Monday, August 17, 2020

The National Law Review

Court Concludes That COVID-19 Losses Can Qualify as “Direct Physical Loss”

“In a victory for policyholders, a federal district court found that COVID-19 can cause physical loss under business-interruption policies. In Studio 417, Inc., et al. v. The Cincinnati Insurance Co., No. 20-cv-03127-SRB (W.D. Mo. Aug. 12, 2020), the court rejected the argument often advanced by insurers that ‘all-risks’ property insurance policies require a physical, structural alteration to trigger coverage. This decision shows that, with correct application of policy-interpretation principles and strategic use of pleading and evidence, policyholders can defeat the insurance industry’s ‘party line’ arguments that business-interruption insurance somehow cannot apply to pay for the unprecedented losses businesses are experiencing from COVID-19, public-safety orders, loss of use of business assets, and other governmental edicts.”

Public Records Show Agencies Are Vigorously Enforcing New COVID-19 Requirements Against Healthcare Providers

“Since the COVID-19 outbreak began, healthcare providers have faced a slew of new regulatory requirements. As many healthcare providers know, enforcement agencies have taken starkly different approaches in terms of how often, and how vigorously, they enforce these requirements. Recent reports show, however, that agencies are closely enforcing workplace safety requirements relating to COVID-19, especially as they pertain to healthcare providers. Within the past month, the U.S. Occupational Safety and Health Administration (OSHA) and its state counterparts have initiated thousands of enforcement actions regarding compliance with COVID-19 safety rules.”

Insurance Journal

Judge Tosses Texas Barbershops’ Suit Against Insurer Over Coronavirus Losses

“A federal judge has agreed with an insurer that a group of barbershops in the San Antonio, Texas-area have no basis for claims seeking coverage under their commercial insurance policies for business interruption losses stemming from the COVID-19 pandemic.

The judge ruled that the plaintiffs suffered no physical damage as required under their policies.”

Nevada Governor Signs Business Liability And Worker Protection Bill

“Nevada Gov. Steve Sisolak has signed legislation expanding workplace safety protections for hotel and casino employees and shielding businesses that follow health directives from coronavirus-related lawsuits. . . . The law grants legal immunity to most businesses, nonprofits and government agencies as long as they follow health standards set by local, state and federal authorities and don’t exhibit ‘gross negligence.’”

Bloomberg Law

College Football’s Fractured Landscape Keeps Lawyers Busy

“Many collegiate sports stadiums across the U.S. will be dark this year, but the phones lines are blinking for lawyers advising clients coping with the financial fallout from a fall without college football.

The decision by two major athletic conferences—the Big Ten and the Pac-12—to scrap their fall sports schedules due to the coronavirus pandemic came as colleges and universities turned to outside counsel to help face a wave of Covid-19 litigation.”

Lawyers Practicing at Home Should Remember Alexa Is Listening

“Among the ethical dilemmas posed by attorneys working from home full time due to Covid-19: what to do with Alexa or other voice activated devices that could impinge upon attorney-client confidentiality?

Devices like Alexa or Google Home present “low-level” risks for confidentiality breaches, said speakers at an online ethics panel Saturday at the Association of Professional Responsibility Lawyers’ Annual Meeting.”


USCIS Staff Furloughs Will Grind Legal Immigration To A Halt

“‘The federal agency tasked with offering citizenship, green cards and visas to immigrants is planning to furlough about two-thirds of its workers at the end of the month after Congress failed to reach a deal on a coronavirus stimulus package,’ reported USA Today. ‘U.S. Citizenship and Immigration Services notified about 13,400 of its 20,000 employees that they would be furloughed Aug. 30 because of budget shortfalls.’ . . . ‘[I]mmigrant workers are at the forefront of our national response to the Covid-19 pandemic and our economic recovery. If U.S. companies can no longer process the necessary paperwork for essential workers, healthcare professionals, and vaccine researchers we are in even bigger trouble.’”


American Airlines Wants COVID-19 Refund Suit Tossed

“American Airlines Inc. told a Texas federal judge Thursday he should toss a proposed class action seeking refunds for flights canceled amid the COVID-19 pandemic, because the passengers suing canceled their own flights or never bought tickets from the airline.

American, the nation's largest airline by fleet size, also asked U.S. District Court Judge Reed C. O'Connor to compel arbitration because two of the three named plaintiffs, James Saunders and William Holloway, agreed to arbitration clauses when they bought their tickets, according to Thursday's motion to dismiss.”

What Initial Reopenings Teach Us About Virus Safety Plans

““As more and more workplaces physically reopen while COVID-19 remains a significant health concern, business leaders find themselves agonizing over when and how to do so properly — often weighing financial considerations and the need for their services against the potential health implications of being open in such precarious times.

With experts at odds over the right approach, consensus decisions are unlikely, leaving leaders alone to answer some of the most difficult questions of their professional careers.”


Shale Driller Chaparral Energy Files for Bankruptcy Due to Pandemic Woes

“Oklahoma shale driller Chaparral Energy Inc filed for Chapter 11 bankruptcy protection on Sunday, the latest U.S. energy sector casualty in recent months as COVID-19 crushes oil demand.”

‘10-Foot Tall and Bullet Proof’: Why it’s Almost Impossible to Sue Alabama K-12 Schools Over Coronavirus

“Absolute immunity protects public schools in Alabama from legal liability if they are sued for a coronavirus-related infection during school or a school-related functions like a sports game, lawyers say.

‘Generally … as long as school board officials and employees make reasonable efforts to protect stakeholders and avoid unnecessary risk, this immunity protects officials and employees,’ said Sally Smith, director of the Alabama Association of School Boards.”

The Hill

FDA Approves Saliva-Based Coronavirus Test

The Food and Drug Administration approved an emergency-use authorization for a saliva-based coronavirus test developed by Yale University researchers, the university announced Saturday.

The saliva-based diagnostic test, called SalivaDirect, is being further validated through testing of NBA players and staff who are asymptomatic, according to a news release. The project received funding from the NBA and the National Basketball Players Association.”


Masks, Surgical Gowns, Testing Supplies on FDA Shortage List

“Surgical gowns, gloves, masks, certain ventilators and various testing supplies needed to respond to the coronavirus pandemic are on the FDA's first-ever list of medical devices in shortage.”


Vacation Spots, Salons and Youth Sports Leagues want People to Sign Coronavirus Waivers. Here's What to Know

“Before this coronavirus, injury waivers could protect businesses somewhat, if they met certain criteria. With Covid-19, ‘we're in such uncharted waters ... it may be something unique for the court to interpret,’ Bell said.”

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Thursday, August 13, 2020


Policyholders Score a Win in COVID-19 Insurance Case. A Roadmap for Plaintiffs?

“A new ruling from a federal judge in Kansas City should give some hope – and possibly a roadmap – to policyholders suing their insurers for business interruption coverage after COVID-19 shutdowns. For the first time, a judge has held that the coronavirus constitutes a direct physical loss, triggering insurance coverage for property damage.

The Judicial Panel on Multidistrict Litigation, as you know, is mulling whether to consolidate hundreds of federal-court suits by policyholders whose insurers denied them coverage under property damage and civil authority provisions. If the judges end up creating a single, nationwide MDL, it will be the most consequential litigation to arise from the COVID-19 pandemic, with perhaps hundreds of billions of dollars at stake. Most plaintiffs are pushing for consolidation so they can muster their best possible case for the coronavirus caused property damage. The insurance industry, meanwhile, wants to litigate the suits individually, building case-by-case precedent.”

NFL: Union, League Agree to Daily COVID-19 Testing Through September 5

“NFL players can expect daily COVID-19 testing through Sept. 5, the players’ union said on Wednesday ahead of the season kickoff next month.”


