Last week, Judge Daniels dismissed a putative class action against NYU over its decision to conduct classes remotely during the COVID-19 pandemic.  He concluded the plaintiff could not identify any actual promise or agreement by which NYU stated its classes would be held in person:
Continue Reading Judge Daniels: NYU’s Remote Learning During the Pandemic Is Not a Contract Breach Because NYU Never Clearly Promised In-Person Classes

Based on various orders recently appearing on the dockets, it appears that in-person civil jury trials will begin in May, under a centralized calendaring system. One typical order explains as follows:

The Southern District of New York has reconfigured courtrooms and other spaces in its courthouses to allow civil jury trials to proceed as safely

In a decision last week, Judge Cote ruled that the COVID-19 pandemic qualified as a “natural disaster” that fell within the scope of a contractual force majeure clause. The defendant auction house had agreed to auction a painting owned by the plaintiff and pay it a guaranteed minimum price, but invoked its right to terminate the agreement after the auction was postponed by the COVID-19 pandemic and related government restrictions.

The force majeure clause applied in the event of “circumstances beyond our or your reasonable control, including, without limitation, as a result of natural disaster, fire, flood, general strike, war, armed conflict, terrorist attack or nuclear or chemical contamination.” Judge Cote held that the pandemic was “a circumstance beyond the parties’ reasonable control” and a “natural disaster”:


Continue Reading Judge Cote: COVID-19 Pandemic is a “Natural Disaster” for Purposes of Contractual Force Majeure Clause

Last week, a group of plaintiffs filed a complaint against federal agencies (including the Department of Health and Human Services and the Centers for Disease Control and Prevention) challenging the federal government’s handling of information reporting related to the COVID-19 pandemic.  The plaintiffs include a public charter school, a non-profit health and housing group, a New York City councilmember, and a medical student.  According to the complaint, the Pandemic and All-Hazards Preparedness and Advancing Innovation Act of 2019 mandated the creation of a “biosurveillance network” to provide information on the progress of public health emergencies like the COVID-19 pandemic, but the agencies tasked with creating and maintaining the network have failed to carry out their biosurveillance duties, failing to adequately report information, and failing to involve the public in policymaking decisions (as required by the law):
Continue Reading NYC Plaintiffs Challenge Federal COVID-19 Information Reporting in New Suit

Earlier today, Judge Oetken issued a decision invalidating several provisions of a Department of Labor rule implementing the paid sick leave and emergency family leave provisions of the Families First Coronavirus Response Act. The Labor Department had excluded employees who were unable to work because their employers had no work available for them as a result of the economic downturn caused by COVID-19. It also adopted a broad definition of “health care provider,” which would have allowed “an English professor, librarian, or cafeteria manager at a university with a medical school” to be denied paid leave.

Continue Reading Judge Oetken Strikes Down Labor Department Restrictions on COVID-19 Paid Leave

In an opinion today, Chief Judge McMahon upheld a New York executive order that allowed tenants to apply their security deposits towards rent and that temporarily suspended evictions.

She ruled that the executive order did not violate the U.S. Constitution’s Takings Clause because landlords necessarily have entered into a heavily regulated area of the economy, and because the executive order was consistent with the type of ordinary ebb and flow of that regulation — as opposed to an impermissible destruction of landlords’ property investment:
Continue Reading Chief Judge McMahon Upholds New York’s COVID-19 Eviction Suspension

Last week, Chief Judge McMahon scheduled what appears to be the first remote trial to be held in the Southern District during the COVID-19 pandemic.  The trial will commence on July 6, 2020 in Ferring Pharmaceuticals v. Serenity Pharmaceuticals, a patent dispute involving drugs used to treat the condition nocturia (a form of waking during the night).

Judge McMahon considered several issues that counseled in favor of a remote trial:
Continue Reading Judge McMahon: Holding Bench Trial in July via Remote Platform is a “No-Brainer”

In an opinion yesterday, the Second Circuit affirmed Judge Torres’s decision (covered here), to reinstate the Democratic Primary on June 23.

The Board of Elections argued that the cancellation was necessary to limit the spread of COVID-19, but the Second Circuit concluded that this “justification is overstated for at least two reasons”:
Continue Reading Second Circuit Upholds Reinstatement of Democratic Primary

In an opinion this morning, Judge Vyskocil denied an application for a TRO by a Queens Republican who sought to have her name on the ballot for the June 23 primary.  The plaintiff’s complaint was focused on the fact that, due to the spread of COVID-19, New York had reduced the number of days available to gather enough signatures to appear on the ballot.

Judge Vyskocil denied the application because (among other reasons) she found that the State’s interest in controlling COVID-19 met the standard of “reasonable and nondiscriminatory” necessary to justify the shorter time period, particularly given that the State also correspondingly reduced the number of signatures required:
Continue Reading Judge Vyskocil Denies Congressional Candidate TRO Arising from Reduction in Number of Days to Gather Signatures to Appear on Ballot