The Houston Rockets basketball organization and its venue the Toyota Center sued FM Global’s midmarket unit on Wednesday seeking business interruption coverage for coronavirus-related losses.

In the suit, Clutch City Sports & Entertainment LP (d/b/a Toyota Center) and Rocket Ball Ltd. v. Affiliated FM Insurance Co., which was filed in state court in Providence, Rhode Island, where FM Global is based, the team and the venue said the insurer wrongly denied their claim last month.

According to the suit, the Rockets and the Toyota Center, which hosts concerts and other shows in addition to National Basketball Association games, bought an “all risks” commercial insurance policy from Affiliated FM that provides $412 million in property damage limits “with a substantial portion of that amount in coverage for business interruption losses.” The policy includes $100,000 sublimits for property damage due to communicable disease and business interruption due to communicable disease.

The organizations paid $719,490 in premium for the coverage, which went into effect on Oct. 6, 2019, court papers say.

The Toyota Center attracted nearly 1.3 million people to events in 2019 but has attracted only 340,000 in 2020 due to the forced closure of the venue during the COVID-19 pandemic, court papers say.

City and state officials issued various orders in March imposing restrictions on businesses in Houston and issued further orders in June after an increase in COVID-19 cases in the state.

The venue and the Rockets contend in the suit that the presence of COVID-19 at the Toyota Center constitutes physical damage that triggers coverage for lost revenue under various clauses in its policy, including business interruption, extra expense, attraction and communicable disease coverage, according to the suit.

The communicable disease sublimits “do not purport to reduce other coverages available under the Policy. They are additive,” according to the suit.

“AFM is unable to discuss because it is a legal matter,” a spokesman for FM Global said in an email in response to a request for comment.

The suit is one of scores of suits filed by businesses across the country. Most of the suits are pending, but judges in Michigan and New York ruled in favor of insurers in two cases.


Mike Curley | July 16, 2020

The NBA’s Houston Rockets and their home arena are suing their insurance company, alleging it denied them coverage for losses stemming from the COVID-19 pandemic in an act of bad faith as part of a companywide policy to deny coverage for similar claims.

In a complaint filed in Rhode Island state court Wednesday, Clutch City Sports & Entertainment LP, which owns the Toyota Center, and Rocket Ball Ltd., which owns the Rockets, say Affiliated FM Insurance Co. owes them coverage under the team’s $412 million property insurance policy.

According to the Rockets, the arena was forced to shut down after the COVID-19 pandemic hit Houston and the NBA suspended the remainder of its season, saying the presence of the virus in Houston and the arena constitutes physical loss and damage under the policy.

“The loss of functionality is no less physical than the impact of a property having lost its roof to a tornado or hurricane,” the team wrote. “Where once the property could carry on its business function, the property with a blown away and crumbling roof cannot operate in that way. Where once the property could seat patrons away from the elements, it can no longer do so. That is physical damage, as is the loss of function at Toyota Center caused by COVID-19.”

As a result of the pandemic, the arena says it had to cancel 29 events, including nine Rockets games, plus an unknown number of playoff games. While the NBA has announced plans to resume its season, the team and arena say, none of the games are set to be played at the Toyota Center.

According to the complaint, the team’s policy with Affiliated FM, which is a subsidiary of FM Global Group, expressly considers a communicable disease like COVID-19 as physical loss and damage, as the policy specifically covers “cleanup, removal and disposal” of communicable disease.

The team further alleges that the governor’s shutdown orders, which closed the doors on nonessential businesses, also trigger the policy under the civil authority clause, which grants coverage for business interruption caused by government orders prohibiting access.

According to the complaint, the policy’s exclusion for contamination does not apply, as it does not include communicable disease like COVID-19 among its list of contaminants. In addition, the team argues that the policy’s sublimits for communicable disease coverage don’t limit coverage of the business interruption and physical damage claims, and should not apply.

The complaint also cites an internal “talking points” memo from FM Global, which the team claims informs insurance adjusters that the virus doesn’t count as physical damage, nor does a communicable disease. According to the team, this memo is the basis for FM Global and its affiliates’ bad faith effort to deny coverage for COVID-19-related claims, as adjusters are not instructed to take into account the policy language or local law when denying the claims.

A spokesperson for FM Global declined to comment Thursday.