Expected Spike In Suits May Clarify WARN Act's Scope

“Millions of U.S. workers have been abruptly let go since the onset of the novel coronavirus pandemic, and while lawsuits under the WARN Act are only trickling in, there's a wave of cases on the horizon that could alter the landscape of layoff liability, experts say.

The federal Worker Adjustment and Retraining Notification Act makes it illegal for companies to fire 50 or more people at once without giving them two months' notice. But federal regulations clarify that if there's a ‘sudden, dramatic, and unexpected action or condition outside the employer's control,’ businesses can forgo the 60-day notice requirement and simply give as much notice "as is practicable."

Tips For Effective Witness Cross-Examination In Remote Trials

“Remote trials pose a special challenge for lawyers who must cross-examine witnesses virtually. The courtroom contributes many elements — atmosphere, physical proximity, live confrontation and spectators, to name a few — which are diluted or absent altogether in remote proceedings. This altered landscape affects witnesses and lawyers alike.

Courtroom is theater, and a good cross-examination can be spellbinding. But the setting of a Zoom call can stifle much of what makes cross-examination exciting. The savvy cross-examiner must adjust to make the same truth-inducing impact on a witness during a virtual cross-examination as in a live setting.”


Post-Pandemic Legal Education

“Law schools have staunchly resisted online learning until Covid-19 rendered it a necessity. The tech-enabled, crisis-created shift from classroom to online learning occurred with astonishing speed, pervasiveness, and seamlessness. The transition exposed technology’s latent potential to support new models for delivering and consuming legal education and training. Distance learning is just the start.

What will post-pandemic legal education look like?”

Insurance Journal

Disney World Settles With Actors Over COVID-Testing

“Walt Disney World actors, who argued that the Florida theme park’s proposed coronavirus safeguards were inadequate to protect them, have resolved a dispute over COVID-19 testing, a union statement said on Wednesday.

The Actors’ Equity Association had called on Walt Disney Co. to provide regular coronavirus testing for its members, who cannot wear protective masks while performing as other park employees do.”

Judge Allows Businesses’ Lawsuits Against Insurer Over Coronavirus Losses

“A federal judge in Missouri said on Wednesday a group of hair salons and restaurants can sue their insurance carrier for business interruption losses caused by the coronavirus pandemic, which they say caused a “direct physical loss” to their premises.

The decision against Cincinnati Insurance Co. by U.S. District Judge Stephen Bough in Kansas City appears to be first victory for policyholders suing insurers for improperly denying claims related to shutdowns caused by COVID-19.”

The National Law Review

Plan Defends Valuation of Accounts in Midst of COVID-Related Market Volatility

“A 401(k) plan and its administrators are defending the administrator’s decision to require a special valuation of former employees’ account values, given extraordinary market changes due to the COVID-19 pandemic. Under the terms of the plan at issue, when a former employee seeks a distribution of his or her plan account, the account is typically valued as of December 31 of the prior year. The plan invests in a pooled investment account so the money paid in distributions lessens the funds available to pay the remaining participants. Plaintiffs are former employees who were eligible for a full distribution of their accounts in 2019 but, because the market was rising in 2019, delayed their distribution requests until January 2020, after the December 31, 2019 valuation. While the 2019 valuation occurred, the plan administrator set a special valuation date of April 30, 2020, given the extraordinary market volatility in the first quarter of 2020.

Plaintiffs filed an ERISA claim for benefits and breach of fiduciary duties arguing that the administrator’s decision improperly locked them into the market’s 2020 losses. The plan and administrator are defending their decision arguing that the suit should be dismissed because the plan provides discretion to set a special valuation date under extraordinary circumstances such as a major change in economic conditions and because allowing plaintiffs to rely on a pre-pandemic valuation would cause a windfall for plaintiffs at the expense of current participants. The case is Lipshires, et al. v. Behan Bros., et al., No. 20-cv-252 (D.R.I.).”

Employment Litigation post-COVID-19 & Other Class Action Developments

“Practical considerations aside, the pandemic will have a significant substantive impact on jury trials — as it will have a profound effect on jurors.

‘There will not be a single juror who was unaffected by this pandemic...’—Stephanie Adler-Paindiris, Co-Leader of the Jackson Lewis Class Actions and Complex Litigation Practice Group. The critical question for litigants: ‘Will jurors be sympathetic to employers that are struggling to stay afloat to employ people, or will they be viewed harshly and in an untrusting light?’ What factors may have shaped (or will reveal) jurors’ perceptions of the claims and the parties?”

The Hill

Nearly Three Dozen Health Experts Object to HHS Coronavirus Database

“The Trump administration's new coronavirus database is forcing hospitals and states to completely revamp their reporting systems and will have "serious consequences on data integrity," a group of more than 30 current and former government health officials warned.

The officials are all current or former members of the Healthcare Infection Control Practices Advisory Committee, a federal advisory committee that provides guidance to the Department of Health and Human Services (HHS) and the Centers for Disease Control and Prevention (CDC).”

Bloomberg Law

Home Health Agencies Seek Narrower Covid-19 Paid Leave Rule

“Health-care workers who have direct contact with patients should be excluded from accessing coronavirus-related paid leave benefits, according to a trade group for the home health industry.

The National Association for Home Care & Hospice wants the Labor Department to issue an emergency rule that would make only certain workers ineligible for the temporary benefits provided through the Families First Coronavirus Response Act.

The group’s call for action follows a federal court ruling that found the department illegally excluded too many health-care workers from receiving those benefits.”

INSIGHT: Covid-19, NEPA Response Offer Glimpse to Sustainable Energy Future

“As America faces a Covid-19 resurgence this summer, our energy industry continues to provide needed supplies like hand sanitizer, gloves, masks, and gowns for the pandemic. Sarah E. Hunt, CEO of the Joseph Rainey Center for Public Policy, says recent reforms to the National Environmental Policy Act will empower the U.S., working with the energy industry, to swiftly rebuild the economy and combat climate change with sustainable infrastructure.”

Financial Times

FT Global Legal Hackathon Gallery: From Whistleblower Shields to Disruptive Compliance Tools

“As the coronavirus pandemic gathered pace in March, the FT legal hackathon issued a challenge to the global legal industry: to find answers to the most pressing legal, regulatory and civil society problems emerging from the crisis.

More than 2,700 participants signed up in April from nearly 70 countries to collaborate virtually on 184 projects, including an app to prove coronavirus immunity, a system to process electronic signatures, and an online learning tool to help students in lockdown.

It was an experiment in international, online collaboration, with multidisciplinary teams working together remotely to find creative solutions to challenges thrown up by Covid 19, drawing on their shared expertise.” This article includes links to all 184 projects.”

USA Today

Florida Sheriff Forbids Employees, Visitors to Wear Masks: If They Do, 'They will be Asked to Leave'

“As the city of Ocala wrestles with an ordinance requiring face coverings for people inside businesses, Marion County Sheriff Billy Woods told his employees they will not wear masks at work, and visitors to his office can’t wear masks either. . . . Ocala and other municipalities in Marion County also advise officers not to wear masks while on duty so their communication to people they encounter is clear. Nationally, there is no consistent approach. Officers have been disciplined for not following state directives to wear masks, but Florida does not have a state-wide order.”

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Wednesday, August 12, 2020

The Hill

Navigating Workers Compensation and Damage Claims Based on COVID-19

“The coronavirus pandemic has resulted in wide-ranging litigation involving public health, health care, education, criminal justice, commerce, and virtually every aspect of modern life. Employment cases have been brought alleging, among other things, wrongful discharge, disability discrimination, and unhealthful working conditions. Legal actions for compensation or damages for COVID-19 due to workplace exposures are increasingly common and the source of contention and legislation at the state and federal levels.”

