Court filing

Complaint (Exhibit 1) — Twenty Two Ten Ltd. et al. v. Society Insurance

Record facts

Court	U.S. District Court for the Northern District of Illinois
Filed	2020-09-17

U.S. District Court for the Northern District of Illinois · No. 1:20-cv-05483 · Doc. 1 · 2020-09-17 · Docket on CourtListener

Summary

A complaint filed September 17, 2020 as Document 1 in Twenty Two Ten Ltd. et al. v. Society Insurance, A Mutual Company, Case No. 1:20-cv-05483, in the U.S. District Court for the Northern District of Illinois, Eastern Division, reproduced under an Exhibit 1 cover. Nine Chicago-area bar and restaurant plaintiffs allege that businessowners property policies sold by the defendant cover business income losses caused by closure orders, and that their claims were denied by form letters. The complaint seeks a declaratory judgment and damages for breach of contract and bad faith claims handling under 215 ILCS 5/155. Pled in the alternative under Fed. R. Civ. P. 8(d)(2) and (3), it adds nationwide class claims for unjust enrichment and under the Illinois Consumer Fraud and Deceptive Business Practices Act. Policies are attached as Exhibits A-I; the filing runs 35 pages and demands a jury trial.

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Full text

EXHIBIT 1

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

TWENTY TWO TEN LTD. (d/b/a) THE
BOILER ROOM LOGAN SQUARE, an
Illinois Corporation; MOOSCA, LLC (d/b/a)
FLORAFAUNA, an Illinois Limited Liability
Company; CORK CITY PRODUCTIONS,
LLC/676 CLUB, LLP (d/b/a) THE GREEN
DOOR TAVERN/THE DRIFTER, an Illinois
Limited Liability Company; PENNYVILLE
STATION LLC, an Illinois Limited Liability
Company; NEW LOTTIES, INC. (d/b/a)
LOTTIES, an Illinois Corporation; CHR
CORPORATION (d/b/a) FRONTIER
CHICAGO, an Illinois Corporation; INA MAE
TAVERN & PACKAGED GOODS, INC., an
Illinois Corporation; 18TH ST. CAFÉ, LLC
(d/b/a) SIMONE
, an Illinois Limited
Liability Company; and, HENDRICKX
BELGIAN BREAD CRAFTER, LLC, an
Illinois Limited Liability Company,

Plaintiffs,

SOCIETY INSURANCE, A MUTUAL
COMPANY, a Wisconsin Corporation,

Defendant.
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Case No. 20-CV-05483

Hon.

