By Celeste Bott

Law360 (September 17, 2020, 8:24 PM EDT) -- Some of the nation's biggest banks want out of a lawsuit claiming they owe filing fees under the federal Paycheck Protection Program, a federal judge has struck down emergency restrictions put in place by Pennsylvania's governor, and LA Fitness and Ticketmaster are among the latest to escape some claims that they owe refunds over coronavirus-related cancellations. 

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.

Here's a breakdown of some of the COVID-19-related cases from the past week.

Consumer Protection

A Florida federal judge ruled Thursday that an LA Fitness member did not have standing to file a proposed class suit against the gym chain over its refund policy after its mid-March coronavirus shutdown because the member's dues had been fully refunded before he filed his claims.

U.S. District Judge William P. Dimitrouleas dismissed what remained of the putative class action against LA Fitness over its failure to refund membership dues for the second half of March, when the gyms were closed nationwide due to the COVID-19 pandemic.

And a New York couple who say they caught COVID-19 on board a Celebrity Cruises Inc. ship in March slammed the company's attempt to toss their proposed class action, arguing Tuesday that they had provided enough facts to bolster their claims that Celebrity knowingly put passengers' lives at risk with buffets, dances and other packed events.

Fred and Marlene Kantrow say they contracted COVID-19 in March aboard the Celebrity Eclipse after the cruise line concealed the truth about the health of guests on board and continued to hold events, including an elbow-to-elbow salute to health care workers battling the disease. The evidence they provided with their suit, which included photographs of the activities, should be enough to support their tort claims against Celebrity at this stage, the Kantrows said.

Employment

Northwestern Memorial Hospital can't shake a lawsuit by a nurse who claims she was fired for warning colleagues that masks provided by the Northwestern University-affiliated hospital were inadequate to protect against COVID-19, an Illinois state judge has ruled.

Circuit Court Judge Patricia O'Brien Sheahan on Tuesday denied Northwestern's bid to toss Lauri Mazurkiewicz's claims that she was terminated in retaliation for informing colleagues that N95 face masks, which filter out 95% of airborne particles, are safer and more effective than the masks that were being distributed by the hospital.

A Broward County, Florida, senior living condo community and a former maintenance man there who said he was unlawfully denied sick leave after getting COVID-19 have struck a deal to end the former employee's suit, they told a Florida federal court.

On Monday, plaintiff Randy Constance and Hollybrook Golf and Tennis Condominium asked U.S. Magistrate Judge Lurana S. Snow to dismiss Constance's suit, saying they had reached a deal in mediation. No further details of the settlement were available.

Constance's lawsuit claimed Hollybrook violated the Families First Coronavirus Response Act, which President Donald Trump signed in March. One of its main provisions is the Emergency Paid Sick Leave Act, which provides employees with up to two weeks of emergency paid sick leave if they contract the virus and blocks employers from discriminating against sick workers.

Media & Entertainment

Movie theater owners and their trade associations have ended their federal suit against New Jersey Gov. Phil Murphy and the state health commissioner over the monthslong mandatory shutdown of cinemas in the Garden State amid the coronavirus outbreak after Murphy allowed theaters to reopen on a limited basis.

With the consent of the AMC theater chain, its fellow plaintiffs and the state officials, U.S. District Judge Brian R. Martinotti on Thursday entered an order administratively terminating the action "without prejudice to any party's right to make a letter request to restore this matter to the active docket at the appropriate time."

The order comes a day after state Assistant Attorney General Daniel M. Vannella notified the judge in a letter that the parties were on board for the administrative termination. Vannella noted that the agreement came after Murphy on Sept. 1 issued an executive order allowing movie theaters and similar venues to open their indoor spaces to the public Sept. 4.

Public Policy

A Pennsylvania federal judge on Monday struck down emergency business closures and crowd size restrictions imposed by Gov. Tom Wolf that were started in the spring in a bid to help curb the spread of COVID-19.

U.S. District Judge William Stickman IV sided with a group of businesses, as well as a handful of GOP lawmakers, who filed suit in May alleging that Wolf's restrictions violated freedom of assembly and due process protections under the First Amendment and Fourteenth Amendment.

