By Celeste Bott

Law360 (July 1, 2021, 8:08 PM EDT) -- Walmart wants to trim a suit by workers seeking to be paid for time spent on mandatory preshift COVID-19 screenings, a federal judge has issued an injunction on a provision in federal law barring states from using pandemic aid to offset tax cuts and Google is trying to dodge claims that its free COVID-19 contact tracing tool exposed users' sensitive personal information.

While courts across the country have altered procedures, restricted access and postponed certain cases to stem the spread of the coronavirus, the outbreak has also prompted litigation across the country.

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

Employment

Walmart says that because its employees also benefited from mandatory preshift COVID-19 screenings, the retail giant wasn't unjustly enriched in the process, urging an Arizona federal court to throw out that claim in a pair of workers' proposed class action.

According to the motion to dismiss, the current and former retail associates haven't alleged that Walmart obtained a benefit at their expense and that there was no justification for Walmart to retain that benefit without compensating them. 

Plaintiffs Tristan Smith and Kathy Arrison lodged their $5 million suit in March, claiming that the Arkansas-based retail behemoth required them to arrive at their shifts 10 to 15 minutes early to undergo mandatory COVID-19 screening but didn't compensate them for all that time.

And a proposed class of workers can't move forward with claims that a dialysis services company breached its contract by not paying a premium during the COVID-19 pandemic, because amended claims failed to show such a contract existed, the company argued in Washington federal court.

DaVita Inc. subsidiary Total Renal Care Inc. moved for judgment on the grounds that Joseph Hesketh III's second amended complaint still failed to state a breach of contract claim, because a company policy offering premium pay during emergencies contained disclaimers saying it wasn't binding.

In New Jersey, a former client relations coordinator has slammed The Matus Law Group with a disability discrimination suit in state court, alleging the firm tried to avoid paying her for the time she spent quarantining after testing positive for COVID-19 and ultimately fired her in retaliation for contracting the virus.

Matus Law Group, which specializes in estate planning and real estate law, searched for Cynthia Wisenfelder's replacement while she was in quarantine and then terminated her a few days after she returned to work, according to the state Law Against Discrimination complaint. The firm "discriminated and retaliated against plaintiff, culminating in her termination, all because plaintiff contracted COVID-19," the complaint says. 

Public Policy

A Service Employees International Union unit whose members got a pay boost from a local California hazard pay law asked to defend the measure against a federal lawsuit brought by the hospital whose workers it represents.

SEIU United Healthcare Workers West, which represents about 575 workers at the Southern California Hospital at Culver City, argued in a motion to intervene Monday that it's entitled to join the suit as one of the measure's chief proponents and a group whose members stand to see a temporary $5 hourly pay bump if the law stands.

And the Ninth Circuit has again preserved a lower court order barring the U.S. Department of Homeland Security from holding unaccompanied migrant children in hotels for more than three days before moving them to licensed facilities, ruling Wednesday that the order gives the government flexibility in emergency situations.

A three-judge panel once again refused to lift a California federal judge's decision that limited hotel stays for minors to three days, despite the government's contention that the decades-old Flores class action settlement — which established standards of care for migrant children in government custody — doesn't apply to children held in custody under a Centers for Disease Control and Prevention order aimed at reducing the spread of COVID-19.

Tax

A federal judge granted Ohio a permanent injunction Thursday against part of the American Rescue Plan that prohibits states from using pandemic aid to offset tax cuts, banning the U.S. Treasury from enforcing the provision against Ohio.

U.S. District Judge Douglas R. Cole issued the permanent injunction against the so-called tax mandate provision of the American Rescue Plan, finding Ohio's attorney general proved ongoing harm arises from provision's ambiguity. The provision "falls short of the clarity" U.S. Supreme Court precedent requires for legislation that concerns the U.S. Constitution's Spending Clause when it comes to conditional grants to states, the court said.

In a similar case, Kentucky and Tennessee also asked a Kentucky federal court this week to undo the provision, arguing that they are being forced to accept funds under unconstitutional conditions.

In a motion for summary judgment, Kentucky Attorney General Daniel Cameron and Tennessee Attorney General Herbert H. Slatery III sought to enjoin Treasury and its secretary, Janet Yellen, from enforcing the restrictions on federal dollars stemming from the American Rescue Plan Act. The attorneys general told the District Court for the Eastern District of Kentucky that the provision violated the U.S. Constitution by coercing states to effectively cede their taxing power to the federal government and that the provision was impermissibly broad and ambiguous even after Treasury guidance.

Commercial Contracts

The First Circuit on Monday declined to revive a proposed class action launched by a Harvard student after COVID-19 abruptly swapped her study abroad program with online coursework, finding that the study abroad provider did not breach its contract with program participants when it implemented a no-refund policy for most students.

In an 18-page opinion, a three-judge panel determined that a lower court got it right when it found that the Council on International Educational Exchange was not required to issue plaintiff Annie Zhao a refund since the study abroad program had already started. Under CIEE's "Program Participant Contract," the program cancellation portion indicates that refunds are specifically made available when a program is canceled before it begins.

In a similar case on Monday, counsel for students seeking refunds told a Pennsylvania federal judge that Carnegie Mellon University's course catalog listing the times, classrooms and professors for each class were part of the university's promise that education would take place in-person and on-campus.