JURY TRIAL DEMANDED

COMPLAINT (INCLUDING CLASS ACTION COMPLAINT PLED IN THE ALTERNATIVE)
Plaintiffs Twenty Two Ten Ltd. (d/b/a) The Boiler Room Logan Square; Moosca, LLC (d/b/a)
Florafauna; Cork City Productions, LLC/676 Club, LLP (d/b/a) The Green Door Tavern/The Drifter;
Pennyville Station LLC; New Lotties, Inc. (d/b/a) Lotties; CHR Corporation (d/b/a) Frontier Chicago; Ina
Mae Tavern & Packaged Goods, Inc.; 18TH St. Café, LLC (d/b/a) Simone ; and, Hendrickx Belgian Bread
Crafter, LLC, by and through their attorneys, Fuksa Khorshid, LLC, and on behalf of all those similarly
situated (with respect to Counts IV and V only seeking a rebate of premium on behalf of a Nationwide
Class, in the alternative under Fed. R. Civ. P. 8(d)(2) and (3)), state and allege their Complaint against
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Society Insurance, a Mutual Company
Society ) as follows:
NATURE OF THE ACTION
1.
Plaintiffs are small businesses restaurants, dining establishments and bars in the
Chicago area.
2.
-
commercial property insurance issued and sold to them by the Defendant Society. Under longstanding and
bedrock principles of insurance law, Plaintiffs are entitled to payment under those policies for business
income losses suffered as a direct result of state, municipal and local executive shutdown orders and
restrictive executiv
properties by physically impairing, detrimentally altering, and rendering them nonfunctional or only
partially functional as the businesses and institutions they formerly were.
3.
Prior to the Closure O
But the Closure Orders brought an end to all of that activity by imposing direct physical restrictions that
d them nonfunctional for their intended purposes. By altering
the physical premises all of which are critical to Plaintiffs operations their establishments were
materially and detrimentally altered by the Closure Orders. Under the Closure orders, Plaintiffs had to
close or block off sections of their physical space, create or install barriers, manipulate fixtures and other
equipment into nonfunctional arrangements, place physical markers on floors and walls, and redesign routes
for entrance and egress. Vast amounts of square footage in their space many painstakingly designed to
were lost, detrimentally altered, and
rendered nonfunctional for their intended purposes.
4.
from Defendant Society. True and Correct copies of the Businessowners Policy for each Plaintiff are
attached hereto as Exhibits A-I and incorporated by reference herein. These 100+ page Policies are
substantially identical in relevant part, and were authored and issued by Defendant and contain numerous
promises to pay Plaintiffs
for a broad range of losses that the Plaintiffs might
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suffer including business interruption.
5.
At the time Defendant underwrote and sold the Policies, it understood and expected that it
would be insuring these properties as fully functioning and operational businesses. Defendant knowingly
calculated Plaintiffs business interruption premiums based in material part on the revenue they expected
Plaintiffs to generate as fully functioning and operational businesses. Defendant is fully aware that
Plaintiffs businesses and properties have been physically impaired by the Closure Orders and that Plaintiffs
have lost the means to generate that revenue i.e., that Plaintiffs have suffered direct physical loss of and
damage to their insured properties. Defendant is fully aware that with no operations or partial operations, a
universe of risks for which they would pay business interruption and other claims are now mitigated or
entirely absent. A shuttered kitchen (for example) has no fires. When (for example) bars and restaurants
have no customers (or customers limited to fractional capacity) there are no or fewer other kinds of claims
under the Policies. Defendant s claims payout records since March 1, 2020 (and compared to prior years)
will bear out what they have saved. Yet Defendant has continued to charge and accept full premium
payments from Plaintiffs as if their insured properties remained fully functional and operational. This is
the basis for an unjust enrichment claim against the Defendant, which must be upheld in the event that
coverage is denied. This unjust enrichment claim is pled in the alternative pursuant to Fed. R. Civ. P.
8(d)(2) and (3) on behalf of a Fed. R. Civ. P. 23(b)(3) Nationwide Class of
policyholders whose
businesses were in any manner impaired or constrained by Closure Orders, and is found in Count VI. This
same misconduct also supports a claim (Count V) by Plaintiffs and the Nationwide Class for violation of
the Illinois Co
the similar laws of other states where Defendant sells insurance.
6.
either it needs to pay
Plaintiffs on business income losses they sustained due to their Closure Orders, or, if Society prevails
against coverage, then these Plaintiffs and all others similarly situated in a Nationwide Class must receive
a rebate of premium for the windfall that Society kept for itself by reduced claims due to Closure Order
shutdowns, partial operations mandates and other constraints. This is a prime example of why Fed. R. Civ.
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P. 8(d)(2) and (3) exist to render complete justice to the aggrieved. As set out in Counts IV and V, this
premium rebate claim is eminently appropriate for class adjudication, and these are claims Defendant must
face if it prevails on its arguments against coverage.
7.
Despite the fact that Defendant has accepted Plaintiffs insurance premium payments,
Defendant has summarily denied Plaintiffs claims for coverage arising from government-ordered
interruption and complete or partial closure of their business operations, in breach of
contractual obligations under the Policy. Defendant denied Plaintiffs claims with cursory letters sent (on
, without any reasonable
explanation or individualized investigation or consideration. In some cases (like Pennyville), Society denied
the claim in less than 24 hours after receiving the claim. True and correct copies of the forms of denial
letters for each Plaintiff are attached hereto as Exhibits J R and incorporated by reference herein.
8.
Defendant on information and belief, is using at least two form denial letters and only
altering minor details. Specifically, Exhibits J, K, L and Q use one form, (with the same typographical
errors on page 2), while Exhibits M, N, O and P use another form. Furthermore, Defendant sent out form
and P, p. 1). Those representations are palpably false.
9.
Significantly, Defendant admits in its form denial letter that: Society is here to support
our insureds to the best of our ability (Exhibits J, K, L and Q, p. 1) (emphasis added).
10.
As Defendant Society
insurance, which covers only specified causes of loss, all-risk property insurance provides business insureds
with the comfort of knowing that even unprecedented and unanticipated risks of loss are covered. Due to
the breadth of coverage, Plaintiffs paid a substantial premium for this type of insurance. Here, the Closure
Orde
bases of coverage alleged by
the Plaintiffs herein. Fed. R. Civ. P. 8(d)(2), (3).
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11.
As set forth at length herein, Plaintiffs have been forced to file this action for a declaratory
judgment
and refusal to meet its obligations under the Policy, in
order for this Court to establish that Plaintiffs are entitled to receive the benefit of the insurance coverage
they purchased. Plaintiffs seek reimbursement and indemnification of the business losses they have
sustained,
breach of contract
bad faith
claims handling under 215 ILCS 5/155. As pled in more detail herein, Plaintiffs pose two major bases for
Nationwide
Class action claims for unjust enrichment and violations of the Illinois Consumer Fraud and Deceptive
Business Practices Act, in the alternative, as set out in Counts IV and V.
THE PARTIES
12.
Plaintiff Twenty Two Ten Ltd. (d/b/a) The Boiler Room Logan Square
is a corporation organized and existing under the laws of Illinois with its principal place of business
at 2210-12 N. California Ave., Chicago, IL 60647-2904, located in Cook County and in the Northern
District of Illinois. Plaintiff The Boiler Room conducts all of its business operations in Illinois. The Boiler
Room has been a neighborhood staple in Logan Square for 10 years and is known as a destination for dining
and entertainment in the city. It is known for its quality, fresh, and handmade products as well as innovative
marketing, delivered in a unique environment. The Boiler Room is a diverse, inclusive, and socially
conscious business that has served this community with passion. Due to Closure Orders, The Boiler Room
had to close its restaurant to dine-in and bar operations beginning on March 16, 2020. On June 4, 2020, The
Boiler Room
social distancing measures. The Boiler Room lost over $66,534 in sales within the first two weeks (44.02%
decrease from last year), over $94,672 in April (68.35% decrease from last year), over $103,529 in May
(66.76% decrease from last year), over $78,229 in June (51.74% decrease from last year), and over $41,998
in July (31.12% decrease from last year). Moreover, The Boiler Room lost approximately $500 in fresh
produce. The Boiler Room also had to spend approximately $700 on PPE and sanitation supplies to comply
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with the requirements of the Closure Orders and subsequent reopening plans. Furthermore, The Boiler
Room incurred a sewer bill for $1,820 due to customers' flushable disinfectant wipes.
13.
Plaintiff Moosca,
limited liability company
organized and existing under the laws of Illinois with its principal place of business at 11 W. Illinois St.,
Chicago, IL 60654 located in Cook County and in the Northern District of Illinois. Plaintiff Florafauna
conducts all of its business operations in Illinois. Furthermore, Florafauna, has one managing member Louis
Waddle, with an address at 676 N. Orleans St., Chicago, IL 60654-3916, located in Cook County and in
the Northern District of Illinois. Florafauna opened for business on June 14, 2019. Created by a husband
and wife team, Florafauna is a global rustic restaurant in River North that features vibrant flavors from
around the world. The space is a tropical-themed, open-concept loft design with large windows that flood
the space with natural light. Due to Closure Orders, Florafauna had to completely close its restaurant
beginning on March 16, 2020. To date, it remains closed. During the summer months last year, Florafauna
sales were at least $100,000 per month; this year, it has a 100% decrease in sales.
14.
Plaintiff Cork City Productions, LLC/676 Club LLP (d/b/a) The Green Door Tavern/The
Drifter
is a limited liability company organized and existing under the laws of Illinois
with its principal place of business at 676-678 N. Orleans St., Chicago, IL 60654-3916, located in Cook
County and in the Northern District of Illinois. Plaintiff The Green Door conducts all of its business
operations in Illinois. Furthermore, The Green Door, has one managing member Louis Waddle, with an
address at 676 N. Orleans St., Chicago, IL 60654-3916, located in Cook County and in the Northern District
of Illinois. First built in the 1870s following the Great Chicago Fire, The Green Door has been a Chicago
staple for over 150 years. Still a neighborhood favorite, its warm wooden interiors, decorative backsplash
of Chicago memorabilia, and down-to-earth staff have kept its many loyal customers happy through
and its hot, summer nights. Due to Closure Orders, The Green Door had to close its
restaurant to dine-in services in March of 2020, losing approximately $122,924 in sales in March (58%
decrease from last year), approximately $162,110 in sales in April (95% decrease from last year),
approximately $162,810 in sales in May (96% decrease from last year), approximately $148,740 in sales in
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June (95% decrease from last year), and losses continue to accumulate. Although open in limited capacity,
The Green Door cannot fully open due to restrictions in the Closure Orders.
15.
Plaintiff Pennyville Station LLC
is a limited liability company organized
and existing under the laws of Illinois with its principal place of business at 112 Main St., Park Ridge, IL
60068-4030, located in Cook County and in the Northern District of Illinois. Plaintiff Pennyville conducts
all of its business operations in Illinois. Furthermore, Pennyville, has one managing member Anthony
Antonacci, with an address at 2920 Lahon, Park Ridge, IL 60068, located in Cook County and in the
Northern District of Illinois.
a
family friendly, community-based restaurant. A true testament to hard work, the owner has worked his way
up from various serving roles, to restaurant management, and has recently opened up Pennyville as his first
independent restaurant venture. Due to Closure Orders, Pennyville had to close its restaurant to dine-in
services beginning on March 16, 2020, losing approximately $40,000 in sales within the first two weeks,
$70,000 in sales in March, $100,000 in sales in April, $100,000 in sales in May, and loses continuing to
mount as of the date of filing. Moreover, Pennyville had to spend approximately $30,000 in outdoor
furniture, personal protective equipment, outdoor heaters, and an awning.
16.
Plaintiff New Lotties,
is a corporation organized and
existing under the laws of Illinois with its principal place of business at 1923-1925 W. Cortland St.,
Chicago, IL 60622-1038, located in Cook County and in the Northern District of Illinois. Plaintiff Lotties
conducts all of its business operations in Illinois. Rich in Chicago history, Lotties began as a grocery store
with a speakeasy in the basement during prohibition, and is now featured on the popular television show,
Chicago Fire. Patrons come for the rich Chicago history and tasty beverages. Due to Closure Orders, Lotties
has lost approximately $700,000 in sales over the span of 15 weeks (March to July). In the summer months,
Lotties typically has approximately $60,000 in sales per week. However, due to the closure Orders Lotties
has made only approximately $13,000 per week. Additionally, Lotties had to spend at least a couple
thousand dollars to make the establishment safe, which included purchasing personal protective equipment
and more disposable products.
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17.
Plaintiff CHR Corporation (d/b/a) Frontier Chicago
and existing under the laws of Illinois with its principal place of business at 1072-1074 N. Milwaukee Ave.,
Chicago, IL 60642, located in Cook County and in the Northern District of Illinois. Plaintiff Frontier
conducts all of its business operations in Illinois. Featured in West Town, patrons frequent Frontier to enjoy
the inventive food experience, stylish lodge and beer garden. Due to Closure Orders, Frontier has lost
approximately 75% in sales over the span of 15 weeks (March to July). Compared to previous years, the
net income should have been $418,084 but was instead approximately $51,666 from March to July. Losses
continue to mount. Additionally, Frontier had to spend at least a couple thousand dollars to make the
establishment safe, which included purchasing personal protective equipment and more disposable
products.
18.
Plaintiff Ina Mae Tavern & Packaged Goods,
is a corporation organized
and existing under the laws of Illinois with its principal place of business at 1415 N. Wood St., Chicago,
Illinois 60614, located in Cook County and in the Northern District of Illinois. Plaintiff Ina Mae conducts
all of its business operations in Illinois. Ina Mae, with its funky New Orleans vibe is located in Wicker Park
and features live music. Due to Closure Orders, Ina Mae has lost approximately 65% in sales over the span
of 15 weeks (March to July). Compared to previous years, the net income should have been $255,298 but
was instead approximately $81,611 from March to July. Losses continue to rise. Additionally, Ina Mae had
to spend at least a couple thousand dollars to make the establishment safe, which included purchasing
personal protective equipment and more disposable products.
19.
Plaintiff 18TH St. Café, LLC (d/b/a) Simone
limited liability company
organized and existing under the laws of Illinois with its principal place of business at 960 W. 18th St.,
Chicago, IL 60608-2312, located in Cook County and in the Northern District of Illinois. Plaintiff Simone
conducts all of its business operations in Illinois.
,
Michael Noone, Desiree Grant, and Alfred W. Grant, all with an address at 960 W 18th Street, Chicago, IL
60654-3916, located in Cook County and in the Northern District of Illinois. Simone is a well-known
Pilsen Café that supports local artists. Located in the back of the café is a community space used for art
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exhibits and various cultural events. It features fresh food and live music. Due to Closure Orders,
had to close its restaurant beginning on March 16, 2020, losing over $142,6000 in sales within the first two
weeks (58.8% decrease from last year), over $200,800 in April (100% decrease from last year), over
$236,300 in May (100% decrease from last year), and over $98,9000 in June (45.4% decrease from last
year). Moreover,
had to spend
approximately $2,000 in order to make the patio comply with the requirements of the Closure Orders and
subsequent reopening plans.
20.
company organized and existing under the laws of Illinois with its principal place of business at 100 East
Walton St., Chicago, IL 60611, located in Cook County in the Northern District of Illinois. Plaintiff
Hendrickx conducts all of its business operations in Illinois. Furthermore, Hendrikcx has two managing
members, Renaud Hendrickx and Dominique Schewebach, all with an address at 100 East Walton St.,
Chicago, IL 60611. Hendrickx advertises itself as an authentic Belgium bakery in Chicago and, as such, is
an attraction to tourists. Due to the Closure Orders, Hendrickx has lost approximately $21,500 per month
since mid-March of 2020. Sales have dropped by 32% in March, 41% in April, and 31% in May. Hendrickx
reopened on June 3, 2020 for outdoor seating with 50% capacity, and June 26, 2020 for indoor seating at
25% capacity. However, in order to open safely Hendrickx had to spend extra money to make the
establishment safe, which included purchasing personal protective equipment, gloves, masks, and hand
sanitizer.
21.
Defendant Society Insurance, a Mutual Company is a Wisconsin insurance company
organized and existing under the laws of Wisconsin with its principal place of business at 150 Camelot
Drive P.O. Box 1029, Fond du Lac, WI 54936-1029. Defendant is registered with the Illinois Department
of Insurance to conduct business in Illinois. Defendant specializes in both commercial and personal lines
of insurance.