The Chicago Tribune

Illinois Supreme Court Consolidates Lawsuits Challenging Gov. J.B. Pritzker’s Coronavirus Rrders

“The Illinois Supreme Court on Tuesday moved to transfer a downstate legal challenge to Gov. J.B. Pritzker’s coronavirus-related orders by Republican state Rep. Darren Bailey to Sangamon County and consolidate it with other cases challenging Pritzker’s authority.

In moving to transfer and consolidate the lawsuit with other cases, the state’s highest court also declined the governor’s request that it weigh in on whether he has the power to issue continued emergency orders due to the coronavirus pandemic, leaving that to the lower court to decide.”

Pew Charitable Trusts

Businesses Want a Shield Against COVID-19 Lawsuits. But What About Customer Safety?

“The Wyoming measure is one of at least seven new state laws or executive orders in recent months protecting businesses from coronavirus lawsuits. A few other states are considering similar legislation, and a bill before Congress would temporarily grant protections to businesses nationwide.” “But critics worry the law will prevent some legitimate lawsuits.”


Adobe CEO Says Offices Provide Some Boost to Productivity that Remote Work Lacks

“Adobe CEO Shantanu Narayen told CNBC on Tuesday that he believes there are inherent benefits to being in an office that widespread remote work, which became a necessity during the coronavirus pandemic, cannot necessarily provide.

‘Projects which are well underway, we’ve seen tremendous momentum continue, but when you’re trying to create a new project, you want people around that water cooler. You want that sense of urgency,’ he said on ‘Squawk Alley.’ ‘I feel like productivity is impacted a little bit in that.’”

Employee Benefit News

How to Support Employees with Disabilities During COVID-19

“Benefits decision makers surveyed by Voya showed a lack of awareness of the increasing numbers of caregivers and people with disabilities and special needs in their workplace. As a result, some employers are not meeting their unique benefits needs, potentially resulting in valued employees leaving their company and increased turnover costs.”

Insurance Journal

Ralph Lauren Suit Alleges Fraud by Insurer Refusing to Cover Coronavirus Losses

“Fashion firm Ralph Lauren Corp. is suing its insurer to recoup what it says has been a huge drop of two-thirds of its revenues in the first quarter alone due to the pandemic.

Ralph Lauren Corp.(RLC) maintains that Factory Mutual Insurance Co. (FM Global) should pay up despite a contamination exclusion in its “all risks” insurance policy that defines contamination as a virus.”

McConnell’s Coronavirus Liability Shield Could Be Bargaining Chip in Relief Negotiations

“McConnell’s view that that liability protections must be part of any eventual deal doesn’t appear to be shared by Trump, who’s been non-committal on the issue. That raises the possibility that it could end up a bargaining chip once White House negotiators resume talks with Democrats, who’ve called the protections a deal-breaker.”

The National Law Review

‘Lost Wages Assistance’ Program to Boost Unemployment Insurance Benefits

“On August 8, 2020, President Donald Trump issued a memorandum, which establishes a ‘lost wages assistance program’ to help workers affected by the COVID-19 pandemic by dipping into the U.S. Department of Homeland Security’s (DHS) Disaster Relief Fund (DRF). If a state agrees to participate in the program, covered individuals will receive an additional $300 per week in addition to their existing unemployment benefits. The ‘Memorandum on Authorizing the Other Needs Assistance Program for Major Disaster Declarations Related to Coronavirus Disease 2019’ encourages participating states to contribute an additional $100 per week, which would bring the weekly premium for eligible recipients to $400. States are not required to participate in the program, but if they do participate, they must contribute the $100 per worker as prescribed by the memorandum (more on this below).”

Property Casualty360

Defining a 'New Normal' for Insurance Service

“For property and casualty insurers, COVID-19 has triggered a shift in claims away from automobile and homeowner policies as people followed stay-home mandates. However, as workers return to work in the midst of continually increasing numbers of COVID-19 cases, there is the expectation that insurers will see an increase in workers’ compensation claims. Shifts in how insurers do business are also on the horizon, and their ability to adapt to the new normal is rooted in how successfully they have on-boarded technology into their operational models.”

Asia Insurance Review

State Support Mitigates COVID-19 Losses of Credit Insurers

“Fitch also pointed out that government support schemes introduced in response to the pandemic seek to ensure that credit insurance remains available even when insolvency risks are too high to be otherwise insured and should significantly reduce net losses for credit insurers.

Insurers are said to have signed agreements with various governments, adding to the protection they already had in place against large losses through their existing reinsurance programmes.”

New York’s 14-Day Quarantine Rule after Travel is Constitutional, Upstate Federal Judge Rules

“New York State’s requirement that people quarantine for 14 days after traveling from states with high Covid-19 infections is constitutional, a federal judge ruled Tuesday.

U.S. District Judge David Hurd tossed a challenge by an Arizona woman, who argued that the state’s quarantine order violated her fundamental right to travel. It’s at least the second time a federal judge has upheld New York’s quarantine requirement, following a Downstate ruling that came to the same conclusion.”


WGA West Advises Members Against Signing Coronavirus Liability Waivers

“Members of the Writers Guild of America West have been urged by staff to not sign COVD-19 liability waivers, which exempt employers from their legal responsibility to provide a safe workplace.

The directive was sent to the 10,000 WGA members by the guild staff and asserted, ‘Your employer is required by law to provide a safe and healthy workplace both in the room and on set. The WGAW has collected studio guidelines so we can better advise you. Please do not sign a waiver of liability that seeks to shift responsibility onto your shoulders.’”


ICE Is Violating COVID-19 Safety Court Order, Detainees Say

“U.S. Immigration and Customs Enforcement is violating a preliminary injunction at its Adelanto, California, detention center by transferring in detainees from centers with known COVID-19 outbreaks and failing to test detainees with symptoms, a proposed class of detainees argued Monday.

The detainees said in a motion to enforce the preliminary injunction that despite the California federal court's April order that the center should follow pandemic response guidelines laid out by the U.S. Centers for Disease Control and Prevention, ICE is making its own rules.”

JD Supra

Employers: Duty to Provide Safe Workplace Extends Beyond Four Walls

“Under the Occupational Safety and Health Act (OSHA), employers have a legal obligation to ensure that their employees work under safe conditions free from hazards. The obligation to provide a safe workplace extends beyond the four walls of the employer; it extends to when an employee is meeting off-site with a client or vendor, or working off-site at a client’s or vendor’s facilities.

With the continued reopening of the economy, this responsibility and associated risk of liability is becoming more prevalent.”

My Employees are Teleworking – Do I Need to Worry About OSHA Work Injuries at Home?

“[T]o what extent must employers ensure that their home-based employees are working in a safe environment under the Occupational Safety and Health Act (OSH Act)? The short answer is it depends on the type of remote work.”

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Tuesday, August 11, 2020

The National Law Review

NJ Legislature Creates Rebuttable Presumption Essential Workers Contracted COVID-19 in the Course of Employment

“On July 31, 2020, the New Jersey Assembly adopted Senate Bill 2380 (S2380) to expand access to workers’ compensation benefits for workers infected with COVID-19. As amended, S2380 would create a rebuttable presumption of compensability for a broad set of COVID-19-positive workers qualifying as ‘essential employees’ in New Jersey, so long as the infected individuals worked somewhere other than their own residence at the time of infection.”

Employee Leave for Childcare This Fall As School Closures Ramp Up

“As COVID-19 continues to prompt many school districts and daycare centers to remain closed for on-site instruction and care this Fall, this creates a serious dilemma for working parents. Employers are struggling to meet staffing needs and ensure that work is being performed, but also must recognize that employees can only perform effectively when they have a plan for educating and safeguarding their children. We are receiving many questions about leave requirements and options employers have with respect to their employees in these cases. The answers depend on the size of the business, the state where work is being performed, whether the employee has already exhausted certain leave entitlements, and the where-with-all of the employer.” This article discusses some broad considerations.”

