By Celeste Bott

Law360 (May 13, 2021, 6:59 PM EDT ) In-N-Out is accused of failing to follow pandemic safety protocols, Bank of America wants out of a suit claiming it didn't protect unemployment benefit recipients from fraud, and several states continue to pursue challenges to a federal law provision barring them from using coronavirus aid to offset tax cuts.

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 litigation across the country.

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

Employment

In-N-Out Burger shorted workers on pay and retaliated against them for complaining that the California-based burger chain wasn't following COVID-19 safety protocols when it was "full of sick employees," a former employee said in a proposed representative action in a state court.

Luis Becerra accused In-N-Out of a slew of California Labor Code violations stemming from his claim that the chain used false attendance issues to fire him after he complained about a manager and reported to health officials that employees weren't social distancing or wearing masks during the coronavirus pandemic.

And the California Grocers Association updated its lawsuit challenging a city ordinance that mandates premium pay for workers during the pandemic, shifting from attacking the law on its face to challenging how it applies to the group's members and their collective bargaining.

In an amended complaint, the grocers association added details to bolster its argument that the National Labor Relations Act preempts the city of Montebello's ordinance because the local law infringes on collective bargaining, after the city had argued in a motion to dismiss that the preemption claim failed.

CGA members with stores in Montebello have collective bargaining agreements with United Food and Commercial Workers International Union Local 770, and the NLRA bars state and local legislation from interfering with such pacts, the association said in new language in the amended complaint.

Also in California, a federal judge has dismissed an amended suit brought by a spouse looking to hold her husband's employer responsible for her COVID-19 infection, finding that the state's workers' compensation law bars her argument, and further noting that the employer's duty to provide a safe work environment does not extend to non-employees.

In an order filed Monday, U.S. District Judge Maxine M. Chesney axed the suit brought by Corby and Robert Kuciemba for good, handing a win to Victory Woodworks Inc.

Judge Chesney's order marks an end to the suit that was first lobbed in state court in October and subsequently removed to a federal venue in December, in which Corby Kuciemba claims her husband was infected with COVID-19 and, though asymptomatic, transmitted the disease to her.

And in Tennessee federal court, the Tennessee Titans were hit with a lawsuit on Wednesday claiming they ran afoul of the Families First Coronavirus Response Act and other federal labor laws by firing a field maintenance employee who took time off after contracting COVID-19.

Paul Miller claims in his suit that Tennessee Football Inc., the business entity that owns and operates the Titans, terminated his employment in November after he tested positive for the coronavirus and took two weeks of sick leave to quarantine.

Miller says his termination violated the terms of the FFCRA, which was signed into law during the first days of the coronavirus pandemic in March 2020. Among other things, the law provides all employees with two weeks of paid emergency sick leave.

Banking

Bank of America shouldn't have to face a proposed class action over its alleged failure to protect California unemployment benefit recipients from fraud, the bank told a California federal court, arguing that complaints that it breached its contractual obligations came up short.

In a motion to dismiss lodged by customer Jennifer Yick — which was consolidated with nine related suits in March — Bank of America claimed that though it empathizes with the cardholders who had their accounts frozen, the customers' claims fail in part because some recovered their accounts.

The bank characterized its process of freezing accounts targeted by fraud as part of the way the bank handled the "massive surge in fraud targeting California's unemployment benefits program during the COVID-19 pandemic."

Public Policy

A New Jersey state court judge imposed $124,000 in additional fines on a Camden County gym that made headlines for flagrantly defying the government's COVID-19 business restrictions, ruling that the gym's social media videos showed it continued to violate orders.

In a ruling Wednesday, Mercer County Superior Court Judge Robert Lougy granted state Health Commissioner Judith Persichilli's motion to impose penalties on Atilis Gym for flouting pandemic restrictions in November.

The Bellmawr fitness facility's owners became vocal challengers of Gov. Phil Murphy's shutdown of nonessential businesses last year during the height of the pandemic, and often posted video proof of their defiance online. The judge pointed to examples of videos the gym's owners posted on social media in November depicting the gym filled with unmasked patrons who weren't practicing social distancing, with no barriers erected between exercise stations.

And a landlord association asked the Ninth Circuit during oral arguments Wednesday to block the city of Los Angeles' moratorium on evictions amid the coronavirus pandemic, saying the ordinance provides a plethora of protections to tenants but leaves landlords out in the cold.

The Apartment Association of Greater Los Angeles told the three-judge panel that a California federal court got it wrong in denying a preliminary injunction bid against the eviction moratorium ordinance enacted in March 2020 by the city, the city council and Mayor Eric Garcetti, saying the ordinance takes away the ability to evict nonpaying tenants, in violation of landlords' constitutional rights.

Immigration

The U.S. Department of State has urged a D.C. federal court to throw out a lawsuit over the slow processing of K-1 fiancé visas, arguing that the case is moot after the department issued a "national interest" exemption to aid the applicants.

Government lawyers told the court that the suit, filed by more than 150 U.S. citizens and the foreign partners they intend to marry, should be dismissed because the secretary of state in April exempted all K-1 visa applicants from a Trump administration executive order restricting noncitizens' entry into the U.S. during the COVID-19 pandemic.

The department said that U.S. embassies and consulates responsible for processing plaintiffs' visa requests have "not unreasonably delayed the adjudication of their cases," and cited the "extraordinary effect" that the COVID-19 pandemic has had on consular processing overseas.

Tax

A federal court declined the Treasury Department's request to toss Ohio's challenge to a federal provision prohibiting states from using coronavirus aid to offset tax cuts Wednesday, but it also denied Ohio's request for a preliminary injunction.

