Top Developments in COVID-19 Litigation

August 23, 2021

Jason A. Levine, Gillian H. Clow, and Giles Judd

OVERVIEW

This week’s top COVID-19 litigation developments are: Lufthansa’s proposed $60.1 million settlement of ticket-refund litigation; the Texas Education Agency’s announcement that Governor Abbott’s ban on mask mandates in schools is not currently being enforced due to litigation; a motion to dismiss a lawsuit by students against the University of Massachusetts’ vaccine mandate, along with the settlement of a similar suit by a George Mason University professor; and a negligence lawsuit against Walgreens over its accommodations for customers vaccinated at the pharmacy.

1.  Lufthansa Reaches $60.1M Agreement Over Flights Canceled Due to COVID-19

Overview:  A proposed class of U.S. Lufthansa ticketholders whose flights were canceled due to the pandemic have agreed to a $60.1 million settlement with the German airline, which would end the refund suit currently pending in the Central District of California.

Background:  Under the agreement, class members who have already received a full refund from Lufthansa may choose to receive either $10 in cash or a $45 voucher toward any flight on Lufthansa or its sister airlines.  Those class members who have yet to receive a refund are entitled not only to a full refund, for a total amount of $56.6 million, but also 1% of the ticket price in interest.  The $10 cash payments, $45 vouchers, and 1% interest payments are capped at $3.5 million.  Named plaintiffs will each receive additional $2,000 payments, and class counsel may seek an award of fees and costs up to$875,000.  Lufthansa filed a memorandum supporting the proposed settlement, emphasizing the “inherent uncertainties of continued litigation and the inevitable expense and delay that would accompany it.”

Our Take:  While many similar airline refund suits have failed to survive the pleadings stage, several are still ongoing.  An approved settlement here could, as plaintiffs suggest, “provide a roadmap for counsel and litigants in the still-pending airline cases to follow.”

2.  Texas Education Agency Clarifies Enforcement Posture of Governor’s Ban on Mask Mandates in Schools

Overview:  Following confusion in Texas courts over provisions in Governor Abbott’s Executive Order GA-38, which prohibits mask mandates in public schools, the Texas Education Agency (“TEA”) clarified that GA-38 is not currently being enforced due to ongoing litigation.  This leaves a path for local authorities to institute mask mandates while litigation over the Governor’s authority continues.

Background:  The TEA’s public guidance letter comes just days after the Texas Supreme Court stayed a Bexar County District Judge’s ruling granting a temporary restraining order that prohibited enforcement of the Governor’s mask mandate ban in Bexar County.  Following the Supreme Court’s ruling, Judge Arteaga once again granted a temporary restraining order against the mask mandate provisions of GA-38 in Bexar County.  The TEA then issued a public guidance letter, which stated that the Governor’s ban on mask mandates is not currently being enforced in schools as a result of ongoing litigation and promised further guidance following the resolution of the legal disputes.

Our Take:  With COVID-19 cases on the rise and school systems reopening throughout the nation, local school officials are issuing guidance about COVID-19 protocols for the new year.  The TEA’s public guidance is of a piece with these guidance documents, but the legal battles in Texas regarding masks in schools seem far from over. 

3. Vaccine Mandate Litigation Erupts as Colleges Resume In-Person Classes

Overview: As universities resume in-person or hybrid (remote and in-person) instruction, some institutions of higher learning face challenges to their vaccine requirements.

The Cases:  After the University of Massachusetts announced a vaccination requirement for students, two of them filed a challenge in Massachusetts federal court earlier this month arguing that the school lacked legal authority to require the vaccine.  This week, the university urged the court not to become among the first to strike down a college’s vaccine requirement.  In its motion to dismiss, UMass argues that vaccine requirements have long been upheld as constitutional, that the students cannot state viable due process claims, that the vaccine requirement does not contravene state or federal law, and that UMass’s denial of one of the plaintiff’s request for a religious exemption did not violate her constitutional rights.

Also this week, George Mason University granted a medical exemption to one of its professors after he filed suit against the university in the Eastern District of Virginia, alleging that the vaccine mandate violated his constitutional rights, including the right to bodily autonomy.  The university has allowed the professor to remain unvaccinated in view of the natural immunity he claimed his prior COVID infection conferred on him.  The exemption will allow the professor to hold office hours and attend in-person events, but with a requirement that he socially distance, maintain a distance of at least six feet from others, and be tested for COVID-19 once per week on campus at no cost to him.

Our Take:  The outset of the COVID-19 pandemic saw numerous civil liberties and religious freedom lawsuits over the right to hold events in person.  Now, almost 18 months later, civil liberties and religious freedom arguments are emerging in a new way, primarily in response to vaccine and mask mandates.  As before, we expect litigation over these issues to build, and we will continue to monitor decisions for businesses as they grapple with decisions regarding remaining open or reopening this fall.

4. Walgreens Sued By Plaintiff Who Allegedly Fainted After Receiving the COVID-19 Vaccine

Overview: A new personal injury lawsuit filed in New Mexico state court last week alleges negligence against Walgreens when an individual allegedly fell unconscious on the floor after receiving the COVID-19 vaccine.

The Complaint:  Plaintiff received the vaccine at a Walgreens pharmacy.  She alleges that although she felt dizzy soon thereafter, the pharmacy provided no chairs for recipients of the vaccine to wait in for observation for 15 minutes after receiving the shot.  She further alleges that she fainted after going to her car to try to find a place to sit and that she sustained a compound fracture upon hitting the pavement.  Plaintiff claims that Walgreens was negligent in its alleged failure to provide customers with a place to sit for observation after receiving the COVID-19 vaccine.

Our Take:  As the COVID-19 landscape expands, so too does the litigation landscape.  While the beginning of the pandemic saw many negligent exposure cases against businesses and employers, those same companies now face litigation arising out of providing the vaccine.  We would expect this litigation to continue.

Jason Levine is a commercial and antitrust litigation partner in the Washington, D.C. office of Alston & Bird LLP.  Gillian Clow and Giles Judd are litigation associates at the firm.