Insurance Journal

Directors & Officers’ Insurance Rates Surge on Fears of Coronavirus Litigation

“Premiums for directors’ and officers’ liability insurance surged in the second quarter, broker Marsh said on Monday, as insurance underwriters fear the coronavirus pandemic will lead to hefty litigation claims. Premiums for directors’ liability insurance, known as D&O, in Britain rose by more than 100%, while in the United States, rates for public companies were up by 59%, Marsh said in a quarterly commercial insurance survey.”

Texas Governor Extends Disaster Declaration for COVID-19

“Texas Gov. Greg Abbott has extended a statewide disaster declaration he first issued in March to allow the state to better respond to the coronavirus pandemic.

‘Renewing this Disaster Declaration will provide communities with the resources they need to respond to COVID-19,’ Abbott said in a statement. ‘I urge Texans to remain vigilant in our fight against this virus. Everyone must do their part to slow the spread of COVID-19 by wearing a mask, practicing social distancing, and washing your hands frequently and thoroughly.’”


Calif. Employers May See COVID-19 Safety Citations Soon

“The California Division of Occupational Safety and Health won the reputation of taking a backseat in response to the COVID-19 pandemic, having been anointed a remote investigatory agency in the press.

However, Gov. Gavin Newsom, on July 24, indicated plans were underway to change that image when he disclosed efforts for targeted and strategic enforcement of labor laws, no doubt in response to the recent rise in COVID-19 infections, and the perceived lackluster enforcement of workplace safety laws.”

MGM Units, Vegas Unions End COVID-19 Dispute

“Las Vegas casino unions and MGM Resorts announced on Monday that they have resolved a dispute centering on allegations that the resorts' "unreasonable" COVID-19 rules didn't protect employees.

The Culinary Workers Union Local 226 and Bartenders Union Local 165 said in a joint statement with MGM that the two sides had agreed to end a legal battle that was voluntarily sent to arbitration last month.”

The CT Mirror

COVID Sparks Lawsuits in CT, but not the ‘Epidemic’ Businesses Seeking Immunity Expected

“According to a COVID-19 case tracker established by the law firm of Hunton Andrews Kurth, as of Aug. 6, nearly half of the 50 COVID cases filed in Connecticut are insurance-related, brought by businesses suing their insurers for failing to cover losses due to coronavirus shutdowns. Nearly 25 percent of the 4,113 COVID-19 cases filed nationwide are also insurance-related contract cases.”

Bloomberg Law

Pandemic Lays Bare Fight Over Patent Strength, Innovation

“‘I think that the pandemic is a moment when everyone realizes how important technology and innovation are,’ said Alex Moss, a staff attorney at the EFF, who specializes in intellectual property. ‘I think right now, though, we are at the moment where we are still arguing about how best to put forth innovation.’

On one side are those who argue the U.S. needs to strengthen the rights of inventors and others who hold patents and expand the universe of what is eligible to be patented. Others say rights to patents are already well-protected, and making those rules stronger could keep innovative products off the market.

How those arguments play out could help shape U.S. policies, and the way the country structures its patent and innovation policies in advance of the next health pandemic, which scientists warn could be even more deadly.”

INSIGHT: How to Handle Employees Who Refuse Mandatory Vaccines

“What can employers do if employees refuse to participate in mandatory workplace vaccination programs?” This article posits “employers need a built-in procedure that permits employees to opt-out for medical or religious reasons or perhaps even social or political reasons, including those associated with the ‘anti-vax’ movement.”

New York Magazine

Trump’s Stimulus Orders Create Legal and Administrative Chaos

“The term ‘relief’ generally refers to an action that quickly (if not permanently) addresses a critical problem and produces immediately beneficial effects. With one exception, the president’s weekend round of orders aimed at side-stepping congressional gridlock over coronavirus stimulus negotiations did not supply the relief he promised in promulgating them.”


Could Massive Numbers of Nursing Home Deaths have been Prevented?

“While the vast numbers of nursing home deaths have been the greatest horror of the coronavirus crisis, the system operated by California’s Department of Veterans Affairs has been a rare bright spot.

Across the country, at least 43,000 nursing home residents have died of the coronavirus. In California, at least 3,400 have passed away. But at the eight CalVet veterans’ homes, it’s been a different story: Among 2,100 residents, half of whom require round-the-clock care, including hospice patients and Korean and Vietnam war veterans with complicated health conditions, only two have died of the coronavirus.”

Legal Scoops

Law Firms Need to Become Agile and Adaptable Post COVID-19

“A transformation can bring law firms many benefits and one of the most significant is how the work environment needs to change. Innovative law firms have already moved away from the idea of working from a central office location. They have successfully adopted a model where lawyers work full-time from home, largely enabled by the fast advances in technology.”

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Monday, August 10, 2020

Bloomberg Law

Pandemic Pressures Restriction on Where Lawyers Can Practice

“The Covid-19 pandemic is prompting calls to abolish a requirement that attorneys only practice in jurisdictions where they are admitted to the bar given the rise of remote work and other changes in professional life due to the coronavirus.”

ANALYSIS: Is Covid-19 Temporarily Holding Down Qui Tam Actions?

“While you can try to predict what types of legal actions the crisis should cause to increase or decrease, it’s hard to be sure any such trend can be attributed solely to the coronavirus, or whether there is another hidden driver.

As a case in point, federal qui tam actions filed under the False Claims Act during 2020 are down, compared to the same period in 2019. The interesting question is why.

Focusing on qui tams makes sense because federal money has flooded into the economy to alleviate the crisis. Such an influx often leads to misuse of some of those funds and, consequently, qui tam actions. While you may expect to see those actions increase after federal stimulus funds were first deployed, that hasn’t happened yet.”


Trump just signed 4 executive orders providing coronavirus relief. It’s not clear if they’re all legal.

“President Donald Trump signed four executive orders meant to provide coronavirus relief on Saturday, including a measure to extend federal enhanced unemployment benefits and potential limitations on housing evictions.”  “Trump’s authority to circumvent Congress on issues like unemployment insurance is questionable.”


How COVID-19 May Change Long-Term Aviation Outlook

“The pandemic is clearly separating winners and losers across all of the aviation ecosystem. These include carriers, original equipment manufacturers, financing sources and lessors, governments, as well as secondary ring participants, such as maintenance, repair and operations providers, airports, and the duty-free industry. . . .Dips, let alone massive drops, in travel stemming from COVID-19-related movement restrictions and plummeting demand, have made survival the foremost concern for many airlines. . . .Predicting the future of the industry right now can feel a lot like trying to rebuild New Orleans amid Hurricane Katrina. We need to deal with the storm, then assess the new reality, and then dust off the crystal ball. . . .Post-COVID-19, we see a few themes likely to define the future of the sector.”

Economics Can Inform Biz Interruption Insurance Suits

“As the COVID-19 pandemic continues to affect economy activity across the U.S., a wave of litigation has emerged. Hundreds of lawsuits in federal and state courts across the country are pitting businesses against insurance companies in business interruption insurance coverage cases.

Although the specific allegations in these cases vary, in general plaintiffs claim that their insurance policies provide coverage for business income losses due to coronavirus-related interruptions and aim to recover lost profits among other damages. These proceedings include a large number of class actions, with the U.S. Judicial Panel on Multidistrict Litigation considering petitions to centralize federal suits.

Economic analysis provides a framework that can help courts both estimate the relevant damages at issue and consider the appropriateness of plaintiffs' claims for collective action.”

