia-based off-campus apartment operator with a proposed class suit Monday, claiming the company has continued to charge rent to residents even though Florida university campuses are closed due to the COVID-19 pandemic.

Jennifer Ciccone, whose daughter Madison Ciccone is a student at UCF and lives in off-campus housing at The Retreat at Orlando, says universities have refunded housing money for university-run dormitories, but the complex's owner, Preferred Apartment Communities Inc., has failed to refund housing money for students who went home when campuses closed in mid-March.

Commercial Contracts

A construction company hired by SeaWorld to build a new roller coaster at its San Diego location is accusing the theme park of withholding almost $3.3 million in payments while the park is closed during the novel coronavirus pandemic, according to a lawsuit filed in California federal court Monday.

Level 10 Construction LP has sued Sea World LLC for allegedly refusing to pay about $3.3 million for its work on an upcoming roller coaster ride and said the theme park isn't allowed to put off paying the contractor while it's closed for business, according to the suit.


A company accused of selling unapproved COVID-19 testing kits has urged a Florida federal court to toss a trademark lawsuit against it, saying it has no contacts in the Sunshine State and that it had been misled into selling the kits.

In a motion filed Tuesday, Wellness Matrix Group sought to dismiss a lawsuit brought by CoronaCide LLC, which claimed in April that the "nefarious" company falsely marketed CoronaCide's coronavirus testing kits to consumers that were not approved for at-home use and were never sold to WM Group.

WM Group said because it is based in California, jurisdiction in Florida is not proper, as it has no contacts or activities in the state. It added that CoronaCide failed to mention that it only registered as an LLC in Florida a day before lodging the complaint.

Mergers & Acquisitions

Simon Property Group has terminated its $3.6 billion acquisition of fellow mall operator Taubman, saying Wednesday that the coronavirus pandemic constitutes a material adverse effect and that Taubman failed to take necessary actions to fortify the business in the wake of the COVID-19 outbreak.

In addition to issuing a news release announcing the termination of the transaction, Simon Property Group Inc. sued Taubman Centers Inc. and The Taubman Realty Group Ltd. Partnership in the Sixth Judicial Circuit of Oakland County, Michigan. The suit requests a declaration from the court that Taubman has suffered a material adverse effect and has breached covenants in the merger agreement relating to the operation of its business.

According to Simon, the coronavirus pandemic has had a "uniquely material and disproportionate effect on Taubman compared with other participants in the retail real estate industry." Simon says the merger agreement explicitly states that the company could terminate the deal in the event that a pandemic disproportionately harmed Taubman.

Native American

A group of Native American tribes in California has sued the state for more time to get its sports betting initiative on the ballot, saying the statewide shutdown due to the COVID-19 pandemic has stymied efforts to collect voter signatures for the November election.

The Coalition to Authorize Regulated Sports Wagering along with four tribal chairmen filed suit Tuesday for about 25 tribes against California Secretary of State Alex Padilla, asking the Sacramento County Superior Court to order an extension of at least 90 days so the group can qualify its initiative for the 2022 ballot, according to news reports.

The coalition had originally hoped to make the Nov. 3 ballot but said it ran out of time to gather enough signatures, even though the state said the group could still qualify by June 25 to get on the 2020 ballot, the Los Angeles Times reported Wednesday. 

And the Prairie Band Potawatomi Nation said in a complaint in D.C. federal court Monday that the U.S. Department of the Treasury drew on a "flawed" population metric to apportion $8 billion in coronavirus relief funds to tribes.

The federal government used an Indian Housing Block Grant metric, which relies on the number of people who select "American Indian or Alaska Native" on their census form in a given geographic area, the Kansas tribe said. However, that misses members who live off-reservation or choose different racial classifications, and catches some nontribe members, the Prairie Band said.

The choice of metric was arbitrary and capricious under the Administrative Procedure Act, the Prairie Band said, after April consultation sessions in which the tribe suggested its preferred methodology. Treasury should have instead based funding on actual tribal enrollment data, the tribe said.

Real Estate

Victoria's Secret is suing the landlord of its store in midtown Manhattan, saying the building's owners attempted to collect over $1 million per month in rent after the COVID-19 shutdown despite the terms of the lease being unenforceable due to the government-mandated closing of the store.