U.S. District Judge Douglas R. Cole found that the court has jurisdiction and that Ohio has shown that it "established a substantial likelihood of success" on its claims the provision in question, in the American Rescue Plan Act, may violate the U.S. Constitution's spending clause. The court noted, however, that the likelihood is "by no means a certainty."

But a Missouri federal court Tuesday dismissed the state's bid to bar the federal government from enforcing that prohibition, finding Missouri lacks standing and the case isn't ripe for review.

Siding with arguments made by the Treasury Department, the court found Missouri hasn't shown it has suffered any injury because the only way the funds are recouped by the federal government is if the state uses them toward net tax cuts. Missouri's claims are based on events that haven't yet occurred and therefore aren't ripe, the court said.

The provision in question bars states, territories and localities that accept funds from a roughly $350 billion pot of cash from "directly or indirectly" using the coronavirus aid to offset a reduction in net revenue. Otherwise, they risk having to return the amount that is used to offset a tax cut. The funds were passed as part of the American Rescue Plan Act.

Arizona also argued this week that a federal court should reject Treasury arguments to toss the state's challenge to the same provision.

Health Care

A Florida federal judge ruled Wednesday that Adventist Health System can collect about $1.5 million after a California-based asset management firm defaulted on a settlement agreement they reached to resolve the hospital operator's fraud suit over a failed $57.5 million deal for personal protective equipment.

U.S. District Judge Paul G. Byron entered a consent final judgment against Tomax Capital Management Inc. and its principal Yehoram Tom Efrati, finding that under the terms of the parties' March 3 settlement, the defendants defaulted when they failed to make a first payment of $300,000, which was due April 12.

The judgment says Florida-based AdventHealth can recover $1.5 million, plus $10,573 in interest that accrued between March 3 and April 16, as well as attorney fees and costs incurred enforcing the agreement.

The health care system, which has hospitals in nine states, claimed in its May 2020 complaint that Tomax failed to deliver on a $57.5 million contract to provide 10 million 3M N95 respirator masks to protect its hospital workers from COVID-19.

Technology

Apple urged a New Hampshire federal court to dismiss a retooled complaint from the developer of a coronavirus-tracking app accusing the iPhone maker of violating antitrust law by keeping the app from its store, saying it did not seek the court's permission for five new plaintiffs to file anonymously.

In a 26-page filing made public Tuesday, Apple argued that Coronavirus Reporter's revised $800 million lawsuit repeated the same allegations made in the original complaint filed in January, that the developer erroneously added five unnamed apps purporting to be plaintiffs, and that it copied and pasted claims from at least three other pending antitrust cases against the company in the Northern District of California.

Claiming anonymity without first seeking permission from the district court plainly violates the Federal Rules of Civil Procedure and warrants dismissal, and "cobbling together allegations from other actions to attempt to state a claim does not save" Coronavirus Reporter's second amended complaint, Apple wrote.

The filing added that the case should be either dismissed or at the very least transferred to the Northern District, where Coronavirus Reporter concedes "redundant" litigation is pending.

Commercial Contracts

A Massachusetts federal judge on Monday handed Northeastern University a quick win in a proposed class action lodged by students seeking tuition refunds after the school pivoted to remote learning amid the pandemic, finding that a handbook the students agreed to contained a clause excusing in-person learning during so-called force majeure events.

U.S. District Judge Richard G. Stearns ruled in a 16-page order that a delivery-of-services provision found in Northeastern's handbook clearly laid out that the school has the right to adjust its programs and academic schedules when necessary.

The students — two undergraduates and one graduate student — sued Northeastern last May on the basis that they lost out on valuable in-person instruction and the use of the school's facilities when the pandemic forced everything online, and that they should be entitled to recoup some of their money.

Insurance

Society Insurance Co. this week urged an Illinois federal judge to take a favorable bellwether ruling and toss all claims in the COVID-19 business interruption multidistrict litigation asking for civil authority and contamination coverage for businesses' pandemic-related losses.

Also in Illinois, a California hotel hit Zurich American Insurance Co. and Zurich North America with a proposed class action alleging that the insurer wrongfully denied coverage for business losses it incurred during statewide COVID-19 shutdown orders.

The Menominee Indian Tribe of Wisconsin asked a California federal judge not to toss a proposed class action seeking COVID-19 coverage from several insurance companies, saying the kinds of problems the pandemic has caused the tribe's casino and other businesses meet the standards established in earlier suits.

And an insurance unit of The Hartford has urged the Second Circuit to reject a Manhattan gallery's bid to revive its suit seeking pandemic-related loss coverage, saying small business policyholders should rely on the federal government's help to lift them out of hardship instead of "the rewriting of insurance policies."

Factory Mutual Insurance Co. is seeking to net a dismissal in California federal court in a suit against the owners of the Sacramento Kings, saying they failed to show that COVID-19 and government shutdowns caused $850 million in insurable damage.

A Louisiana restaurant and catering group can send its COVID-19 business interruption suit against its insurer back to state court, a federal judge has ruled, saying the group has sufficiently shown it may recover damages against the local agency for wrongful conduct.

And several COVID-19 insurance suits were tossed last week, including one from a Chicago pastry shop seeking coverage from Westfield National Insurance Co., another from a Missouri taco restaurant chain against Cincinnati Insurance Co., a Texas hospital's complaint for losses against Continental Casualty Co., and Ralph Lauren's bid for coverage from Factory Mutual.

--Additional reporting by Shawn Rice, Daphne Zhang, Hailey Konnath, Andrew Westney, Eli Flesch, Joyce Hanson, Lauraann Wood, Sarah Betancourt, Jeannie O'Sullivan, Max Kutner, Rachel Stone, Rachel Scharf, James Nani, Nathan Hale, Lauren Berg, Melissa Angell, Bonnie Eslinger and Khorri Atkinson. Editing by Adam LoBelia.

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