And the Trump campaign urged a New Jersey federal court Wednesday to grant a preliminary injunction blocking expanded vote-by-mail provisions recently enacted by the Garden State government, saying the move "has opened the door to voter fraud and widespread confusion."

The motion offered a blitzkrieg of criticism of mail-in voting, including an argument that the state Legislature's recently passed bill expanding the process, A4475, violates federal election statues because it allows officials to begin counting ballots before the Nov. 3 Election Day. The bill also allows voters to cast ballots after Election Day because officials are required to accept unpostmarked ballots for up to two days after the polls close, the Trump campaign said.

In Texas, a Dallas state judge on Wednesday freed the state and its governor from a salon owner's claims that her constitutional rights were violated when she was jailed for reopening her business in violation of coronavirus restrictions, but said the city can't dodge the suit yet.

Dallas County District Judge Eric Moyé said at the end of an hourlong Zoom hearing arising from Shelley Luther's arrest that he would dismiss the salon owner's counterclaims against the state and Gov. Greg Abbott under governmental immunity. He said he would dismiss some but not all of the counterclaims against the city and would issue a written order to that effect.

Asset Management

A Blue Cross Blue Shield employee benefits committee sued Allianz in New York federal court Wednesday, claiming the investment firm falsely touted a low-risk strategy when in reality it made bad bets that were a "ticking time bomb" and cost investors $2 billion during coronavirus-related market volatility.

The committee accuses Allianz Global Investors US LLC and its fiduciary investment adviser, Aon Investments USA Inc., of violating the Employee Retirement Income Security Act by falsely assuring the committee repeatedly that Allianz had "structural risk protections" in place — called its Structural Alpha strategy — to minimize the losses of the benefit committee's portfolio.

Allianz promised that hedges would be in place "at all times" to limit any risks associated with options trading and eliminate the risk of a margin call, according to the suit. But when the stock market plunged in February and March as the novel coronavirus spread around the world, Allianz abandoned its strategy, the suit claims.

Banking

JPMorgan Chase Bank, Wells Fargo Bank, Bank of America, U.S. Bank National Association, Live Oak Banking Co. and Harvest Small Business Finance filed a motion to dismiss a suit by agents claiming they're owed filing fees under the federal Paycheck Protection Program, saying the COVID-19 pandemic program doesn't require them to pay fees.

The Coronavirus Aid, Relief and Economic Security Act — or CARES Act — which provides $659 billion in loans to small businesses for their payroll and to cover other expenses during the COVID-19 pandemic, doesn't back up the agents' claims, the banks told a California federal judge Tuesday, in their bid to toss the proposed class action.

"The CARES Act nowhere mandates that a lender pay fees to an agent for assisting a borrower in applying for a [Paycheck Protection Program] loan," the motion said.

American Video Duplicating Inc., Tush Law Ltd. and Kenneth M. Hahn, which provide consulting, legal and tax preparation services, filed the proposed class action April 27, saying that as agents of borrowers, they're entitled to a percentage of the fees set aside for lenders of the Paycheck Protection Program.

Legal Industry

Three prospective bar exam-takers with disabilities sued the State Bar of California this week, alleging the agency is discriminating against them by refusing to allow accommodations like screen-readers and bathroom breaks for remote test-takers, pushing them to risk traveling during the coronavirus pandemic to take the October exam in person.

In the lawsuit filed Monday, plaintiffs Kara Gordon, Isabel Callejo-Brighton and a John Doe seek an injunction forcing the state bar to allow them to take the October exam remotely and permit reasonable accommodations.

They allege that the State Bar of California and the National Conference of Bar Examiners have violated the Americans with Disabilities Act, and that the NCBE also ran afoul of a state anti-discrimination law.

Sports & Betting

Ticketmaster, Live Nation and StubHub have escaped several claims brought by Major League Baseball fans claiming they're owed refunds for tickets purchased to games canceled amid the COVID-19 pandemic, a California federal judge ruled Monday.

In three orders, U.S. District Judge Dale S. Fischer said fans who purchased their tickets directly from MLB or MLB teams can't bring their claims against Ticketmaster LLC, its parent company Live Nation Entertainment Inc., StubHub Inc. and its subsidiary Last Minute Transactions Inc. Judge Fischer shipped the rest of the claims off to arbitration, ruling that fans who used the companies' websites entered into arbitration agreements.