According to the lawsuit brought by the lingerie giant and its parent company L Brands Inc. on Monday, the landlord at its Herald Square location in Manhattan should excuse the lease because it is no longer enforceable under the frustration of purpose doctrine. The landlord, Herald Square Landlord LLC, is a subsidiary of New York's largest office landlord, SL Green Realty Corp., Victoria's Secret said.

Victoria's Secret argued that the lease requires it to operate a retail business and clearly outlines that if it were unable to do so that would "frustrate" the lease's purpose. If Victoria's Secret remained closed for at least six consecutive days, then the retailer "shall be entitled to an abatement of minimum rent and additional rent," Victoria's Secret said. 

And in Ohio, a property management firm has filed suit against Ruby Tuesday in federal court, saying the restaurant chain owes it $2.5 million in contractual damages from a failed sale-leaseback deal after shuttering one of its eateries due to the COVID-19 pandemic.

The firm, Affinity9Realty LLC, alleged in its breach-of-contract suit filed Monday against Ruby Tuesday Inc. that it signed a $1.6 million sale agreement in April 2019 with the Georgia-based chain for a restaurant at 8753 Owenfield Drive in Powell, Ohio. Under the terms of the sale-leaseback deal, Ruby Tuesday agreed to sell the property to Affinity9Realty and then rent it back based on a 20-year lease expiring in May 2039, the suit said.

But a year after the lease went into effect, Ohio-headquartered Affinity9Realty mailed Ruby Tuesday a notice of default, informing it in an April 8 letter that the chain had defaulted on its lease, which set an annual base rent of $100,000, according to the suit.

Public Policy

Republican state legislative leaders asked a Pennsylvania court on Wednesday to order Democratic Gov. Tom Wolf to end the COVID-19 disaster emergency declaration that's been in place since March, which the lawmakers say has kept businesses needlessly shuttered as new case numbers have dropped.

Senate President Joe Scarnati, R-Jefferson, and Majority Leader Jake Corman, R-Centre, said in a Commonwealth Court complaint that Wolf was illegally refusing to comply with a resolution passed by the General Assembly this week ordering an end to the emergency declaration.

Wolf first issued a disaster emergency declaration in early March as COVID-19 cases first started to appear in Pennsylvania, and later issued an executive order that all non-life-sustaining businesses close their doors in order to ensure social distancing and to curb the spread of the virus.

As the state's Emergency Management Services Code only allows disaster declarations to continue for up to 90 days, the governor issued a new proclamation last week renewing the declaration. But lawmakers are looking to upend Wolf's disaster declaration in reliance on a separate provision in the Emergency Management Services Code allowing the legislature to order the termination of a state of emergency through adoption of a joint resolution by both chambers of the General Assembly.

And in Idaho, a ballot measure campaign seeking an income tax increase announced Monday it asked a federal court to allow electronic signature gathering and more time to submit petitions, alleging the governor's stay-at-home order amid the pandemic violated its constitutional rights.

The Reclaim Idaho campaign said in a statement that it is seeking a preliminary injunction against the state's April 30 signature deadline and against a requirement that petition signatures must be gathered in person. It's arguing that Republican Gov. Brad Little's March 25 stay-at-home order, issued to curb the spread of the novel coronavirus, ran afoul of the First Amendment by making it impossible to finish gathering signatures for the measure. 

The city of Portland, Oregon, has also been hit with a proposed class action over the use of tear gas by police to disperse protesters rallying against police brutality, with protesters saying the use of chemical agents violates their constitutional rights and increases the risk of COVID-19 infections.

The suit was filed in Oregon federal court June 5 by two protesters, Nicholas Roberts and Michelle Belden, along with social justice advocacy group Don't Shoot Portland, and seeks to obtain a temporary restraining order and permanent injunction preventing police from using tear gas as a crowd-control tactic.

The protesters say that even though they are exercising their free speech rights to hold nonviolent demonstrations and marches to protest the killing of George Floyd, the Portland Police Bureau "has responded with indiscriminate, unchecked, and unconstitutional violence against protesters," which is a prohibited use of excessive force under the Fourth Amendment, according to the complaint.

And the use of tear gas is especially dangerous because it acts as a respiratory irritant that causes people to expel mucus and saliva, which could increase the risk of spreading the novel coronavirus, according to the suit.

--Additional reporting by McCord Pagan, Carolina Bolado, Lauraann Wood, Tiffany Hu, Benjamin Horney, Joyce Hanson, Craig Clough, Matt Fair, Paul Williams, Y. Peter Kang and Emma Whitford. Editing by Jack Karp.

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