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JURISDICTION AND VENUE
Subject Matter Jurisdiction
22.
This Court has federal subject matter jurisdiction over the claims set forth in this action
under 28 U.S.C. § 1332 because there is complete diversity of citizenship between the parties and the
amount in controversy exceeds $75,000, exclusive of interest and costs.
23.
Each Plaintiff is incorporated in and has its principal place of business in Illinois.
Additionally, on information and belief, all members of the limited liability companies have an address in
Illinois. Accordingly, Plaintiffs are all citizens of Illinois.
24.
Society is incorporated in and has its principal place of business in Wisconsin.
Accordingly, Society is a citizen of Wisconsin.
25.
The amount in controversy in this action is well in excess of $75,000. Plaintiffs have had
their operations reduced to carryout and delivery only and in some cases had to close completely. Each
Plaintiff has lost business income of anywhere from $20,000 to $230,000 per month. As of the date of
filing of this action, Plaintiffs have sustained collectively over 3.5 million dollars in business income losses
that continue to mount. Additionally, as set forth in Count III below, Plaintiffs make a claim for statutory
bad faith under 215 ILCS 5/154.6, which entitles Plaintiffs to statutory penalties and attorneys fees of an
additional $540,000 or more as of the time of filing of this action. Therefore, the amount in controversy in
this action at time of filing for each Plaintiff is well in excess of $75,000.
26.
This Court also has jurisdiction over this action pursuant to the Class Action Fairness Act
of a class of plaintiffs is a citizen of a state different from any defendant and the aggregated amount in
Defendant wrote over $100 million in commercial insurance premiums for 2019, so a premium rebate of
less than 5 percent would fulfill this amount in controversy.
Personal Jurisdiction
27.
The Court may exercise general personal jurisdiction over Defendant due to the fact that
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ing itself to
jurisdiction of the courts in Illinois. Defendant exercises substantial, systematic and continuous contacts
with Illinois by doing business in Illinois, serving insureds in Illinois, and seeking additional business in
Illinois.
28.
The Court may exercise specific personal jurisdiction over Defendant in this matter, as
Plaintiffs