Attorneys for the Toyota Center and the Rockets referred questions to the Toyota Center. A spokesperson for the team declined to comment.

The suit comes after Minor League Baseball teams began suing their insurers over coverage after the cancellation of their season, including the farm team for the New York Yankees.

The arena and the team are represented by Stephen M. Prignano of McIntyre Tate LLP; W. Mark Lanier, Alex J. Brown, Ralph D. McBride and Matthew D. Przywara of The Lanier Law Firm PC; Denman H. Heard of Heard Law Firm PLLC; Adam J. Levitt, Mark A. DiCello and Kenneth P. Abbarno of DiCello Levitt Gutzler LLC; Timothy W. Burns, Jeff J. Bowen, Jesse J. Bair and Freya K. Bowen of Burns Bowen Bair LLP; and Douglas Daniels of Daniels & Tredennick.

Counsel information for Affiliated FM was not available.

The case is Clutch City Sports & Entertainment LP et al. v. Affiliated FM Insurance Co., case number PC-2020-05137, in the Providence/Bristol County Superior Court, Rhode Island.

The Houston Rockets and billionaire owner Tilman Fertitta are suing their insurer for denying the National Basketball Association team’s bid to tap its business-interruption insurance policy over revenue losses from the Covid-19 pandemic.

Fertitta’s Rocket Ball Ltd. and Clutch City Sports & Entertainment L.P., the respective holding companies for the team and Toyota Center where the Rockets play, sued Affiliated FM Insurance Co. Wednesday in state court in Rhode Island. That company is a division of commercial property insurer FM Global Group, which is based in Johnston, Rhode Island.

The suit is the first by an NBA team seeking to recover losses tied to the economic body blows wrought by the coronavirus. Fertitta said in court filings he paid around $719,000 in annual premiums for more than $400 million in business-interruption insurance. He said the policy covers the pandemic because it was not specifically excluded.

Steven Zenofsky, a spokesman FM Global, declined to comment on the Rocket’s suit.

Fertitta, who also owns the Golden Nugget casino and the Landry’s restaurant chain, joins more than 50 other businesses across the U.S. who’ve sued insurers for denying claims on business-interruption policies, according to data compiled by Bloomberg.

Pandemic Exclusions

The stakes in this wave of business-interruption cases are high for insurers, who say such policies were only intended for physical damage and were never priced to cover a global virus outbreak. Many specifically exclude pandemics.

U.S. companies with fewer than 100 workers could face aggregate losses of as much as $431 billion a month, the American Property Casualty Insurance Association estimated. That’s nine times more than the $47 billion the industry said it paid for covered losses arising from the Sept. 11, 2001, terrorist attacks, when only a third of claims were for business interruptions, according to the Insurance Information Institute.

Insurers could face as much as $100 billion in losses from the pandemic, Wells Fargo & Co. analyst Elyse Greenspan estimated in a note to clients in June. Chubb Ltd. Chief Executive Officer Evan Greenberg has warned that the pandemic is likely the largest event in insurance history.

The NBA is straining to restart its suspended season by having 22 teams gather at a facility in Walt Disney World in Orlando, Florida. The plan is to have an eight-game wrap-up to the regular season, then hold playoffs at the facility. Players will live in seclusion at the park during the truncated season.

New Epicenter

Lawyers for the Rockets and the team’s arena say in the suit that the pandemic, in which Houston has emerged as a new epicenter, has hit them especially hard. On July 14, Texas Covid cases increased by almost 11,000, a new record, with the statewide total numbering more than 270,000.

Toyota Center officials were forced to cancel not only NBA games, but rodeos, concerts, a World Championship BBQ cook-off and other revenue-generating gatherings, according to the suit. The Rockets’ lawsuit contend loss of use of the arena constitutes “physical damage” triggering the coverage.

“The property has been impaired,” the team’s lawyers said in their 30-page complaint. “The loss of functionality is no less physical than the impact of a property having lost its roof to a tornado or hurricane.”

The case is Clutch City Sports & Entertainment LP and Rocket Ball Ltd v. Affiliated FM Insurance Co., No. PC-2020-05137, Providence/Bristol County Superior Court (Providence).