Baseball fans hit MLB, its teams and the ticketing companies with the proposed class action in April. The fans are claiming the league continued to say games were "postponed" despite the growing likelihood that many or all of the games wouldn't be played for weeks, a move they argued was a "pretext" to avoid paying refunds.

And three units of Nationwide are asking an Arizona federal court to throw out a suit by 19 Minor League Baseball teams alleging they were wrongfully denied coverage for business losses due to COVID-19, saying a virus exclusion in their policies bars coverage.

In a motion filed Friday, National Casualty Co., Scottsdale Indemnity Co. and Scottsdale Insurance Co. said it was "black letter law" that the court should apply the policies as written, and that an exclusion specifically states that they will not cover losses resulting from bacteria or viruses.

Food & Beverage

Two Black Arkansas residents have filed a racial discrimination lawsuit against Landry's Inc. that alleges a white mob viciously attacked them at the company's Saltgrass Steak House in Little Rock after the restaurant's managers failed to remove a group violating COVID-19 social distancing protocols.

Shayla Hooks and Tyrone Jackson sued Landry's on Thursday for alleged negligence, racial discrimination and defamation following an altercation at the steakhouse on the evening of June 27.

The couple says that they wore face masks and abided by the state's social distancing requirements inside the restaurant, but that the steakhouse was overcrowded and in violation of Arkansas' COVID-19 maximum capacity requirements.

Insurance

Factory Mutual Insurance Co. urged a New York federal court to rule that its policy's contamination and "loss of use" exclusions bar coverage for lapsed rent payments Thor Equities LLC says were caused by COVID-19 closing down its malls and hotels in Manhattan, San Francisco and other major cities.

FM said Monday that the contamination and "loss of use" exclusions in its policy are "broadly phrased" and clearly preclude coverage, and Thor is asking the court to rewrite the exclusions to try to get "more than twenty times" the policy's $1 million sub-limit for communicable disease. The insurer argued that COVID-19 constitutes contamination under the policy, and "since the onset of the COVID-19 pandemic, a number of courts have held contamination exclusions preclude recovery of losses related to the pandemic and government shut down orders."

In California, a federal judge on Monday found that Travelers Casualty Insurance Co. of America doesn't need to cover a San Francisco retailer's business losses resulting from COVID-19 shutdowns, saying the retailer hasn't alleged it has suffered physical damage to or loss of its property.

U.S. District Judge Jon S. Tigar dismissed without prejudice a proposed class action by children's clothing boutique Mudpie Inc., concluding that because the retailer hasn't alleged that COVID-19 is present or directly caused its loss, there is no physical force that led it to lose business. Instead, Mudpie's complaint rests entirely on the allegations that government stay-at-home orders caused it to lose business, which Judge Tigar said isn't enough. 

And Aspen American Insurance Co. has told a Texas federal court that it should follow the "daily-growing" number of courts rejecting businesses' claims seeking COVID-19 closure coverage, since its policyholder, a Minnesota dental office, failed to show physical damage from its claimed revenue loss.

Aspen said "numerous courts" have held that insureds need to show tangible alteration to their property to claim physical damage, and "loss of use" during the pandemic is not a type of physical damage or loss covered by insurers.

Native American

A D.C. federal judge has sided with the U.S. Treasury Department, dismissing the Shawnee Tribe of Oklahoma's case alleging that the federal agency arbitrarily denied it a fair portion of virus relief funds set aside for tribes in the CARES Act.

Treasury Secretary Steven Mnuchin's allocation of $8 billion under Title V of the CARES Act is not reviewable under the Administrative Procedure Act, U.S. District Judge Amit P. Mehta ruled, echoing his reasoning in an Aug. 19 order denying the tribe's bid for preliminary injunction.

APA claims don't hold up in cases such as this, where an action has been "committed to agency discretion by law," Judge Mehta ruled.

--Additional reporting by Carolina Bolando, Bill Wichert, Matt Fair, Dorothy Atkins, Craig Clough, Kevin Stawicki, Rachel O'Brien, Katie Buehler, Brandon Lowrey, Hailey Konnath, Daphne Zhang, Michael Angell, Mike Curley, Hannah Albarazi, Andrew Westney and Emma Whitford.

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