29.
Further, Defendant has submitted to jurisdiction in the Northern District of Illinois pursuant
to the Illinoi
-209, by: (a) transacting business in Illinois; (b) contracting
to insure a person, property or risk located within this district at the time of contracting; and (c) making a
contract substantially connected with this district and Illinois. See 735 ILCS 5/2-209(1), (4), (7).
30.
This Court has jurisdiction to grant declaratory relief under 28 U.S.C. § 2201 because an
actual controversy exists between the parties as to their respective rights and obligations under the insurance
Policy concerning Plaintiffs loss of business arising from the Closure Orders.
Venue
31.
Venue is proper in the Northern District of Illinois pursuant to 28 U.S.C. § 1391(b)(1) and
(c)(2) because Defendant is a resident in this district by virtue of being
jurisdiction with respect to this action.
32.
Venue is proper in the Northern District of Illinois pursuant to 28 U.S.C. § 1391(b)(2)
because a substantial part of the events or omissions giving rise to Plaintiffs claims occurred in this District.
FACTS
33.
Plaintiffs are all restaurants, eating establishments and bars in the Chicagoland area that
have been in business for years, working hard to build up a patron base and excellent reputation for quality
and service. A key part of what Plaintiffs provide is atmosphere a location for excellent food and drink
in a place their patrons can enjoy.
establishments enjoy the atmosphere and physical location and are willing to pay for it. The nature of
businesses requires the utilization of its physical business premises and the specialized
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equipment located therein to provide quality food, drink and service. Direct personal service to their
Plaintif
restaurant operations were brought to an immediate halt,
restricted to takeout and delivery orders which comprise a fraction of its monthly revenue. Even when
remaining partially open (in an attempt to mitigate damages), restaurants are still rapidly losing money due
to the reliance on third-party delivery and pick-up applications.
The Policy and the Coverages
34.
Like many other reputable and honest small businesses, Plaintiffs all conducted their
businesses responsibly and obtained what is known
themselves and others from a myriad of risks.
35.
Defendant aggressively markets and sells CGL policies, advertising such policies as
designed as a way for businesses to protect themselves in the event of a loss.
36.
Plaintiffs purchased their Society Businessowners Policies through agents of Society, as
indicated on their respective Policies. (Ex. A I
the time of the losses suffered, and were renewals of identical or practically identical policies in force in
years prior. Plaintiffs each paid a premium to Defendant for the coverages in their Policies. (Ex. A I).
37.
The Policies are what is known in the insurance industry as
ies that provide
broad coverage for losses sustained from any cause.
38.
In the Policies, Defendant promised to pay Plaintiffs
s
direct
or damage to their business premises. (Ex. A I, Coverage Form TBP2 (05-15), p 5-6 of
32).
39.
Defendant further promised in the Policy to pay Plaintiffs
business
premises, provided that Plaintiffs
within the area
(Ex. A I, Coverage Form TBP2
(05-15), p 7-8 of 32).
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40.
Moreover, Defendant promised in the Policies to pay Plaintiffs costs to clean and sanitize
the premises as well as the actual loss of business income and extra expense sustained from
C
(i.e., dangerous condition on the premises)
(Ex. A I, Coverage Form TBP2 (05-15), p 8-9 of 32).
41.
In the Policies, Defendant promised to provide Plaintiffs with broad coverage for lost
(Ex. A I,
Coverage Form TBP2 (05-15), p 6-7 of 32).
42.
What is more, although
industry contained purported
s (invalid for reasons not necessary to explore
herein)
(Ex. A I).

43.
Despite Defendant promises in the Policies to pay for lost business income and extra
expenses incurred by Plaintiffs in circumstances such as these, Defendant has denied all such claims.
44.
Defendant is retaining, enjoying, and investing the premium / claims payment windfall it
has achieved from profoundly lower commercial policy claims by its commercial insureds (members of the
Nationwide Class) whose businesses are shuttered or reduced in operations by Closure Orders.
45.
Rather than honor their policy contracts, D
approach to these insurance claims
has been to leave its insureds, the taxpayers, and society as a whole to bear the economic burden of Society
refusal to honor its own obligations under its policies.
strategically investing the resulting windfall.
46.
Defendant has designed and executed, in bad faith, a systematic and consistent form and
cursory denial of all claims, such as Plaintiffs claims, in order
under the Policies. After making their claims, Plaintiffs received
cursory, form denial letters
(Ex. J Q) which Plaintiffs believe are similar in substance and form to thousands of letters Defendant has
sent out to any and every insured who has made or will make a claim for losses sustained during the current
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crisis. As mentioned above, Plaintiffs are aware of at least two form denial letters that Society consistently
sends to policyholders.
47.
Society failed to undertake or conduct a reasonable investigation of Plaintiffs claims under
their Policies, in violation of its duties under Illinois law.
48.
Defendants denials to Plaintiffs were not only woefully inadequate, but they were based
on the false and blanket assertion that there is no direct physical loss or damage to property at the business
premises of Plaintiffs. (Ex. J - R). As set forth herein, that blanket assertion runs contrary to Illinois law,
established science, and the facts.
Federal Rule of Civil Procedure 8(d) Permits Alternative Pleading
49.
The Federal Rules of Civil Procedure embody public policy and the mandate of law that
parties may both plead in the alternative, and state as many separate claims (or defenses) as they may have,
regardless of consistency:
Rule 8. General Rules of Pleading
. . .
(d) Pleading to Be Concise and Direct; Alternative Statements;
Inconsistency.
. . .
(2) Alternative Statements of a Claim or Defense. A party may set out 2
or more statements of a claim or defense alternatively or hypothetically,
either in a single count or defense or in separate ones. If a party makes
alternative statements, the pleading is sufficient if any one of them is
sufficient.
(3) Inconsistent Claims or Defenses. A party may state as many separate
claims or defenses as it has, regardless of consistency.

50.
Plaintiffs proffer in this case two fundamental, alternative bases for coverage: 1) the
Closure Order Basis for Coverage; and 2) the Scientific Basis for Coverage. Rule 8 permits, indeed
mandates, that Plaintiffs may proceed with these alternative theories in the pursuit of justice.
The Closure Order Basis for Coverage
51.
direct

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reasonable
would
include detrimental physical effects which alter and impair the functioning of the tangible, material
dimensions of property
especially where, as here, property is rendered nonfunctional for its intended
purpose due to the altered appearance, shape, and other material aspects of the property. That is precisely
the type of loss and damage caused by the Closure Orders.
52.

Instead, Defendant intentionally left
each of these terms undefined
even though it knew, or should have known, that these terms can reasonably
be construed, and indeed have been construed by courts, more broadly than the narrow self-serving
definition that they contend should provide the terms only meaning. As undefined terms in the Policies,
each of these terms must be given its plain and ordinary meaning consistent with the knowledge and
expectations of an ordinary, reasonable insured.
53.

erty
tangible, material aspects of an object and those that are purely intangible, such as sentiment, emotion, or
imagination. In addition, under a

e. To the extent that any
language in the Policies is ambiguous, it should be construed against Defendant and in favor of coverage.
54.
Here, the Closure Orders caused both property loss and property damage by directly,
physically impairing the functionality
spaces. Dining rooms, bars, or floors are closed, areas blocked off, barriers erected, appearances altered,
Case: 1:20-cv-05483 Document #: 1 Filed: 09/17/20 Page 15 of 35 PageID #:15

furniture moved, fixtures altered, spaces shuttered, floors marked, plexiglass mounted
these are but some

55.
Each of the Plaintiffs understood, expected, and believed that their Policies would cover
the direct physical loss of or damage to their property that they suffered as a direct result of the Closure
Orders. This understanding and expectation is both subjectively and objectively reasonable. Defendant
cannot now redefine or narrow the meaning of physical loss or damage
or any other undefined terms in
the Policies
to support a denial of coverage in these unprecedented circumstances.
56.
Because there is a reasonable construction of these terms that provides coverage to
Plaintiffs for their business interruption claims
and based on bedrock insurance law principles requiring
policy terms to be construed broadly in favor of coverage for Plaintiffs
claims.
The Scientific Basis for Coverage
57.
Reports
-
in early 2020. The first case in the United States was confirmed on January 20, 2020, followed rapidly by
many others, culminating in a medical and economic disaster.1
58.
By March 15, 2020, Illinois Governor J.B. Pritzker, exercising his emergency powers
under state law, ordered many public gathering places closed in an effort to slow or stop the spread of
COVID-19. On March 20, 2020,
-
orders were issued by Chicago Mayor Lori Lightfoot pursuant to her emergency powers under state law.
Many similar orders have followed, all prohibiting or severely curtailing the use of business property and
premises.
59.
claims denials. Illinois
direct
commercial insurance policies. See e.g.,
, 720
N.E.2d 622, 625 26 (Ill. App. Ct. 1999),
(Dec. 3, 1999).