(Reuters) – Two groups of plaintiffs’ lawyers that want the Judicial Panel on Multidistrict Litigation to consolidate hundreds of federal lawsuits asserting demands for business interruption insurance argued in briefs filed Monday that insurers are exaggerating variations in policy language and state insurance law in order to avoid an MDL.  And in an unusual development, one of the plaintiffs’ groups has submitted an expert witness declaration to back its arguments.

The expert, insurance law guru Tom Baker of Penn Law and Wharton, is building a database of COVID-19 related insurance coverage cases, focusing on the policy language cited by plaintiffs who claim they were wrongly denied coverage for COVID-19 shutdowns.  Baker said he has found that many of the provisions “are nearly identical across insurers.”  And even when policy language varies, he said in his declaration, those variations can be sorted into a relatively small number of categories.

Baker said that’s by the design of the insurance industry, in which “standardization is essential.”  The professor’s assertion seems to contradict arguments just last week in briefs by more than a dozen insurers opposing a COVID-19 insurance MDL.  As I’ve told you, one of the insurance industry’s central arguments against consolidation of scores of federal suits is that there’s too much variation in individual policies and in state insurance law to achieve any efficiency from an MDL.  The insurers contend that consolidation will not streamline the litigation but will instead delay a resolution of claims by policyholders who will have to wait years for the MDL machinery to grind into action.

The plaintiffs’ group that submitted Baker’s declaration – DiCello Levitt Gutzler, the Lanier Law Firm, Burns Bowen Bair and Daniels & Tredennick – highlighted that “irreconcilable tension” in a reply brief filed Monday.  Insurers standardized their policy forms, including relevant provisions addressing property damage and business interruptions arising from government-imposed shutdowns, in part to enable the industry to respond to legal developments, the brief argued.  Moreover, the plaintiffs’ firms Levin Sedran & Berman, Beasley Allen Crow Methvin Portis & Miles and Golomb & Honik argued in their reply brief in favor of the MDL, the insurance industry adopted a “blanket policy to deny coverage,” with denials “typically based upon the same reasoning.”

Both of the reply briefs pointed out that the U.K.’s Financial Conduct Authority has established a test case procedure for business interruption insurance claims, after analyzing policies from eight insurers and concluding that they could be broken down into no more than 17 categories.  The FCA said its test case findings will not resolve all possible permutations of policyholders’ claims, but that it will “resolve some key contractual uncertainties and ‘causation’ issues to provide clarity for policyholders and insurers.”  The plaintiffs’ reply briefs and Baker’s declaration suggested that an MDL in the country can provide similar clarity.

“There simply is no public purpose to be served by having a multitude of courts decide how standard form language responds to a common risk,” the DiCello Levitt group said in its filing.  “It not only thwarts efficient adjudication; it also thwarts the very idea of standardization.”

The MDL panel is scheduled to consider consolidation of business interruption insurance suits at the end of July.  If the judges decide to consolidate the cases, the MDL will be perhaps the biggest litigation to arise from COVID-19.



Society Insurance urged a Wisconsin federal judge to toss a proposed class action suit accusing it of wrongfully denying coverage for COVID-19-caused losses for bars and restaurants, arguing Monday that the businesses are still open for takeout and never lost access to their locations.

The insurer said the eateries and taverns suffered no direct physical loss to their properties, that closures ordered by civil authorities did not prohibit them from accessing their businesses, and that they failed to show that their food and property were contaminated by the novel coronavirus.

“The walls remain standing, the roofs have not been torn off, and the property remains untouched by fire or water — and, in fact, the plaintiffs are still allowed to use the premises for preparing and serving food for takeout,” the insurer said on Monday.

Society was hit with a proposed class action suit by half a dozen restaurants and bars in Wisconsin, Minnesota and Tennessee in April, accusing it of breaching contracts by not covering business and physical losses from state-mandated closures amid the COVID-19 pandemic. The eateries and taverns, led by Madison Sourdough and Willy McCoys, argued that COVID-19 caused property damage and government closure orders made them lose access to their business locations, according to court records.

“There has been no alteration in the structure or composition of plaintiffs’ covered property,” Society argued in Monday’s dismissal motion. The insurer said the restaurants and pubs failed to show there were “repair, rebuilding or replacement” on any of their properties, so there was no physical loss.