The Washington Post

Packed Dorms are Risky. A Student Housing Company Still Pressured Colleges to not Limit Capacity.

“As universities anticipate beginning classes in the fall amid the coronavirus pandemic, a private student housing company pushed contracted colleges to maintain dorm capacity, according to communications uncovered via a public record request by a student.

Corvias Property Management, a real estate company specializing in military and student housing, wrote to the University System of Georgia and Detroit’s Wayne State University in late May to remind the public school officials of their financial and legal burdens, saying that reducing the privatized college dorms’ capacity would hurt the bottom line of the partnership, according to letters reviewed by The Washington Post.”

The National Law Review

Redundancies During the Global COVID-19 Pandemic [Podcast]

This podcast “discuss[es] the use of redundancies by employers during the COVID-19 pandemic, including short-time programs and government programs to avoid mass terminations.”

Don’t Forget to Check, and Re-Check, the California Reopening Guidelines

“Just one week after its release on July 24, California has already issued an updated version of its COVID-19 Employer Playbook for a Safe Reopening, which is intended to offer employers clear and practical guidance on how to safely reopen their businesses during the Coronavirus Disease 2019 (COVID-19) pandemic. In the latest update, employers are instructed to contact the local health department in any jurisdiction where a COVID-19 employee resides (as well as communicating with the local health department in the jurisdiction where the workplace is located) when there is an outbreak in a workplace. It defines an ‘outbreak’ as ‘three or more laboratory-confirmed cases of COVID-19 within a two-week period among employees who live in different households.’ The updated version also adds additional guidance for employers who are considering whether to temporarily suspend operations due to a COVID-19 infection.”

American Cancer Society Journals

A COVID‐19 Crisis in US Jails and Prisons

“[E]xperts believe that overcrowding, together with a lack of testing, inadequate infection control measures, and shortages of basic supplies for both staff and inmates, has fueled massive outbreaks in US correctional facilities. The revelations have spurred uncomfortable questions about how the facilities perpetuate and exacerbate racial disparities and how inadequate testing can blind public health officials to emerging hotspots. More broadly, experts are asking why correctional facilities were overlooked in pandemic planning and are examining the role that the nation's criminal justice system plays in infection control.”

Insurance Journal

Major League Baseball to Players and Staff: Wear Mask or You’re Out!

“Major League Baseball is cracking down on coronavirus safety protocols, mandating that players and staff wear face coverings at all times, including in the dugouts and bullpens, except for players on the field of play.

The league sent a memo to teams Wednesday outlining changes to its 2020 operations manual after outbreaks on the Miami Marlins and St. Louis Cardinals led to 21 postponements in the first two weeks of a shortened 60-game season.”

Trust in Insurers/Finance Could Take Long-Term Battering with COVID Crisis: Opinion

“Like the rest of us, the world’s finance industry is still wrestling with the huge uncertainty of a pandemic that doesn’t yet have an end. The sector’s reputation took a battering after the financial crisis, and it’s too early to say how things will go this time.

One area in the spotlight is insurance, with myriad claims being pursued by small businesses seeking redress for their COVID-related losses. . . .If the insurers win, they’ll avoid those huge expenses. But the broader cost might be even bigger. Once again, people working in the real economy would feel that the financiers don’t have their back in a crisis, and the knock-on effect on economic confidence would be severe.”

USA Today

Fact Check: Civil Rights Act of 1964 does not Create Religion-Based Exemption from Mask Mandates

“As of August 4, 34 states, the District of Columbia and Puerto Rico mandated masks be worn in public places. Many states allow for exemptions for children, those with disabilities, those who are medically incapable of wearing a mask and those engaged in specific activities like exercise, eating or drinking.

USA TODAY has reviewed all 36 policies and has not found any explicitly detailed, religious-based exemptions for individuals entering stores and other public places. Some states do allow mask exemptions for individuals in places of worship.”

New York Daily News

About your Coronavirus Education Pod... As a Legal Matter, Educating Kids at Home isn’t as Simple as it Looks

“But some parents, especially the well-heeled, are looking outside that box for better educational quality or out-of-home distance learning supervision when they need to work at paying jobs. . . .Whether these new options have any post-pandemic staying power is anyone’s guess, but for now all are on the table.

But parents be warned. Daunting legal and social issues need consideration before taking the plunge.”


COVID-Stricken Anchorage Wins Court Ruling in Diner Dispute

“As COVID-19 cases spike and hospital bed space dwindles in Alaska’s largest city, Anchorage officials on Friday won a key ruling in favor of a ban on indoor restaurant dining after a standoff over the issue moved to court.”

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Friday, August 7, 2020


COVID-19 Reveals Tensions In Food Packaging Supply Chain

“COVID-19 has shone a spotlight on the way companies that manufacture food and food packaging maintain their own inventory control systems, and the methods that they use to procure raw materials to produce intermediate products (such as films, resins and additives) or finished packaging. In many instances, the effects of these practices have raised difficult questions about the balance between lean and efficient manufacturing, and a regulated company's responsibility to ensure that it meets the minimum requirements set forth by a regulator.”

Employer Next Steps After Court Guts DOL Virus Leave Rule

“More employees are eligible for up to 12 weeks' COVID-19-related emergency paid sick leave and emergency paid Family and Medical Leave Act leave after the U.S. District Court for the Southern District of New York invalidated significant parts of a U.S. Department of Labor rule on Aug. 3.

Employers should consider whether they need to adjust their leave determinations in light of the court's decision"

Insurance Journal

Health Official: California COVID-19 Cases Underreported

“Figures showing California has slowed the rate of coronavirus infections may be in doubt because a technical problem has delayed reporting of test results, the state’s top health official said. For days, California hasn’t received full counts on the number of tests conducted nor the number that come back positive for COVID-19, Health and Human Services Secretary Dr. Mark Ghaly said Tuesday."

Flower Shop in Washington Fined $4,000 for Mask Violation

“The owner of a plant nursery in Washington state has been fined $4,200 for failing to ensure a safe workplace and potentially exposing employees to the coronavirus after preventing them from wearing masks.

The state Department of Labor and Industries cited Flower World last week for violating state guidelines intended to limit the spread of COVID-19, including not requiring masks or face coverings, not practicing social distancing and not conducting employee temperature checks, The Daily Herald reported.”

The Bulwark

Avoiding Hooverville: Why We Need to Extend and Reform Pandemic Unemployment Insurance

“Just like that, the additional $600 a week pandemic unemployment supplements have expired. With the livelihood of American workers and the economy at risk, Congress and the Administration are deeply divided on how—or whether—to renew the lifeline that has sustained both. This is a much more complex debate than the combatants recognize, and misunderstanding the dynamics may hold big consequences for workers and the economy. . . . It’s important to keep in mind that the main thing standing between workers and their jobs is not the unemployment benefits, but COVID-19 itself. People aren’t avoiding work; they are avoiding illness and the potential for it."

The National Law Review

COVID-19: Developments in Class Action Litigation Surrounding the Paycheck Protection Program

“To date, more than five million businesses have received a combined $521 billion in loans to pay their employees and certain other operating expenses during the COVID-19 crisis, which have been distributed through more than 5,400 lenders. These lenders are now facing actual and threatened class action litigation arising out of those PPP loans. The complaints filed to date came in two waves, first claiming that lenders allegedly have failed to administer loans on a ‘first-come, first-served’ basis, and most recently asserting that lenders allegedly have failed to pay fees owed to ‘agents’ of borrowers under the program.”

Tips for Transferring Trademarks in Light of COVID-19

“In 2017, we wrote about some of our favorite strategies for updating the ownership of global trademark portfolios. As we continue to support our clients during the pandemic, we’ve developed new strategies for documenting trademark ownership updates outside the U.S. Here, we share a few of these tips.