1 New England Journal of Medicine, March 5, 2020, https://www.nejm.org/doi/full/10.1056/NEJMoa2001191.
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60.
COVID-19 may well be the most dangerous physical substance to emerge upon humankind
to date during the 21st century. The danger of the presence of COVID-19 on a surface or in the air at a
premises renders that premises potentially fatal and directly physically affected, damaged, and unfit for
human use. Like asbestos, COVID-19 can linger in the air or on surfaces (including equipment and air
ducts on a business premises) and endanger human life. Unlike inanimate asbestos (but just like a spreading
fire), COVID-19 can reproduce readily and expand its direct physical impact by infecting areas and persons
quickly. Unlike inanimate asbestos, its direct physical impact cannot be encapsulated or contained on a
premises. At the same time, there are no readily available and easy to administer tests to determine if
COVID-19 exists on a property and no vaccine to slow or stop its spread, meaning its physical presence
has a profoundly dangerous impact.
61.
Society essentially argues that because COVID-19 cannot be seen with the naked eye or is
invisible, that it can have no direct physical impact.
62.
COVID-19 physically exists.
63.
COVID-19 has a direct physical impact.
64.
COVID-19 will alter property in appearance, shape, color, or other material dimension.
65.
COVID-19 can be seen with an electron microscope to alter property in appearance, shape,
color, or other material dimension.2

2 https://www.sciencealert.com/this-is-what-the-covid-19-virus-looks-like-under-electron-microscopes
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66.
This is an electron microscope image3 of COVID-19 that depicts its physical existence:

67.
Society
arguments against coverage that COVID-19 causes a direct physical loss or
damage to property (Ex. J - R) rejects the germ theory of disease proven more than a century ago by Louis
Pasteur (1864). The germ theory of disease states that microscopic pathogens, which include viruses, too
small to see without magnification, do physically exist. Due to their physical existence, viral pathogens
can move from the physical environs of property, invade humans and other living hosts, and cause fatal
disease.
68.
Emerging research and recent reports from the CDC indicate that the COVID-19 pathogen
strains physically impact and infect and can stay alive on surfaces for at least 17 days.4 Thus, a core
scientific and epidemiological concept of the Closure Orders (and the loss of business property they

3 https://www.sciencealert.com/this-is-what-the-covid-19-virus-looks-like-under-electron-microscopes
4https://www.cnbc.com/2020/03/23/cdc-coronavirus-survived-in-princess-cruise-cabins-up-to-17-days-after-
passengers-left.html
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mandate) is the necessary assumption that COVID-19 is physically and impactfully present on the surface
of every premises and will be transmitted, resulting in harm and/or death.5 This science is fundamental to
the Closure Orders.6
69.
Government authorities on the federal, state, and local levels, including those in the
jurisdictions in which the Plaintiffs are located, have based their orders on the scientifically supported
presumption that COVID-19 exists at all business premises.7
70.
Government authorities issued Closure Orders that mandated the partial or complete
shutdown of Plaintiffs business operations.
71.
The complete shutdown of non-essential businesses, social distancing rules, mandatory
masks, partial suspensions of other businesses, and many other elements underscore the scientific and
governmental assumption that COVID-19 has a direct physical impact on premises everywhere. While
economically devastating, this precept is a common theme to all of the Closure Orders in the United States.8
The Closure Orders aim to save
9
72.
Society
arguments against coverage that a virus cannot cause direct physical loss or
damage are contrary to well-established and peer-reviewed science developed and accepted over the past
156 years. Society
-edge science about COVID-19 that is saving
lives in America today.

5 Centers for Disease Control and Prevention, Social Distancing, Quarantine and Isolation, Coronavirus Disease 2019
(COVID-19)
(April
4,
2020),
https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/social-
distancing.html; Harlan M. Krumholz, If You Have Coronavirus Symptoms, Assume You Have the Illness, Even if You
Test Negative, The New York Times (April 1, 2020), https://www.nytimes.com/2020/04/01/well/live/coronavirus-
symptoms-tests-false-negative.html.
6 When Could Things Reopen? How each State is Responding to COVID-19, National Public Radio (April 9, 2020),
https://www.npr.org/2020/03/12/815200313/what-governors-are-doing-to-tackle-spreading-coronavirus.
7 COVID-19 Expert Reality Check, John Hopkins Bloomberg School of Public Health (April 6, 2020),
https://www.globalhealthnow.org/2020-02/coronavirus-expert-reality-check.
8 Harvey V. Fineberg, Ten Weeks to Crush the Curve, New England Journal of Medicine (April 1, 2020),
https://www.nejm.org/doi/full/10.1056/NEJMe2007263?query=featured_coronavirus.
9 Kathy Katella, 5 Things Everyone Should Know About the Coronavirus, Yale Medicine (April 13, 2020),
https://www.yalemedicine.org/stories/2019-novel-coronavirus/.
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73.
Society failed to investigate, consider or even attempt to understand the scientific reasoning
and basis of the Closure Orders, with which Plaintiffs were required to comply, leading directly to
Plaintiffs business income and other losses.
74.
In discovery and at trial, Plaintiffs will present scientific evidence to support that COVID-
19 causes a direct physical impact
and to enable a jury to justly and fairly determine the controversies created
by Society
and denials. See Fed. R. Evid. 702; Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993).

Defendant Owes Business Income Loss Coverage
75.
Plaintiffs dining rooms and bars are shuttered due to the Closure Orders. Plaintiffs
suffered a complete loss of and damage to their business premises under the Closure Orders. Plaintiffs
suffered a direct physical loss and damage to their business premises that enabled them to provide their
products and services. Carryout, delivery, and outdoor dining are a mitigation of these losses that has
allowed at best minimal revenue.
76.
Under well-accepted legal and scientific principles Plaintiffs
loss of
property at the described premises, Defendant owes coverage for the resulting
Business Income losses. (Ex. A I, Coverage Form TBP2 (05-15), p 5-6 of 32).
Defendant Owes Civil Authority Coverage
77.
In the alternative, Fed. R. Civ. P. 8(d), the
s
its business purposes. (Ex.
A I, Coverage Form TBP2 (05-15), p 7-8 of 32). Thus, Plaintiffs suffered a complete loss of access to
their business premises (dining rooms and bars) under the Closure Orders.
78.
Because the Closure Orders prohibited access
-
,
and mandated shutdown of parts of other businesses (such as dining rooms and bars)
was prohibited by governmental order encompassing
many locations. (Ex. A I, Coverage Form TBP2 (05-15), p 7-8 of 32).
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79.
Moreover, the Closure Orders were a response to
with dangerous
physical conditions threatening to human life within
of Plaintiffs businesses.
locations are all in the Chicagoland area where there are many hospitals, medical centers and other health
care facilities.
80.
This proximity of Plaintiffs premises to health care facilities (and COVID-19 testing
sites), where persons suffering (and on information and belief, dying) from COVID-19 were located, is just
one among many facts that Society would have discovered had it properly investigated Plaintiffs claims
before making its form denials. For instance, The Boiler Room is 1.6 miles from Norwegian American
Hospital (where they do testing for COVID-19) and 1.8 miles from Presence Saints Mary Elizabeth Medical
Center; Florafauna is 0.6 miles from Northwestern Memorial Hospital and 0.8 miles from Ann & Robert
; The Green Door is less than 1 mile from Winfield Moody Health Center,
Northwestern Memorial Hospital,
; Pennyville is 2.6 miles
from Advocate Lutheran General Hospital and approximately 2 miles from AMITA Health Resurrection
Medical Center; Lotties is approximately 1 mile from the Presence Saints Mary Elizabeth Medical Center;
Frontier is 0.4 miles from Kindred Chicago Lakeshore Hospital; Ina Mae is 0.7 miles from the AMITA
Health Saints Mary and Elizabeth
is less than 3 miles from 7 hospitals/health
care facilities, including 0.4 miles from Alivio Medical center (where they do COVID-19 testing); and
Hendrickx is 0.5 miles from the Northwestern Memorial Hospital.
81.
COVID-19 can also spread on particulate matter in the air. Plaintiffs business premises
are in an urban area or close to an urban area with pollution in the air.10 As a result, COVID-19 was spread
throughout other locations within the area of Plaintiffs premises.11
82.
Therefore, Plaintiffs have sustained business income losses: a) by action of civil authority
prohibiting access to their dining rooms and bars; b) because of dangerous COVID-19 within the area of