In the motion, Society said that Madison Sourdough’s and Willy McCoys’ switching to takeout and delivery is an “intangible” change in operations “similar to a change in zoning resulting in different hours a business can be open or a temporary suspension of a liquor license.” A short term business operation change or limitation does not create direct physical damage, it added.

The civil authority closure orders due to COVID-19 “has everything to do with protecting human life by controlling when and how people assemble in particular places, and nothing to do with any damaged property,” the insurer claimed in the motion.

“It is not plaintiffs’ premises themselves that are unsafe, but the possible threat of transmission among large groups of people within any area,” Society said in the motion.

The fact that the restaurants and bars are encouraged by state governments to do takeout demonstrates this distinction, the insurer said.

And since Madison Sourdough and Willy McCoys are able to produce food and beverages for takeout and delivery in their business locations, they cannot allege that either their food and drinks or their property are contaminated, so their argument that they suffered losses caused by COVID-19 contamination does not stand, Society added.

Representatives for both parties could not be reached for comment.

Madison Sourdough and Willy McCoys are represented by Adam Levitt, Mark DiCello and Ken Abbarno of DiCello Levitt Gutzler LLC, Mark Lanier and Alex Brown of the Lanier Law Firm PC, Timothy Burns, Jeff Bowen, Freya Bowen and Jesse Bair of Burns Bowen Bair LLP, and Douglas Daniels of Daniels & Tredennick.

Society is represented by Beth J Kushner, Christopher E Avallone, Heidi L Vogt and Janet E Cain of von Briesen & Roper SC

Rising Dough Inc. et al. v. Society Insurance, case number 2:20-cv-00623, in the U.S. District Court for the Eastern District of Wisconsin.

Expert Analysis

Well in advance of an initial public offering, late stage startups are now regularly adding high-powered, independent directors to their boards.

These companies often not only have prospects for high valuations, but also face global regulatory and compliance risks, as well as related party transaction issues, that call for a board with more sophistication and experience with navigating fiduciary duties than a group that consists solely of founders and employees of the lead venture capital investors.

While the proliferation of stockholder class actions against directors of publicly traded companies has driven directors of these companies to insist upon enhanced layers of directors and officers, or D&O, insurance to protect them from exposures to these suits, the same cannot be said of private company directors.

In the public company realm, the number of these suits in each of the last two years is double that of each of the prior several years and the costs of D&O insurance for publicly traded companies has similarly doubled.

But what about the world of private companies, especially the late-stage startups that are managing a growing spectrum of risks while taking more rounds of capital contributions at high valuations? Most directors and officers of late-stage startups would be surprised to learn that their D&O insurance may follow the standard terms for private company D&O coverage and therefore omit coverage for private suits and enforcement actions claiming securities fraud. How significant is this omission from the coverage of private company D&O policies?

As the U.S. Securities and Exchange Commission’s enforcement division recently announced, “[T]here is no exemption from the anti-fraud provisions of the federal securities laws simply because a company is nonpublic, development-stage, or the subject of exuberant media attention.” Echoing this sentiment, one of the leading securities class action plaintiffs firm, Robbins Geller, has been promoting an initiative titled, “Reining in Unicorns: Protecting Pensioners and Entrepreneurs From Fraud.”

Two factors support this focus by the SEC and the plaintiffs bar. First, startups are risky businesses by definition. They regularly rely on unproven technology and are susceptible to being driven by a culture that deprioritizes internal controls.

Second, the shareholder base of late-stage startups, thanks in part to changes in SEC rules, has expanded to include a broad group of a significant number of family offices, pension funds and traditional actively managed funds, none of which has tolerance for being misled and all of which have the wherewithal to prod the SEC enforcement division and the plaintiffs’ bar to get involved.

These two factors make for a chemistry that is ripe for the assertion of securities fraud claims.

The most common securities fraud claims against startups involve alleged failures to adequately disclose risks and problems of the business’s technology to those buying shares of the company. For example, the SEC, followed by class action plaintiffs’ counsel suing on behalf of investors, claimed in 2018 that Theranos Inc. had failed to disclose the flaws in its blood testing technology.

Another recent pairing of an SEC enforcement action and a private investor suit claimed that fiduciaries of Lucent Polymers Inc. fraudulently induced the acquisition of its securities by overstating the capability of the company’s technology to “turn garbage into gold.”