In this post, we focus on transferring — or assigning — trademark portfolios involving marks in multiple countries. Generally, the transfer of trademark rights from one entity to another must be documented with the trademark office in every country where the assignor owned marks.”


Facebook’s Dilemma: How to Police Claims about Unproven COVID-19 Vaccines

“The social media giant, which has long been under fire from lawmakers over how it handles misinformation on its platforms, said it had in recent months banned such claims as ‘social distancing does not work’ because they pose a risk of ‘imminent’ harm. Under these rules, Facebook took down a video post on Wednesday by U.S. President Donald Trump in which he claimed that children are ‘almost immune’ to COVID-19.

But in most instances, Facebook does not remove misinformation about the new COVID-19 vaccines that are still under development, according to the company’s vaccine policy lead Jason Hirsch, on the grounds that such claims do not meet its imminent harm threshold. Hirsch told Reuters the company is ‘grappling’ with the dilemma of how to police claims about new vaccines that are as yet unproven.”

Bloomberg Law

Pro Athletes’ Taxes Based on Which Pandemic-Play State They’re in

“The income professional athletes earn in any opposing team’s state they play in over the course of a season is typically subject to those states’ income taxes, what is known as the jock tax. For states with income taxes such as California, it means hundreds of thousands in additional tax revenue for every game the Los Angeles Lakers or Golden State Warriors host. With Covid-19 forcing the NBA and NHL to play out the rest of their season in select cities, some players will avoid state income taxes altogether while others will be on the hook for much more—all depending on which state they call home.”

Alabama Revises Campus Reentry Form after Concerns it Waived Legal Rights

“The University of Alabama has amended the language in an acknowledgement form required for students, faculty and staff to return to campus.

The students, faculty and staff took issue with the original version, saying it read more like a legal waiver that absolved the school of any responsibility should they become infected with COVID-19 on campus.”

The Philadelphia Inquirer

For PA and NJ Law School Graduates, Bar Exams will be Held Despite COVID and Questions about the Testing Ordeal

“The in-person exam in Pennsylvania, initially set for July, was postponed twice because of the pandemic. Law school deans, the Pennsylvania Bar Association and students have agitated for ‘diploma privilege’ – meaning graduates from accredited law schools could start jobs as law firm associates without the exam.

But on Thursday, the state’s Administrative Office of the Courts declared that anyone who registered for the bar exam must now take it online Oct. 4 and 5. Yet the uncertainty isn’t over for new graduates, who could wait months longer to get their results.”

The Hill

Arizona Teacher Fined $2,000 for Quitting over In-Person School Reopenings

“An Arizona teacher is facing a $2,000 fine from a school district after quitting his job over health concerns amid the ongoing coronavirus pandemic. . . . Peterkin told the outlet he typically instructs 50 to 70 students. However, students cannot wear masks or face coverings to stem the spread of the virus and play certain instruments or sing in band and chorus class.

The teacher told Good Morning America that he suggested teaching music theory in the fall semester and that he brought his concerns to the principal on July 10, who directed it to human resources. Peterkin resigned on July 20 after not hearing from human resources”

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Thursday, August 6, 2020

Insurance Journal

New York City Erects Quarantine Checkpoints to Curb Coronavirus

“New York City will put up COVID-19 quarantine checkpoints at key entry points to ensure that incoming travelers from 35 states with outbreaks comply with the state’s 14-day quarantine mandate, Mayor Bill de Blasio said on Wednesday.

The measure underscores the determination of what was once the epicenter of the U.S. outbreak to prevent a resurgence of cases emerging elsewhere. While cases are down 5% nationally, they soared last week in Oklahoma, Montana, Missouri and 17 other states.”

AIG’s Zaffino Sees COVID-19 Creating Beneficial ‘Flight to Quality’

“AIG President and Chief Operating Officer Peter Zaffino said that the insurer has seen accelerated rate improvements and other gains as clients react to the ongoing COVID-19 pandemic.

‘We believe that COVID has resulted in a flight to quality and we are benefiting from this market dynamic,’ Zaffino said during American International Group’s Q2 2020 earnings call on Aug. 4.”

The National Law Review

Unmasking the Takeaways from 3M’s Lanham Act Litigation Against N95 Mask Price Gouging

“3M’s litigation campaign centered on Lanham Act trademark infringement and false advertising claims, some of which involve notable legal theories. For example, although the sale of genuine products at an inflated price is not a typical basis for trademark infringement, 3M has so far enjoyed success with that theory. The early returns on 3M’s price gouging cases highlight the flexibility of the Lanham Act and provide useful takeaways with respect to trademark and advertising law and the standards for injunctive relief."

COVID-19 and PREP Act Immunity

“In the wake of rising COVID-19 infections, many private companies have donated goods and services, developed testing and diagnostic tests, provided COVID-19 testing support to state and federal governmental entities, and worked to develop antiviral drugs that will be effective against the novel virus. Some of these tests and processes are new and unproven, and the immunities offered by The Public Readiness and Emergency Preparedness Act (PREP Act) are key to their willingness to continue their efforts to support the COVID-19 response. The PREP Act was enacted by Congress and signed into law by George W. Bush in 2005 in the wake of an avian influenza outbreak. Vaccine manufacturers lobbied for this legislation to preempt state vaccine safety laws in the case of an emergency declaration by the US Department of Health and Human Services (HHS).”


Irish Insurers Told To Pay Litigants' Costs In Test Cases

“Insurers should pay the legal costs of small companies that pursue litigation over rejected claims for business interruption in test cases, even if the insurer wins the dispute, according to directions issued by the Central Bank of Ireland.

The central bank said in a so-called framework document Wednesday that businesses challenging the decisions of insurers are already struggling financially from being forced to close during the lockdown. Campaigners have accused the regulator of being ‘invisible’ as disputes over business interruption policies in the country pile up.”

Congress Should Revisit CARES Act Tax Provisions

“With the signature of the president on March 27, the Coronavirus Aid, Relief and Economic Security, or CARES, Act became law. Recently, Congress has proposed a number of follow-up approaches to buttress the CARES Act and to provide additional relief and stimulus. . . .” This article “assess[es] important Internal Revenue Service guidance that undermines the CARES Act and describe how the U.S. Department of the Treasury may be able to supercharge these new tax rules to provide more stimulus relief.”

Bloomberg Law

INSIGHT: EPA’s Covid-19 Relief for Approvals of Diesel Engines—Is It Enough?

“The EPA issued guidelines to diesel engine manufacturers on how it will consider the Covid-related circumstances that may delay their ability to meet Clean Air Act certification and compliance requirements.” This article “look[s] at the flexibilities and say the EPA may need to consider temporarily amending its certification requirements.”

INSIGHT: Lessons From a Rare in-Person Courtroom Experience in a Pandemic

“What’s it like appearing in court during a pandemic? Gibson Dunn attorneys share their experiences from a five-day in-person evidentiary hearing in New York. They say masks and social distancing were required, but they impacted the usual benefits of face-to-face communication—visual cues, the ability to hear clearly, and close conversations with co-counsel.”

Compliance Week

Don’t Wait for Congress to Save your Firm from Coronavirus Liability

“Your firm should already have a written coronavirus workplace safety plan in place. If it doesn’t, stop reading this story and start writing it. . . .The foundation of your firm’s legal defense is a written workplace safety plan that follows federal, state, and local guidelines for protecting your employees from contracting coronavirus on the job.