10https://www.usatoday.com/story/news/health/2020/04/27/coronavirus-found-air-pollution-particles-preliminary-
study-finds/3033646001/
11https://www.chicagotribune.com/coronavirus/ct-viz-covid-19-cases-by-zip-code-20200407-
aikakoyycje4fbqvferzjffkg4-htmlstory.html

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(if not on Plaintiffs actual premises), and c) as a result of COVID-19 creating a dangerous physical
condition to which civil authority responded, Defendant owes coverage under Civil Authority Coverage.
(Ex. A I, Coverage Form TBP2 (05-15), p 7-8 of 32).

Defendant Owes Contamination Coverage
83.
Because COVID-19 is a dangerous disease that is assumed to be physically and impactfully
present on the surface of every premises
-I, Coverage Form TBP2 (05-15), p 9 of 32).
84.
Moreover,
C
of COVID-19 resulted in the Closure Orders, which is
deemed an action by a governmental authority that prohibited access to the
-I,
Coverage Form TBP2 (05-15), p 8-9 of 32).
85.
Therefore, since Plaintiffs
C
and the
subsequent response by the Closure Orders, Defendant owes coverage under Contamination Coverage. (Ex.
A-I, Coverage Form TBP2 (05-15), p 8-9 of 32).
CLAIMS BY PLAINTIFFS: OVERVIEW
86.
The conduct set forth at length above constitutes Defendant
of the Policy
contracts. Plaintiffs have sustained damages as a result of that breach, in the form of substantial Business
Income losses and damages that continue to mount, including Extra Expense.
87.
By engineering this scheme to avoid its obligations under the Policies, Defendant breached
its contract and exhibited bad faith by putting itself at a tremendous economic advantage over practically
all other American business enterprises who honor their contractual obligations and continue to carry this
nation through the current crisis. Defendant is retaining and lucratively investing claims dollars it would
have to pay out, or premium dollars it would have to rebate, if it chose to follow the law.
88.
Defendant has engaged in consistent misconduct across its claims handling in this time of
crisis.
reflexive denial of claims by Plaintiffs and thousands of other insureds at their time of
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need is arbitrary and unreasonable, inconsistent with the facts and plain language of the Policy, and flies in
the face of well-established science.
89.
denials were driven by a desire to preempt its own financial exposure to the
economic fallout resulting from Closure Orders, rather than to initiate, as Defendant is obligated to do, a
full and fair investigation of the claims and a careful review of the Policies Defendant sold in exchange for
valuable premiums.
90.
Defendant improperly shifted the burden on Plaintiffs to retain counsel, initiate litigation
(such as this), and expend great time, money, and opportunity cost. Taking time away from caring for their
employees and struggling business, Plaintiffs have been forced to come to court to compel Defendant to
honor its contractual obligations.
91.
Plaintiffs file this lawsuit for a declaratory judgment establishing that they are entitled to
receive the benefit of the insurance coverage they purchased, for indemnification of the business losses they
have sustained, for breach of contract, and for bad faith claims handling under 215 ILCS 5/155 which
entitles Plaintiffs
. Alternatively, Plaintiffs, on behalf of themselves and all

prevails on its coverage denials (Count IV, unjust enrichment). This same conduct also violated the Illinois
Consumer Fraud and Deceptive Business Practices Act and the similar laws of other states where Defendant
sells insurance. (Count V). Fed. R Civ. P. 8(d)(2), (3).
COUNT I
(DECLARATORY JUDGMENT)

92.
Plaintiffs incorporates by reference, as if fully set forth herein, the allegations set forth in
paragraphs 1 to 91 above.
93.
The Policies are insurance contracts under which Plaintiffs paid premiums in exchange for
promise to pay losses and damages for claims covered by the Policies, including, but not
limited to, Business Income losses, losses incurred as a result of the Closure Orders that forced Plaintiffs
to suspend their businesses in whole or in part, and losses sustained from Contamination.
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94.
Plaintiffs have complied with all applicable provisions of their Policies, including payment
of the premiums in exchange for coverage under the Policy.
95.
Defendant has arbitrarily, unreasonably, and without justification refused to reimburse
Plaintiffs for any losses and damages incurred in connection with the covered business losses set out at
length above.
96.
An actual case or controversy exists regarding the Plaintiffs rights and D
obligations under the Policies to reimburse Plaintiffs for the full amount of losses and damages incurred by
Plaintiffs.
97.
Pursuant to 28 U.S.C. § 2201, Plaintiffs seek a declaratory judgment from this Court
declaring the following: (a) Plaintiffs losses and damages are insured under their Policies; (b) Defendant
has waived any right it may have had to assert defenses to coverage or otherwise to seek to bar or limit
coverage for those losses and damages by issuing blanket coverage denials without conducting a claim
investigation as required under Illinois law; and (c) Defendant is obligated to pay Plaintiffs for the full
amount of the losses and damages incurred and to be incurred in connection with the covered business and
damages losses up to the applicable limits of coverage.
COUNT II
(BREACH OF CONTRACT)

98.
Plaintiffs incorporate by reference, as if fully set forth herein, the allegations set forth in
paragraphs 1 to 91 above.
99.
The Plaintiffs Policies are insurance contracts under which Plaintiffs paid premiums in
exchange for
promise to pay losses and damages for claims covered by the Policies, including,
but not limited to, Business Income losses and damages, and losses and damages incurred as a result of the
Closure Orders, and losses sustained from Contamination, as set forth at length above.
100.
Plaintiffs have complied with all applicable provisions of their Policies, including payment
of the premiums in exchange for coverage, and yet Defendant has abrogated its insurance coverage
obligations.
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101.
By denying coverage for the business losses and damages incurred by Plaintiffs and set
forth at length above, Defendant has breached its coverage obligations under the Policies.
102.
ir Policies, Plaintiffs have sustained substantial
damages for which Defendant is liable, in an amount to be established at trial.
COUNT III
(STATUTORY PENALTY FOR BAD FAITH DENIAL OF INSURANCE)

103.
Plaintiffs incorporate by reference, as if fully set forth herein, the allegations set forth in
paragraphs 1 to 91 above.
104.
Upon receipt of Plaintiffs claims and (upon information and belief) upon receipt of each
and every claim related to the Closure Orders, Defendants denied the claims, without conducting any
under
Illinois law. See 215 ILCS 5/154.6.
105.
To make matters worse, based on information and belief, Defendant directed its insurance
agents to send sham claims communications stating that Plaintiffs claims were not covered. Defendant
formulated and executed on a plan to discourage policyholders such as Plaintiffs from submitting claim
notifications in order
and damages, in
violation of Illinois law.
106.
On information and belief, Defendant has also propagated rumor and innuendo that a
purported government bailout of business income claims may occur, further to discourage claims.
107.