Last year, the SEC settled an enforcement action against Silicon Valley startup Jumio Inc. for overstating the revenues of the company as part of a plan to facilitate the sale of shares by the founder.

In addition, we are aware of pending private suits and SEC inquiries into allegations of misstatements and omissions in connection with private financing rounds of other high profile, venture-backed companies.

Other areas ripe for securities fraud claims are those of employee benefits and M&A. There have been a number of suits against private companies for material misstatements and omissions in disclosures to employees when the company is buying back their equity or equity awards as a means for providing the employees with liquidity.

Moreover, suits have been brought against private company targets in the merger context based on allegations of material omissions from the information or proxy statement provided to the target company’s stockholders in connection with the stockholder approval of the merger.

As companies scramble to raise money to keep themselves afloat during the pandemic, there is a meaningful risk that they will cut corners on disclosure and understate risks that will later come back to haunt them. On the flip side, there is a risk that companies will fail to inform their employees sufficiently of their positive prospects when buying back stock and equity awards from these employees while the runway to a future IPO gets longer.

Against this background, directors and officers of private companies, especially late-stage startups, should consider purchasing enhancements to their company’s D&O insurance policy that make it much more like a public company D&O insurance policy and much more likely to cover these new risks confronting private companies and their directors and officers.

We are not recommending that these directors and officers seek to have their private companies entirely replace a private company policy with a public company policy. Instead, we are recommending consideration of the following modifications to the private company form.

First, and most importantly, directors and officers need to insist on removal of the standard private company D&O policy exclusion for securities fraud investigations, enforcement actions and private investor claims.

Second, directors and officers need to insist that the private company’s D&O policy gives the private company, rather than the insurance company, control of the defense and settlement of any securities fraud investigation, enforcement action or lawsuit. This can be accomplished readily by insisting that the insurer’s duty-to-defend provisions are removed in favor of provisions requiring the insurer to pay defense costs on behalf of the insureds.

Finally, the amount of the D&O insurance limits of liability should be examined, and likely increased in many instances, based on the risks of securities investigations, enforcement actions, lawsuits and associated defense costs and settlement payments.

In the absence of appropriate D&O insurance, the indemnity and expense advancement undertakings that these companies offer their directors and officers is only as valuable as the credit of the company itself. Moonshot prospects and valuations often go hand in hand with weak balance sheets that are unable to withstand the type of material adverse developments that trigger securities fraud suits.

Venture capital fund employees who serve as directors at their portfolio companies will have the benefit of indemnities and insurance from their funds. But the new influx of high quality, independent directors, as well as executive officers, will be left to rely solely on the strength of the target company’s balance sheet and the areas covered by the company’s D&O policy.


Ethan Klingsberg is a partner and head of U.S. corporate and M&A at Freshfields LLP.

Tim Burns is a partner and founder at Burns Bowen Bair LLP.

Vinita Sithapathy is an associate at Freshfields.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

Daphne Zhang | June 9, 2020

Mutual Insurance Co. has urged a New York federal judge to toss a suit brought by Time Inc. demanding $6.9 million in indemnification of settlement and defense costs for class actions accusing the magazine company of deceptive marketing, saying that Time’s “intentional” unfair business practice is not covered by its policy.

Mutual claimed Monday that the global media liability policy it sold to Time only covers claims for “negligence,” but magazine subscribers have alleged that Time “knowingly” and “willfully” engaged in false advertising for automatic payment renewals, so Time’s practice was not “negligent” and Mutual has no obligation to cover its costs.

In the motion, Mutual said its policy specifically excludes coverage for unfair business practices and false advertising, both of which were alleged by Time’s readers. The insurer added that the consumers sought restitution of subscription fees as a result of Time’s allegedly false marketing, but that the policy does not pay for any loss in the form of “restitution.”

Time called Mutual’s move for summary judgment “an ambitious and unachievable goal” in its motion for partial summary judgment also filed Monday, claiming that a big part of the settlement payment constituted “loss” under its policy with Mutual. The magazine company demanded that “at a minimum” Mutual must pay for a significant part of its $4.98 million settlement expense.

Time and its subsidiary Synapse Group Inc. were sued by two California residents in May 2016, alleging that Time enrolled them in automatic subscription renewal without their consent and failed to inform them of the higher charges as required by California Law, according to court filings. The magazine readers told California state court that Time used Synapse as a marketing agent to indirectly trick them into annual renewals after the initial free or discounted offers.

