COVID-19 Litigation Round Up

September 15, 2020

Jason A. Levine, Peter E. Masaitis, Gillian H. Clow, Debolina Das, and Kaelyne Wietelman

Alston & Bird LLP

OVERVIEW

In the short holiday week, new filing action was predominantly in the government suit realm, with many more actions challenging pandemic regulations and many other government suits seeking to enforce them.  A new ruling from the Seventh Circuit upheld an Illinois executive order, concluding that the order does not violate the First Amendment by providing preferential treatment to the free exercise of religion.  The Sixth Circuit also let stand a Michigan law requiring that agricultural employers and housing operators test migrant workers for COVID-19 before beginning work, notwithstanding the disproportionate impact on Latinos.

While the stream of new insurance coverage claims continues, one insurer succeeded on its motion to dismiss, with the court finding that a virus exclusion was enforceable and the plaintiff failed to allege a compensable loss.  Now common price-gouging, negligence, insurance, and workplace claims round out this week’s COVID-19-related filings.

GOVERNMENT SUITS

Mask and COVID-19 Ordinances

Last week, the Seventh Circuit rejected the Illinois Republican Party’s challenge to an executive order issued by the governor to curb the spread of COVID-19.  Plaintiffs argued that the order, which includes an exemption for the free exercise of religion, is an unconstitutional content-based restriction on speech because “[a] group of 100 people may gather in a church, a mosque, or a synagogue to worship, but the same sized group may not gather to discuss the upcoming presidential election.”  The Seventh Circuit upheld the executive order as a permissible accommodation of the free exercise of religion, which receives special protection under the First Amendment. 

Other challenges to COVID-19 related ordinances continue to dominate the new filing landscape.  In New York, Governor Cuomo and the Commissioner of Health for the State of New York were sued by a group of plaintiffs who seek to end the COVID-19 measures impacting schools, businesses, and places of worship.  Suits challenging COVID-19 related ordinances were also filed in Arkansas, Pennsylvania, and Utah this week.

In a new category of lawsuits against the government, nursing facility residents and their family members in New Mexico and Texas challenge state orders restricting visitors to the facilities.  Plaintiffs allege that the orders deprive them of their familial relationships. 

Lawsuits brought by government for failure to comply

As in prior weeks, local governments are suing to enforce compliance with COVID-19 ordinances.  In Riverside, California, the county sued two gyms that continued to operate indoors in violation of the local ordinances.  And in Jefferson County, Colorado, the public health department sued a speedway that held a “Stop the COVID Chaos” rally exceeding 175 attendees, in violation of county public health orders.

ADA Compliance

The State of Louisiana and its department of health have been sued for alleged violations of the ADA, brought by plaintiffs who allege they were exposed to COVID-19 at an unclean mental health facility where residents are dying at alarming rates.

COVID Testing/Discrimination

The Sixth Circuit this week preserved a Michigan law requiring that agricultural employers and housing operators test migrant workers for COVID-19 before beginning work.  Agricultural business owners and employees challenged the law, arguing that it violates the Equal Protection Clause by discriminating against Latinos.  After the district court denied plaintiffs’ request for a preliminary injunction, the Sixth Circuit declined to grant an injunction pending appeal.  The Sixth Circuit reasoned that plaintiffs failed to establish that the order had a discriminatory purpose and are unlikely to succeed under rational-basis review. 

PRICE-GOUGING

In Texas, a San Antonio lawyer and his firm are accused of withholding $3 million from a pharmaceutical and medical equipment supply company for more than 5 million masks it provided pursuant to a deal with the Texas Department of Energy Management.   The attorney was allegedly selling the company’s masks for double the amount paid.


INSURANCE

As new business interruption cases continue to be filed, State Farm prevailed in a case this past week.  A district court judge in Michigan granted State Farm’s motion to dismiss a chiropractor’s complaint for business interruption coverage with prejudice.  The court found that plaintiff failed to allege physical loss, and that the virus exclusion in the policy barred coverage.

NEGLIGENCE/FAILURE TO PROTECT

In one of the many suits against cruise lines that we have previously reported on, Princess Cruise Lines argued that a federal court in California should deny plaintiff’s motion for class certification because there was not sufficient commonality of injuries across the proposed class.

As stores enforce health protocols and social distancing guidelines, some have hired security guards.  In Pennsylvania, a Walmart customer claims that an unmasked security guard violently assaulted him after he declined to follow the guard’s instructions to use a designated entrance.  

Two long-term care facilities in New Jersey are among the many nursing homes facing allegations that they misled consumers about the quality of their services and failed to protect residents and patients from COVID-19. Plaintiffs assert that these facilities are responsible for almost 100 deaths caused by not following the CDC’s infection control safety practices.

EMPLOYMENT

As in prior weeks, lawsuits for wrongful termination and wrongful denial of benefits continue.

Jason Levine is a commercial and antitrust litigation partner in the Washington, D.C. office of Alston & Bird LLP. Peter Masaitis is a product liability and toxic tort litigation partner in the firm’s Los Angeles office.  Gillian Clow, Debolina Das, and Kaelyne Wietelman are litigation associates at the firm.