What a liability shield would do—according to employment lawyers whose job is to advise firms on how to react to such lawsuits—is discourage plaintiffs and trial lawyers from filing coronavirus-related workplace complaints. It would not provide a legal shield from egregious situations in which an employer was found to be careless, reckless, or knew about the danger of coronavirus infection in the workplace but did nothing to address it. As one employment lawyer put it, a liability shield law won’t provide legal cover to “employer stupidity in the extreme.”

The Star Advertiser

Debate over Coronavirus Law Heats Up

“The power of words is being tested in Japan, where efforts to fight the novel coronavirus — bound by a law tailored to a different disease — remain strictly voluntary.

But that may soon change, after a nationwide surge in new infections triggered debate at all levels of government on not only how the law should be changed but when.”

Bloomberg Government

Schools Seen as Virus 'Petri Dish' as Trump Pushes for Reopening

“Children can transmit coronavirus, a Johns Hopkins public health expert will tell a House select subcommittee on the coronavirus, in a challenge to President Donald Trump‘s push to reopen schools in the fall.

‘We can say with confidence that outbreaks in schools are likely,’ Caitlin Rivers, an assistant professor at the Department of Environmental Health and Engineering at Johns Hopkins Bloomberg School of Public Health, will tell lawmakers Thursday. Researchers don’t yet know if children without symptoms transmit the virus as efficiently as adults, she says in testimony prepared for the hearing.”

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Wednesday, August 5, 2020

Bloomberg Law

INSIGHT: The PPP Loan Forgiveness Period Begins—So Do the Hard Questions

“Businesses applying for Paycheck Protection Program loan forgiveness need to prepare for hard questions and document requests from their lenders, the government, or both. To save time and money,” this article “says borrowers needs to know where their records are located, designate a subject matter expert, and decide if outside counsel is needed.”

The National Law Review

School’s Out for…Fall? Managing Employees’ Need to Care for Children When School Is Virtual

“While many employers are not governed by laws that provide leave to employees who need to care for their children because schools are providing only virtual learning, the Families First Coronavirus Response Act (FFCRA) requires most employers with fewer than 500 employees to provide 12 weeks of leave to eligible employees in the event of school closures. The FFCRA only applies if an employee cannot work from home. Many employees may have exhausted the available 12 weeks of FFCRA leave to care for a child before the 2020/2021 school year starts. However, if employees have any remaining leave under the FFCRA, they may use it if their child’s school remains closed (or partially closed) to in-person learning in the fall.”

Judge Vacates Exemptions for Health Care Workers in Families First Coronavirus Response Act

“A Southern District of New York federal judge in Manhattan vacated a final rule by the Department of Labor (DOL) that exempted certain workers from accessing emergency benefits under the temporary federal pandemic-related paid leave program, which expires at the end of 2020. For employers in the health care industry, the decision vacated the sections of the DOL final rule that broadly define health care exemptions, contending that the DOL regulations defied the intent of Congress by excluding virtually the entire health care sector. Further, the judge voided portions of the rule which allowed employers to deny leave if their employees lacked available work. The judge also partially vacated provisions of the rule limiting intermittent leave and requiring workers to document their reasons for taking time off. Notably, the rule only applied to small-to-midsize employers (fewer than 500 employees), and the carveout for businesses with 500 or more employees still stands.”


ABA House Calls on State Bar Admission Authorities to Cancel Unsafe In-Person Bar Exams During COVID Pandemic

“By a vote of 256-146 Tuesday afternoon, the American Bar Association House of Delegates approved Resolution 10G, urging ‘the highest court or bar admission authority of each jurisdiction to cancel and to not administer any in-person bar examination during the COVID-19 pandemic until and unless public health authorities determine that the examination can be administered in a manner that ensures the health and safety of bar applicants, proctors, other staff, and local communities.’ The Resolution was originally put forward by the Virgin Islands Bar Association, the ABA Law Student Division, the ABA Young Lawyers Division, and several other ABA Sections.”

Insurance Journal

How the Pandemic May Change ‘Work-Life Balance’ Forever

“Even among those employers that workers say handle work-life balance best, adapting to the work-from-home world has been a struggle.

‘Some of the best companies for work-life balance] have really great paid-time off policies, flexible working schedules, good parental leave, sabbaticals and gym credits,’ said Amanda Stansell, senior research analyst at workplace website Glassdoor. But as workers shifted to remote work, the spirit of in-person events and company culture needed to be recreated at home.”


Ohio Joins New Jersey in Ordering Most Students to Wear Masks at Public Schools

“Ohio Governor Mike DeWine on Tuesday ordered all students in grades K-12 to wear masks at public schools that reopen, one of the few states along with New Jersey to issue such a statewide mandate for those attending in-person classes.”


Regulatory Concerns For US Cos.' Offshore Service Centers

“It is no surprise that digital natives and digitally enabled companies have better endured the current crisis and adjusted faster to the new normal compared to the digital laggards.

While digital transformation is not a new endeavor, the crisis will propel business leaders to seize the opportunity to harness the power of technology and digital models to reinvent their businesses for the next normal. . . .As enterprises ramp up their digital transformation efforts, the pandemic has prompted many to reexamine their sourcing strategy and reconsider the build versus buy analysis, balancing business continuity, agility and resilience against cost and control levers, and risk diversification.”

Ohio Tax Talk: Rethinking The Work-From-Home Tax

“Now more than ever, companies and organizations are evolving to allow employees to work from home. Some companies are even mandating telework. If remote work is the way of the future, Ohio and its municipalities are going to need to rethink their method of income taxation.

Just as many Ohio businesses have been adversely impacted by the coronavirus pandemic, so have local government treasuries as they work to manage reduced tax receipts.”

Financial Times

Uber and Lyft drivers in US face Suspension as COVID-19 Delays Legal Checks

“US drivers for Uber and Lyft are being suspended for weeks because the coronavirus crisis has stalled the court system needed for background checks.

As well as criminal checks when a person first signs up, large gig economy companies typically carry out an annual check on their workers, as well as monitor local arrest records.

But this year, the third party company used by Uber and Lyft said the closure of courthouses because of the pandemic had led to 'unavoidable delays in processing some background checks.'"

Rochester First

New York State Rolls Back Legal Immunity for Hospitals, Nursing Homes

“Nursing homes and hospitals in New York can once again be held liable in lawsuits and criminal prosecutions for care provided to patients not being treated for COVID-19 under a law signed by Gov. Andrew Cuomo Monday.”

CBS News

Factory Worker's Death Highlights Debate over GOP-Backed Coronavirus Liability Shield

“As essential workers across the country accuse employers of failing to keep them safe on the job, Senate Republicans are pushing to shield businesses from legal liability if workers or customers are exposed to COVID-19.”

BBC News (N. Ireland)

Coronavirus: Department Facing Legal Action over Special Schools

“The Department of Education is being taken to court over its renewal of legislation on how special schools operate during the lockdown.

Last week, social distancing was removed as a requirement in childcare.

However, at the same time Education Minister Peter Weir said the advice to special schools will remain the same for the time being.”

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Tuesday, August 4, 2020

USA Today

COVID-19 is a Disaster for People with Disabilities. Without 30-Year-Old Law, it Would be Worse

“Though everyone has been suffering during the COVID-19 pandemic, people with disabilities have perhaps been the most disadvantaged, their lives the most disrupted... The situation would be far worse...without a law that turned 30 Sunday.

The Americans with Disabilities Act, signed on July 26, 1990, by President George H.W. Bush, guarantees equal protection for people with a wide range of disabilities, from mental health issues to physical challenges. . . . The ADA has been invoked repeatedly during the pandemic to protect people with disabilities. Early on, Alabama created a rationing system for ventilators used to treat people severely ill with COVID-19. Those with intellectual disabilities weren't eligible to be put on a ventilator, according to the state's rules. The federal Office of Civil Rights declared that a violation of the ADA, and the state revised its prioritization list.”