The class representatives’ counsel filed another complaint against Synapse in June 2018, alleging that Synapse was aware of consumer complaints but still engaged in false marketing. Four months later, Time and the class representatives reached a settlement that required Synapse to pay $4.9 million.

Time first sought coverage from Mutual in June 2016, a month after it was first sued by the magazine subscribers. Mutual denied its claims a month later, saying the policy did not cover restitution and excludes coverage for unfair business practices, false advertising and disputes over fees.

Time sued the insurer in July 2018 seeking indemnification for its defense costs, and amended the complaint in 2019, after approval of the class action settlement, asking for coverage of more than $6.9 million from the two class actions.

In Monday’s motion, Mutual said it has no duty to reimburse Time and Synapse for the $4.98 million settlement payment and $2.18 million in defense costs since the consumers were only trying to recover “restitutionary damages.” The policy specifically stated that covered loss does not include restitution, it added.

Time countered on Monday that “irrespective of whether the policy definition of loss excludes coverage for restitution,” Mutual must still pay all of Time’s loss and defense costs in a legal proceeding as dictated by the policy, adding that the two class actions have caused it serious financial risk.

The media company said that under New York law, an insurer’s duty to defend is “exceedingly broad,” and Mutual should provide a defense whenever “the allegations of the underlying complaint suggest a reasonable possibility of coverage,” as its allegations already have.

Time also struck back at Mutual’s contention that neither action against Time and Synapse “contained a cause of action for negligence,” so it would not provide indemnification.

The consumers’ allegations trigger coverage since Mutual had agreed to pay legal proceeding expenses from “negligence, including any actual or alleged error, omission, misstatement” of the policyholder, Time argued.

The media company said that it was accused of failing to show offers in a “clear and conspicuous” manner as well as failing to provide an acknowledgment of subscription terms and cancellation policy. Those allegations are plainly “an alleged ‘error,’ ‘omission,’ or ‘misstatement,'” it claimed.

The magazine company added that Mutual’s arguments that the policy exclusions bar coverage do not apply. The policy exclusions are only relevant to “antitrust, price-fixing, and restraint of trade” claims, and the consumers never alleged such claims against Time, the media company said.

Additionally, “the false advertising exclusion applies only to intentional conduct” and “several of the complaints’ allegations do not allege that Time intentionally violated California law,” it said in the motion on Monday.

Mutual had argued that at the core of the consumers’ class suits are “allegations that Time and Synapse violated multiple consumer protection laws by engaging in unfair business practices,” and California enacted a law in 2006 specifically targeting marketing practice like Time’s ongoing charging of consumers’ payment cards without their explicit consent. So there is no question that the companies engaged in unfair business acts and false marketing, both of which were excluded under the policy, Mutual said.

Representatives from both parties did not immediately reply to requests for comment.

Mutual Insurance Co. is represented by William Joseph Brennan and Jacob Jonathan Palefski of  Kennedys CMK LLP.

Time and Synapse are represented by Jesse Bair and Timothy W. Burns of Burns Bowen Bair LLP and Jalina Joy Hudson of Perkins Coie LLP.

The case is Time Inc. v. Mutual Insurance Company Limited, case number 1:18-cv-06835, in the U.S. District Court for the Southern District of New York.

Alicia Grzadkowska | June 9, 2020

Insurers are opposing the consolidation of more than 100 federal lawsuits filed by US companies arguing that they should receive business interruption coverage stemming from COVID-19 shutdowns.

The insurance industry has filed more than 24 briefs opposing multidistrict litigation, following in the footsteps of arguments posed in a brief by two Chubb affiliates that stated consolidation would complicate and prolong the litigation, according to Reuters. The insurers were joined by plaintiffs’ firms, some with MDL experience, who also don’t want their cases moved to a nationwide, multidefendant proceeding.

“There is no reason for a single federal court in one part of the country to interfere with the process of policy interpretation here on a state-by-state basis especially given the lack of uniformity among the policies in question and the differing circumstances surrounding each policyholder’s loss,” read one brief filed by King & Spalding, which is representing 50-plus businesses suing Society Insurance for denying COVID-19 claims.