In arguments over Carnegie Mellon's motion to dismiss the proposed class action, attorney Gary Lynch of Carlson Lynch LLP said this case was different from other suits that were dismissed against the University of Pittsburgh or Temple University because it included Carnegie Mellon's course catalog, which he said supported students' claims that there were explicit and implicit promises of in-person class.

Personal Injury & Medical Malpractice

A Washington federal judge on Wednesday declined to certify a proposed class of passengers who claim they were exposed to COVID-19 while aboard a ship operated by Holland America and parent company Carnival, finding that certification is barred by a class action waiver within the cruise contract they agreed to.

Though the passengers argued that the class action waiver cannot be upheld since the cruise contract was not mentioned in an e-mail instructing them to fill out their online check-in, U.S. District Judge Thomas Zilly determined that they could have reasonably encountered the contract.

The initial complaint was filed in June 2020, with passengers Leonard C. Lindsay and Carl E.W. Zehner accusing Holland America and Carnival of exposing more than 1,000 cruise ship passengers to COVID-19 on the vessel that sailed out of Argentina in March 2020.

Technology

Lamenting that "no good deed goes unpunished," Google asked a California federal judge Wednesday to toss a proposed class action claiming that a free COVID-19 contact tracing tool the company co-created exposed unwitting Android users' sensitive personal information, saying the users only allege a "hypothetical" exposure based on speculation.

Google told the court the two lead plaintiffs lack standing to bring the suit because they do not allege their sensitive information was ever accessed through the Exposure Notification system, and that they failed to state claims for which relief can be granted because there is no allegation of any public disclosure of their information.

Plaintiffs Jonathan Diaz and Lewis Bornmann claim in their April lawsuit that Google LLC violated the California Confidentiality of Medical Information Act as well as their common law and constitutional privacy rights through its implementation of the COVID-19 exposure notification system that the tech giant developed along with Apple Inc.

White Collar

The New Jersey Supreme Court appeared likely Tuesday to sign off on a hybrid system of selecting criminal juries remotely and in person amid the coronavirus pandemic, challenging a convicted man's stance that a pre-screening process was flawed for shutting out him and his lawyers.

In reviewing the first Garden State trial under that hybrid format — which led to an 18-year prison sentence for Wildemar A. Dangcil — the court expressed skepticism over his attorney's argument that court officials improperly excused certain potential jurors without Dangcil's participation as part of a process that included questions related to COVID-19.

The so-called COVID questionnaire is "the elephant in this room," Dangcil's attorney, Brian J. Neary, said in urging the justices to overturn his convictions last fall in an attempted arson case during oral argument in Trenton. That form invested in the jury manager a discretion that, "for this set of circumstances, was inappropriate," said Neary, later adding that "we don't know what the exercise of that discretion was" both for granting deferrals to potential jurors or excusing them.

Insurance

Tapestry Inc., owner of global fashion brands like Coach and Kate Spade, has sued Factory Mutual Insurance Co. in Maryland state court, claiming that it suffered a decline of more than $1 billion in revenue stemming from the pandemic that the insurer is refusing to cover.

Tapestry also told the court in its complaint that it suffered a $652 million annual loss, just a year after a $643 million profit. It alleged that FM Global is dragging its heels on paying out the company's enormous financial losses caused by pandemic-related closures.

Factory Mutual Insurance Co., meanwhile, backed its bid to toss the Philadelphia Eagles' federal suit over COVID-19 losses by citing two recent favorable state court rulings tossing similar suits, one brought by minor league baseball teams and another filed by Philadelphia-based law firm Spector Gadon.

And a legal advocacy group tied to the National Restaurant Association has urged the First Circuit to overturn a decision finding that a group of Massachusetts eateries were not entitled to coverage for pandemic losses sustained because of government shutdowns.

In a Monday brief, the Restaurant Law Center and the Massachusetts Restaurant Association said insurers have improperly denied coverage to restaurants under their "all-risk" policies despite government restrictions that have had the effect of forcing restaurants to make physical and detrimental changes to their premises.

On Tuesday, a Texas federal judge ruled Factory Mutual Insurance Co. must disclose its underwriting history of Cinemark's insurance policy, saying such information is relevant to the core of the theater chain's $400 million COVID-19 business interruption coverage dispute.

And several business-interruption lawsuits against various insurers were tossed this past week, including those brought by the owner of Versace, Jimmy Choo and Michael Kors against Zurich American Insurance Co. and five other insurers; a New Jersey health provider against Cigna Health and Life Insurance Co.; an educational consulting firm against Sentinel Insurance Co.; a Miami oyster bar against Tokio Marine Specialty Insurance Co.; a group of California eateries against two Liberty Mutual units and an Illinois dental practice against Cincinnati Insurance Co. 

--Additional reporting by Shawn Rice, Melissa Angell, Craig Clough, Daphne Zhang, Shane Dilworth, Ben Zigterman, Dave Simpson, Eli Flesch, Hailey Konnath, Max Kutner, Bill Wichert, Abraham Gross, Braden Campbell, Matthew Santoni, Lauren Berg and James Nani. Editing by Emily Kokoll.

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