egarded or
ignored facts underlying the claims, ignored the law, and ignored the science designed to save human life.
108.
namely
: (1) refusal to pay Plaintiffs claims without conducting reasonable investigations based on all
available information; and (2) failure to provide reasonable and accurate explanations of the bases in its
denials. See 215 ILCS 5/154.6 (h), (n).
109.
Defendant has neither offered any justifiable reason for its denials, nor raised any bona fide
disputes as to the whether the claims were covered.
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110.
Therefore, pursuant to 215 ILCS 5/155, Plaintiffs request that, in addition to entering a
judgment in favor of Plaintiffs and against Defendant for the amount owed under their Policies at the time
of judgment, the Court enter a judgment in favor of Plaintiffs for an amount equal to the greater of: (1) 60%
of the amount which the trier of fact finds that each Plaintiff is entitled to recover under their Policy,
exclusive of costs; and (2) $540,000. See 215 ILCS 5/155.
111.
Plaintiffs further request that the Court enter a judgment in favor of Plaintiffs and against
coverage action against Defendant, which amount will be proved at or after trial, pursuant to 215 ILCS
5/155.
PRAYER FOR RELIEF ON COUNTS I - III

WHEREFORE, Plaintiffs pray that this Honorable Court enter an order and judgment in their
favor and against Defendant Society Insurance as follows:
(a) Enter a declaratory judgment on Count I of the Complaint in favor of each Plaintiff and against
Defendant declaring that: losses by Plaintiffs incurred in connection with the Closure Orders
and the necessary interruption of its businesses are insured losses and damages under their
respective Policies; that Defendant has waived any right it may have had to assert defenses to
coverage or otherwise seek to bar or limit coverage for the losses and damages of Plaintiffs by
issuing blanket coverage denials without conducting a claim investigation as required under
Illinois law; and that Defendant is obligated to pay Plaintiffs for the full amount of the losses
and damages incurred and to be incurred in connection with the covered business losses and
damages related to the Closure Orders;
(b) Enter a judgment on Count II of the Complaint in favor of each Plaintiff and against Defendant
and award damages for breach of contract in an amount to be proven at trial;
(c) Enter a judgment on Count III of the Complaint in favor of each Plaintiff and against Defendant
in the amount equal to the greater of (1) 60% of the amount which the trier of fact finds that
Plaintiff is entitled to recover under the Policy, exclusive of costs; and (2) $540,000;
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(d) Enter a judgment in favor of each Plaintiff and against Defendant in an amount equal to all
Defendant pursuant to 215 ILCS 5/155, such amount to be established at the conclusion of this
action;
(e) Award to each Plaintiff and against Defendant prejudgment interest, to be calculated according
to law, to compensate it f
pay Plaintiffs what it is rightfully owed under their respective Policies; and,
(f) Award Plaintiffs such other, further, and additional relief as this Court deems just and
appropriate.

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COUNT IV (in the alternative)

CLASS ACTION

UNJUST ENRICHMENT BY COLLECTION / RETENTION OF PREMIUM

112.
Plaintiffs incorporate by reference, as if fully set forth herein, the allegations set forth in
paragraphs 1 to 91 above.
113.
Plaintiffs for themselves, and on behalf of all others similarly situated, allege this class
action claim against Defendant in the alternative (see Fed. R. Civ. P. 8(d)(2), (3)) and as follows:
114.
This is a class action count brought in diversity between the Plaintiff Class and Defendant,
wherein jurisdiction lies under 28 U.S.C. § 1332.
115.
If Defendant
for business interruption coverage
are upheld, then Defendant has been unjustly enriched in the amount of excess premium for business
interruption coverage they have charged
operationally impaired as the result of the Closure Orders. These premiums should be disgorged to all
.
116.
Defendant has
respective Policies
on the basis of their insured properties operating as fully functional business establishments. Accordingly,
the insured risks included the prospect of having to pay claims for lost business income at levels
commensurate with fully operational businesses, and for other risks (such as on liability insurance claims
among others) commensurate with fully operational businesses.
117.
properties have been lost, damaged, shut down or
otherwise operationally impaired by the Shutdown Orders, Defendant risk of having to pay other claims
-
business interruption claims and others, has been reduced in many
instances to zero and in all instances by substantial monetary amounts. Each of the Policies contain
provisions making Defendant liable to pay business interruption loss only to the extent it would not have
been incurred anyway, such as the provision taken below from
Policies:
(c) Business Income means the: (i) Net Income (Net Profit or Loss before income taxes)
that would have been earned or incurred if no physical loss or damage had occurred . . . .
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(Ex. A I, Coverage Form TBP2 (05-15), p 6 of 32).

118.
Defendant would decline to pay any business interruption loss that would have been incurred anyway as
the result of the Closure Orders.
119.
Defendant knows all this, yet they have intentionally continued to retain, charge and collect
and Plaintiffs and the class have continued to pay including on renewals
premiums for
which Defendant, according to their own self-serving justifications for denying coverage, assumed no
commensurate risk.
120.
Defendant has
expense, and should be
required to disgorge to Plaintiffs and each Class member the full amounts of excess premium for business
interruption coverage and other coverages they have unlawfully charged, collected, and retained, as equity
and good conscience require. Defendant misconduct in this respect has been willful, wanton, and in bad
faith.
121.
This action may properly be maintained as a class action pursuant to the provisions of Fed.
R. Civ. P. 23(b)(3). Plaintiffs bring this action on behalf of themselves and on behalf of a Nationwide Class
(as defined herein) of similarly situated businesses that have been irreparably harmed by Defendant, further
defined as follows:
122.
This is a Nationwide Class of similarly situated persons defined as follows: all businesses
in the United States who are insureds of Defendant under commercial insurance policies and who have
experienced a complete or partial shutdown of their business operations as a result of a Closure Order issued
by a State or local governmental authority on or after March 1, 2020, to the present.
123.
Excluded from this Class are: (1) Defendant, Defendant s agents, subsidiaries, parents,
successors, predecessors, and any entity in which Defendant or its parents have a controlling interest, and
those e
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exclusion from the Class; (4) any person who had their claims in this matter adjudicated and/or otherwise
released; and, (5) the legal representatives, successors, and assigns of any such excluded person.
124.
This action is brought as a class action and may properly be so maintained pursuant to the
provisions of Federal Rule of Civil Procedure 23(b)(3). Plaintiffs reserve the right to modify the Nationwide
Class and the class period pursuant to discovery that is conducted hereafter.
125.
Plaintiffs and all members of the Nationwide Class have been harmed by Defendant in a
singular and common manner
insurance policies and business interruption coverage during the current crisis, all to the unjust enrichment
of Defendant.
126.
Numerosity: On information and belief, the Nationwide Class is so numerous that joinder
of all individual plaintiffs is not practicable. The exact number of members of the Class is unknown and
can only be ascertained through discovery because that information is exclusively within the possession,
custody, and control of Defendant. However, on information and belief, Plaintiffs estimate that there are
many thousands of potential Class members because Defendant sells commercial insurance in a number of
states spanning the United States. Defendant is registered with the Illinois Department of Insurance and
markets its policies to millions of Illinoisans and Illinois businesses, as well as in other states. The members
of the Class can be identified easily through records maintained by Defendant and/or by other means.
127.
Commonality and Predominance: There are questions of fact and law common to the
Plaintiffs and the Class members which predominate over any questions relating to individual class
members. Some of the predominant, common questions include but are not necessarily limited to: 1)
n
shut down or operationally impaired as the result of Closure Orders; 2) whether Defendant has priced and
of having to pay other commercial claims including business
interruption claims has been reduced in many instances to zero and in all instances by substantial monetary
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amounts; 4) whether the Policies contain provisions making Defendant liable to pay business interruption
loss and other claims only to the extent it would not have been incurred anyway; 5) whether Defendant has,
knowing all this, continued to retain,
according to their own self-serving justifications for denying coverage, assumed no commensurate risk;
and 6) whether Defendant has, accordingly, been unjustly enriched.
128.
Adequacy of Representation: Plaintiffs will fairly and adequately protect the interests of
the Class members in that Plaintiffs claims are typical of the Class and Plaintiffs do not have any interests
which are adverse to the other class members. Plaintiffs claims are based on similar facts and the same
legal theories as those of the Class members. Plaintiffs have retained competent counsel, experienced in
handling class actions, complex business transactions and litigating complex commercial disputes.
Plaintiffs intend to prosecute this action vigorously. Neither Plaintiffs nor counsel have any interests which
might cause them to not vigorously prosecute this action. Plaintiffs and their counsel will fairly and
adequately protect the interests of the members of the Nationwide Class.
129.
Typicality: Plaintiffs claims are typical of the claims of the members of the Nationwide
Class because Plaintiffs all paid premium for
business
interruption insurance and were shut down by Closure Orders, yet were never refunded or rebated their
premium by Defendant. Plaintiffs and all members of the Nationwide Class have thus similarly suffered