The MDL judicial panel will consider two motions to consolidate cases when it convenes at the end of July. The consolidation motions filed in April by the plaintiffs’ lawyers Levin Sedran & Berman and Golomb & Honik, as well as DiCello Levitt Gutzler, the Lanier Law Firm, Burns Bowen Bair and Daniels & Tredennick proposed relatively similar arguments for consolidating claims, arguing that policyholders are entitled to coverage under property damage or civil authority provisions.

The motions also argued that it would be more efficient for one court to determine outcomes that will affect thousands of businesses, versus various judges around the country delivering potentially contradictory rulings on the same questions.

On the other hand, the briefs opposing consolidation generally stated that consolidation motions are fundamentally flawed because these cases aren’t the same. Each claim deals with different insurers, different policy language, different state insurance laws, different COVID-19 shutdown orders, and different facts at every business asserting a claim for coverage. Litigation thus won’t be simplified by consolidating the cases.

“Instead, shoehorning all of these cases into a single forum for coordinated pretrial proceedings could delay their ultimate resolution by years, with no corresponding benefits in the form of efficient and effective resolution,” said one brief.

The Chubb brief also highlighted that the MDL panel is typically reluctant to consolidate litigation against multiple defendants, and that the lawsuits filed name 36 different insurance groups and 115 individual insurers. In fact, there have been only two insurance coverage MDLs ever created, and both go back more than 25 years. As recently as 2018, the panel refused to create an MDL for insurance claims stemming from hurricanes in Florida, Puerto Rico, and the Virgin Islands.

Plaintiffs’ firms opposing an MDL also said they’re concerned about delaying a decision for their clients. McKool Smith’s client, for example, is the New York City real estate developer Thor Equities and needs a quick resolution of claims it has asserted under its $750 million property damage coverage. A delay could mean the business survives or dies.

DiCello Levitt, which is leading arguments that business interruption insurance cases should be consolidated in Chicago, plans to offer up a response to insurers and plaintiffs’ firms opposed to the MDL when it files a reply brief next week.

Amanda Bronstad | April 27, 2020 | The original version of this story was published on The Legal Intelligencer

Podhurst Orseck in Miami is among the law firms suing Lloyd’s of London underwriters for denying claims, and the flow of new cases is growing.

Anticipating growth in the number of business-interruption lawsuits being filed against insurance companies in the wake of COVID-19, two groups of lawyers are seeking a multidistrict litigation proceeding to coordinate all the cases.

Many plaintiffs firms accustomed to the MDL arena are piling into new cases. Chicago and Philadelphia have been nominated to host consolidated cases.

Dozens of small businesses are suing their insurers, including Lloyd’s of London underwriters, Chubb and Admiralty Indemnity Co., alleging they rejected claims for economic losses caused by government shutdowns over the coronavirus pandemic.

“This issue — whether business interruption insurance policies will cover losses incurred by businesses forced to shutter their business as a result of the governmental orders—is one of national importance and great significance to the ultimate survival of many businesses,” plaintiffs attorney Richard Golomb wrote in a motion filed Monday before the U.S. Judicial Panel on Multidistrict Litigation. “This is a monumental issue.”

Podhurst Orseck filed a lawsuit Monday against Lloyd’s underwriters, Axis Specialty Europe SE and HDI Global Specialty SE in the Southern District of Florida, and the firm combined with Boies Schiller Flexner on another case filed in Miami federal court last week against Chubb Ltd. and Westchester Surplus Lines Insurance Co.

Podhurst Orseck managing partner Steven Marks said Tuesday that the firm has not adopted a formal position on an MDL but would oppose locations in Pennsylvania and New Jersey, a major insurance headquarters state.

“Given the volume of these claims and the differences in the policies, even for the same insurer, we think that an MDL will be unmanageable,” he said by email. “While a nationwide MDL against all insurers seems unlikely, It is conceivable that the MDL panel could have multiple MDLs in several locations” by insurer.

Overall, Marks said this is “not an easy one to predict.”

Golomb’s firm, Golomb & Honik, and Levin Sedran & Berman, which joined in the motion, represent Philadelphia eateries River Twice and Chops in two lawsuits. They want to coordinate all the cases in the Eastern District of Pennsylvania and have suggested Judge Timothy Savage, who has not handled MDLs before.