Bloomberg Law

INSIGHT: B2B Companies Need to Realign in a B2C E-Commerce Economy

"Business-to-business (B2B) companies need to reassess their dependence on traditional business models and adopt business-to-consumer (B2C) operations and strategies to survive and thrive in the e-commerce economy. ...That means considering and heading off potential liabilities inherent in online transactions with individual consumers and understanding privacy and data laws and restrictions."

Thousands of Law Grads to Take Bar Exam In Person Despite COVID

“A total of 23 states, including North Carolina, are going ahead with in-person bar exams the last week of July, even as cases of Covid-19 rise across the country. At least eight states require test-takers to sign waivers agreeing not to sue if they’re hospitalized from the disease. Other states, such as New York, California, and Illinois, have moved the test online, while several are tinkering with a provisional licensing system that would allow law school graduates to work as an attorney under supervision prior to passing the bar.”


McConnell’s Warning of Lawsuit ‘Epidemic’ Undercut by Lack of Litigation

“Senate Majority Leader Mitch McConnell warns that businesses need protection against “an epidemic of lawsuits” that will arise as workers and customers sue employers over exposure to COVID-19.

Yet data suggests that coronavirus-related litigation isn't very contagious.

Of the 3,727 coronavirus-related cases that have been filed since March, just 185, or less than 5 percent, fall into the personal injury category that McConnell describes — plaintiffs claiming fear of exposure, potential exposure or exposure to Covid-19, according to an analysis by the American Association for Justice of a litigation tracker run by law firm Hunton Andrews Kurth. Instead, the bulk of the legal actions deal with insurance claims and civil rights, including people challenging stay-at-home orders.”

Insurance Journal

California Scrutinizing Amazon’s Treatment of Workers During Coronavirus Outbreak

“California’s attorney general and state and local agencies are investigating whether Inc. has taken adequate steps to protect its workers from the coronavirus pandemic, according to a court filing on Monday.

Attorney General Xavier Becerra’s office, California’s Division of Occupational Safety and Health and the San Francisco Department of Public Health ‘have all opened investigations into Amazon’s practices’ around the pandemic, San Francisco Superior Court Judge Ethan Schulman wrote in the filing.”

Court Rules New Jersey Can Shut Down Gym That Defied Closure

“A state judge ruled that New Jersey authorities can shut down a gym that has repeatedly defied Governor Phil Murphy’s executive order to remain closed during the COVID-19 pandemic.

The ruling held Atilis Gym of Bellmawr, in the Philadelphia suburbs, in contempt of court. It authorized the state health department to put locks on the doors or put up barriers to ensure compliance.”


Should We Shield Businesses From COVID-19 Lawsuits?

“We've come to expect legal waivers at places like ski resorts and bungee-jumping facilities, but colleges and all sorts of typically safe businesses — from hair salons to dentists' offices — are using them to try to escape legal accountability for injuries and deaths as they reopen during the pandemic. In the age of COVID-19, every reopened institution is now a bungee-jumping facility.

The University of New Hampshire and colleges across the U.S. are doing more than asking students to sign legal documents. They've joined with the U.S. Chamber of Commerce and other business organizations to lobby the federal government for stronger shields against liability claims in the next rescue package. In other words: One Nation, Indivisible, Under Waiver. But is it a good idea?”

The National Law Review

California Issues Employer COVID-19 Playbook Guidance for Enforcing Mask Requirements

“In the guidance, California emphasizes deescalating the situation when workers encounter coworkers or members of the public who are not wearing a mask and minimizing the risk of workplace violence. In doing so, the guidance recommends that employers train their workers on how to handle these types of situations before they arise. The guidance also advises employees not to approach coworkers or members of the public, such as customers, in order to enforce mask requirements. Instead, the guidance suggests that employees report such situations to supervisors. In turn, the guidance advises supervisors to consult with their human resources departments in the event that a supervisor is unsure as to how to handle the situation.”

DOL Issues New Guidance on COVID-19, the FFCRA, the FMLA and the FLSA

“On July 20, 2020, the Department of Labor (DOL) released three updated, new and separate questions and answers on COVID-19 with respect to the laws it enforces – the Family and Medical Leave Act (FMLA), the Fair Labor Standards Act(FLSA), and the Families First Coronavirus Response Act (FFCRA), as well as a revised poster and an easy-to-read, quick reference fact sheet for employers on the FFCRA.  The DOL answered questions about telework and compensability of hours under the FLSA, and explained that nonexempt work performed during the pandemic will not impact the exempt status of a position, among other matters.”  This article summarizes a few of the more noteworthy updates.


College Refund Class Actions Face Damages Hurdles

“Over the past several months, college and university students have brought dozens of class actions across the country seeking a refund of tuition payments and other fees after their schools moved from in-person to online instruction in response to the COVID-19 pandemic. . . . Similar to the college tuition refund cases, consumers in numerous other recent class actions have sought restitution in the form of the difference between the price they paid for a product or service and the market value of the allegedly inferior product or service that they received. In some cases, courts have found the damages models proposed in these cases sufficient for class certification.

However, as we explain below, the vast majority of these consumer class actions differ from the college refund class actions in at least two substantial ways.”

Law Firms Must Note Pandemic's Outsize Impact On Women

“In the wake of the COVID-19 pandemic, gender roles in many families have reverted to scenes from the 1960s, when fictional brand character Betty Crocker delighted in kitchen work; Betty Draper, the fictional character on ‘Mad Men’ mothered her three children with the help of a martini; and women's rights leader Betty Friedan wrote about ‘the problem that has no name’ — where women give up their own ambitions, dreams and time in the service of husbands and children.

A few months ago, many of us believed that the days of the three Bettys were long gone. But in the new normal of working from home, women are once again trying to juggle their full-time professional obligations with the primary responsibility for home-schooling and other childcare, not to mention cooking, grocery shopping, household chores and tending to aging parents.”


There is No Wave of COVID-19 Shareholders' Class Actions (Yet)

“Remember back in mid-March, when the stock market was gyrating and businesses were just beginning to reckon with COVID-19 lockdowns? Corporate defense firms warned that opportunistic shareholders' lawyers were poised to pounce. Plaintiffs' lawyers said at the time that they were in no rush to bring class actions against companies that failed to anticipate the impact of the coronavirus or to disclose exposure to the ill effects of pandemic shutdowns. But Kent Schmidt at Dorsey & Whitney, who started tracking COVID-19 cases in March, told me in April that COVID-19 shareholder class actions might tick up in the second quarter of the year as anxious companies looked for good news to report.”

Georgia's Governor, Atlanta's Mayor to Square Off in Court on Mask Wearing

“A Georgia judge is scheduled on Tuesday to hear arguments in an emergency motion brought by Governor Brian Kemp to stop the city of Atlanta from enforcing a mandate that people wear masks in public to help slow the spread of coronavirus.

But in a late night legal move, the hearing that was set for 10 a.m. (1400 GMT) Tuesday was moved to 2 p.m. so the two parties can attempt binding mediation starting at 8:30 a.m., according to a filing in Fulton County Superior Court.”


Senate Republicans Have a New Stimulus Bill. Here's What's in it.

“Senate Republicans have finally unveiled their opening bid in negotiations for the next coronavirus stimulus package, setting up a serious clash with Democrats in the coming days over funding for unemployment insurance and state governments.

The GOP bill arrives as Congress faces a pressing deadline: Enhanced unemployment insurance (UI) is set to expire this week, with millions receiving their final federal unemployment payments allotted by the Cares Act this past weekend. A federal eviction moratorium has also elapsed, and state and local governments increasingly feeling the strain of both dwindling tax revenues and rising coronavirus costs are looking to Congress for help.”

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