130.
Appropriateness: Class action treatment is superior to the alternatives, if any, for the fair
and efficient adjudication of the controversy described herein because it permits a large number of injured
persons to prosecute their common claims in a single forum simultaneously, efficiently, and without
duplication of evidence and effort. Class treatment is especially appropriate for the current controversy
because it is the only practical means for Class members to receive redress given that the individual claims
for refund of premium are likely not economically viable to pursue on an individual basis (as contrasted to
their individual and sizeable business interruption claims, which Defendant, of course, has denied). The
premium rebate damages suffered by each individual class member likely are disproportionate to the burden
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and practices. The disposition of the claims in a class action will provide a substantial benefit to the parties
and the Court in avoiding a multiplicity of identical suits. A class action provides the benefits of fewer
management difficulties, single adjudication, economy of scale and comprehensive supervision by a single
court, and would result in reduced time, effort, and expense for all parties and the Court, and ultimately
ensure the uniformity of decisions.
COUNT V (in the alternative)
CLASS ACTION

ILLINOIS CONSUMER FRAUD AND DECEPTIVE BUSINESS PRACTICES ACT

131.
Plaintiffs incorporate by reference, as if fully set forth herein, the allegations set forth in
paragraphs 1 to 91, and 112 to 130, above.
132.
Plaintiffs for themselves, and on behalf of all others similarly situated, allege this class
action claim against Defendant in the alternative (see Fed. R. Civ. P. 8(d)(2), (3)) and as follows:
133.
This is a class action count brought in diversity between the Plaintiff Class and Defendant,
wherein jurisdiction lies under 28 U.S.C. § 1332. Plaintiffs incorporate by reference, as if fully set forth
herein, the class action allegations set forth in Count IV, above.
134.
The Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/1 et seq
other states where Defendant sells insurance, provide protection to persons
including Plaintiffs and the members of the Nationwide Class by mandating fair competition in commercial
markets for goods and services.
135.
ICFA and the similar laws of other states where Defendant sells insurance prohibit any
deceptive, unlawful, unfair or fraudulent business acts or practices using deception, fraud, false pretenses,
false advertising, misrepresentation, or the concealment, suppression, or omission of any material fact, or
the employment of use of any deceptive practice described as a deceptive trade practice.
136.
Defendant does business.
Case: 1:20-cv-05483 Document #: 1 Filed: 09/17/20 Page 32 of 35 PageID #:32

137.
Plaintiffs and each member of the Nationwide Class are persons protected by ICFA and
similar laws of other states where Defendant does business.
138.
constitutes an activity covered by ICFA and similar laws of other states where Defendant does business.
139.
including (but not limited to) upon renewal of policies, under the circumstances pled herein wherein the
Defendant did not take on commensurate risk supporting those premiums, from businesses affected by
Closure Orders, are deceptive and unfair acts or practices prohibited by ICFA and the similar laws of other
states where Defendant does business.
140.
Defendant violated ICFA and the similar laws of other states where Defendant does
business when it misrepresented and omitted facts regarding the premium charged (at a full and
undiscounted / unrebated rate) and the commensurate risk actually taken on and the coverage actually
afforded (including but not limited to that Defendant would not pay for business interruption losses for
businesses whose income was already interrupted or reduced by Closure Orders).
141.

142.
Plaintiffs and members of the Nation
misrepresentations and omissions when they purchased, paid on, continued and renewed their Policies with
Defendant.
143.
Plaintiff and the Nationwide Class acting reasonably under the circumstances, and thus constitute unfair
and deceptive practices in violation of ICFA and the similar laws of other states where Defendant does
business.
144.
ation of ICFA and the similar laws of
other states where Defendant does business, Plaintiffs and the members of the Nationwide Class have
suffered harm in the form of excess premiums paid in exchange for their Policies, because they paid more
Case: 1:20-cv-05483 Document #: 1 Filed: 09/17/20 Page 33 of 35 PageID #:33

premium than what they otherwise would have paid had they known the truth
that Defendant was not
assuming risk commensurate with those premiums charged.
145.
Defenda
unethical, oppressive and unscrupulous, and cause substantial injury to Plaintiffs and the members of the
Nationwide Class, who were protected by ICFA and the similar laws of other states where Defendant does
business.
PRAYER FOR RELIEF ON COUNTS IV AND V (in the alternative)

WHEREFORE, Plaintiffs, individually and on behalf of all persons similarly situated, pray that
this Honorable Court enter an order and judgment in their favor and against Defendant Society Insurance
as follows:
(a) Finding that this action satisfies the prerequisites for maintenance of a class action set forth in
Fed. R. Civ. P. 23(b)(3), and certifying the Class as defined above;
(b) Designating Plaintiffs as the representatives of the Class and the undersigned counsel as Class
Counsel;
(c) Entering judgment in favor of Plaintiffs and the Class and against Defendant on the unjust
enrichment claim (Count IV) set forth above in an amount to be proven at trial;
(d) Entering judgment in favor of Plaintiffs and the Class and against Defendant on the claim for
violation of ICFA and the similar laws of other states where Defendant does business (Count
V), including compensatory damages and punitive damages as permitted by law and in an
amount to be proven at trial;
(e) Awarding Plaintiffs and the Class pre-judgment interest, their court costs, expenses, and

(f) Awarding Plaintiff any such other and further relief that this Court deems necessary and just.

Case: 1:20-cv-05483 Document #: 1 Filed: 09/17/20 Page 34 of 35 PageID #:34

JURY DEMAND
Plaintiff hereby demands trial by jury on all issues so triable.
Dated: September 16, 2020
Respectfully Submitted,

FUKSA KHORSHID, LLC

/s/ William E. Meyer, Jr.

William E. Meyer, Jr.
Attorneys for Plaintiffs and for the
Class
FUKSA KHORSHID, LLC
William E. Meyer, Jr. (ARDC No. 6207345) of counsel
Lucas M. Fuksa (ARDC No. 6277498)
Lema A. Khorshid (ARDC No. 6283237)
Vincent P. Formica (ARDC No. 6319168)
200 W. Superior, Suite 410
Chicago, IL 60654
T: 312.266.2221
F: 312.266.2224
william@fklawfirm.com
lucas@fklawfirm.com
lema@fklawfirm.com
vince@fklawfirm.com

Case: 1:20-cv-05483 Document #: 1 Filed: 09/17/20 Page 35 of 35 PageID #:35

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Complaint (Exhibit 1) — Twenty Two Ten Ltd. et al. v. Society Insurance

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