“The Covid-19 business interruption litigation is obviously a complex case that has national ramifications and requires a national solution,” Golomb said in an email. “As a result, we believe there is no better method than multi-district litigation to efficiently work toward a fair and timely resolution for all small businesses involved.”

On Tuesday, attorneys Adam Levitt of Chicago’s DiCello Levitt Gutzler and Mark Lanier of The Lanier Law Firm, who filed six class actions against insurers, suggested an MDL in the Northern District of Illinois before Judge Matthew Kennelly, who sits on the MDL panel. Joining them were Burns Bowen Bair in Madison, Wisconsin, and Daniels & Tredennick in Houston.

Cases have been filed in federal courts in Illinois, Florida, Pennsylvania, New York, Wisconsin, Ohio, California, Oregon and Texas. One motion references another nine state court lawsuits filed in Oklahoma, Louisiana, California, Texas, Indiana, Wisconsin and Washington, D.C.

The motions focused on 16 cases filed in federal courts against eight insurers, but Golomb predicted an “avalanche of cases.” Tuesday’s motion referenced statements from The Hartford and Travelers, not defendants as yet, insisting their business-interruption coverage included losses from physical damage caused by hurricanes, fires, winds or theft — not a virus. They also noted Allstate, Zurich and Allianz, also not defendants, have headquarters in Illinois.

Acknowledging the potentially large number of MDL defendants, both motions said the cases were all about the common issue of business-interruption insurance policies. They referenced other cases, like those brought against more than a dozen companies that distribute and manufacture opiate pharmaceuticals. More than 2,700 lawsuits over the opioid crisis are coordinated in an MDL in the Northern District of Ohio.

“While there is a multiplicity of parties across these litigations, the panel — in cases like Opioids, Chinese Drywall, TVM and the like — has repeatedly demonstrated its belief that, even in the most sprawling actions, coordinating pretrial processes in a single court, before a single judge, is preferable to any alternative approach,” Levitt said in an email. He prefers Chicago because it’s “a major U.S. insurance hub, as well as its central location, which is needed for this nationwide litigation.”

Insurance defendants are due to respond to the MDL panel next month.

A. J. Bayatpour, Reporter, WKOW 27 | April 23, 2020

MADISON (WKOW) — Madison Sourdough, a popular Williamson Street bakery, has filed a lawsuit in federal court against its property insurer. The bakery claims Society Insurance rejected its claim for damages from lost business due to the COVID-19 pandemic and subsequent “safer at home” order in Wisconsin.

“American businesses are going to be experiencing billions and billions of dollars of losses and these same businesses paid a lot of money to have business interruption insurance,” said Tim Burns, the attorney representing Madison Sourdough in the lawsuit.

According to the federal suit, filed in the Eastern District of Wisconsin, Madison Sourdough claims that “in the special property coverage form, Society Insurance did not exclude or limit coverage for losses from viruses.”

Rebecca Kollman, Corporate Marketing Manager for the Fond du Lac-based insurer said Thursday that the company does not comment on ongoing litigation.

“We look forward to a favorable resolution of this situation in the near future,” Kollman said.

Andy Franken, President of the Wisconsin Insurance Alliance, said it is not reasonable to expect property insurers to cover losses related to COVID-19.

“Under the contracts that are vastly used in the industry, virus protection is excluded,” Franken said. “Premiums were not collected to pay for this type of payout.”

The lawsuit argues that “contamination” is cause for the insurer to pay out a claim; Burn said COVID-19 constitutes contamination as it resulted in the closure or suspension of business.

Madison Sourdough is currently allowing customers to place orders ahead of time and pick them up on Fridays and Saturdays.

“(Insurers are) not behaving in the way they promised to behave, they aren’t behaving in the way they told regulators their policies worked,” Burns said.

Burns said he is combining the lawsuit with several other similar cases in a Chicago federal court. He said his goal is to help create a large class action case involving numerous businesses and their insurers.

Burns said he suspects the end result will be a large single settlement with insurers funding a payout to each of the plaintiff businesses.

“The defendant, in this case, the insurance companies, will eventually come to the point where they agree to put up X amount of money that ensures their survival but still gives a large portion of these claims paid,” Burns said. “And that’s likely what will happen here.”