Plaintiffs' joint response supporting transfer (JDS 1455) — In re Society Insurance COVID-19 BI Litigation

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BEFORE THE UNITED STATES JUDICIAL PANEL  
ON MULTIDISTRICT LITIGATION 
 
 
IN RE SOCIETY INSURANCE COMPANY  
COVID-19 BUSINESS INTERRUPTION 
PROTECTION INSURANCE LITIGATION 
 
 
MDL No. 2964 
  
 
 
PLAINTIFFS’ JOINT RESPONSE TO  
THE PANEL’S RULE TO SHOW CAUSE ORDER AND IN  
SUPPORT OF TRANSFER OF THE SOCIETY INSURANCE  
ACTIONS TO THE NORTHERN DISTRICT OF ILLINOIS  
 
JDS 1455, Inc., the plaintiff in JDS 1455, Inc. v. Society Insurance, No. 20-cv-02546 (N.D. 
Ill.); 351 Kingsbury Corner, LLC, the plaintiff in 351 Kingsbury Corner, LLC v. Society Insurance, 
No. 20-cv-02589; and Roscoe Same LLC, Big & Little’s Lakeview LLC, and Big & Little’s 
Empire LLC, the plaintiffs in Roscoe Same LLC, et al. v. Society Insurance, No. 20:cv-02641 
(N.D. Ill.) (collectively, “Respondents”); respectfully submit this joint response to the Panel’s 
August 12, 2020 Order to Show Cause (Dkt. #3).  
INTRODUCTION 
The creation of a Society Insurance Company COVID-19 Business Interruption Protection 
Insurance MDL is the appropriate vehicle to streamline discovery, ensure consistent pretrial 
rulings, and maximize both judicial efficiency and the convenience of the parties and witnesses. 
An MDL will address the positions and course of conduct of one defendant, regarding the 
provisions and application of standard policy language. It will ensure uniform decisions regarding 
the particular policy language, and eliminate duplication of the identical or nearly identical 
discovery in numerous actions against the same defendant. The Northern District of Illinois is the 
most appropriate forum for the Society Insurance Company COVID-19 Business Interruption 
Protection Insurance MDL because Chicago is the “center of gravity” of the litigation. 
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ARGUMENT 
I. 
Transfer of the Society Insurance cases to a single venue for pretrial proceedings will 
serve the interests of justice and judicial efficiency. 
Transfer of actions to a single district for coordinated or consolidated pretrial proceedings 
is appropriate if: (i) the actions, pending in different districts, involve one or more common issues 
of fact; and (ii) the transfer will promote the just and efficient conduct of the actions, as well as 
the convenience of the parties and witnesses. 28 U.S.C. § 1407(a). These elements are met here. 
A. 
The Society Insurance actions involve common factual and legal issues. 
The injuries to the plaintiffs in these actions arise out of virtually identical factual 
circumstances. They have been forced to suspend their businesses due to the physical presence of 
COVID-19 on property and the resulting government closure orders. They each purchased a 
similar standard form Businessowners Policy issued by defendant Society Insurance. Even though 
this is an “all risk” policy, in which all losses are covered unless expressly excluded, Society 
Insurance has categorically denied coverage to all plaintiffs, and even taken actions to 
preemptively deter policyholders from filing claims, asserting that the presence of COVID-19 on 
property does not constitute property damage. 
Hence, the common issues for determination include, inter alia: 
1. Whether COVID-19 contamination of premises and property constitutes “direct 
physical loss of or damage to” plaintiffs’ property;  
2. Whether the suspension of plaintiffs’ businesses was “caused by a direct 
physical loss of or damage to” their property;  
3. Whether any of the losses incurred by plaintiffs constitute “Extra Expense” as 
defined in the policy;  
4. Whether any of the losses incurred by plaintiffs fall within the Civil Authority 
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coverage, triggered by “action of civil authority that prohibits access to the 
described premises”;  
5. Whether the omission of the industry standard virus exclusion establishes that 
virus-related losses are covered by the policy; and 
6. Whether Society Insurance’s course of conduct, including its precipitous 
actions to deny coverage on a blanket basis, including efforts to preempt even 
the filing of claims by policyholders relating to COVID-19, without first 
conducting the reasonable coverage investigation required by law, constitutes 
bad faith.  
These are the classic types of common questions that are found to support transfer to an 
MDL proceeding. See, e.g., Medvene v. Conseco Life Ins. Co. (In re Conseco Life Ins. Co. Cost of 
Ins. Litig.), 323 F. Supp. 2d 1381, 1383 (J.P.M.L. 2004) (transferring to MDL actions alleging 
breach of insurance policies by a single defendant insurer). Indeed, the commonality of the issues 
is conclusively demonstrated by the fact that Society Insurance has been filing essentially identical 
motions for summary judgment in these actions.1 
B. 
Transfer will promote the just and efficient conduct of the actions, and 
convenience the parties and witnesses. 
Transfer to an MDL proceeding will ensure that the provisions of the Society Insurance 
Businessowners Policy will be interpreted consistently in adjudicating the claims of all 
policyholders. Duplicative written discovery will be eliminated by coordination of document 
 
1 See, e.g., JDS 1455, Inc. v. Society Insurance, No. 20-cv-02546 (N.D. Ill.), Dkt. #17-19; 351 
Kingsbury Corner, LLC v. Society Ins., No. 20-cv-02589 (N.D. Ill.), Dkt. #29-31; Big Onion 
Tavern Group, LLC, et al. v. Society Ins., No. 20-cv-02005 (N.D. Ill.), Dkt. #112-114; Billy Goat 
Tavern I, Inc., et al.. v. Society Ins., No. 20-cv-02068 (N.D. Ill.), Dkt. #23-25; Biscuit Café, Inc., 
et al. v. Society Ins., No. 20-cv-02514 (N.D. Ill.), Dkt. #24-26; Dunlays Mgmt. Servs., LLC, et al. 
v. Society Ins., No. 20-cv-02524 (N.D. Ill.), Dkt. #19-21. 
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requests and production. Multiple depositions of Society Insurance witnesses—who are likely to 
be the same in each of these actions—will also be avoided. 
An additional important consideration is that several of the cases to be transferred are 
putative class actions. Centralization via MDL is separately justified by the need to coordinate and 
harmonize the class actions, and ensure consistent rulings regarding class certification. See In re 
Am. Airlines, Inc., 342 F. Supp. 2d 1355, 1356 (J.P.M.L. 2004) (“Centralization under Section 
1407 is necessary in order to … prevent inconsistent rulings on pretrial motions (especially with 
respect to questions of class certification)….”). 
An MDL proceeding involving only defendant Society Insurance also serves to address the 
Panel’s justified concern that an industry-wide MDL would have forced evaluation of all variations 
of policy language under the laws of all 50 states. Not only is there a standard Businessowners 
Policy form at issue, but Society Insurance is a regional insurer, doing business in only six states: 
Illinois, 
Indiana, 
Iowa, 
Minnesota, 
Tennessee, 
and 
Wisconsin. 
See 
https://www.societyinsurance.com/faq/#275 (visited August 24, 2020).2 
II. 
The Northern District of Illinois is the most appropriate forum for the Society 
Insurance cases. 
A. 
Chicago is the “Center of Gravity.”  
Chicago sits at the center of the six-state region serviced by Society Insurance. The third 
largest city in the country, Chicago also represents, by far, the most populous and commercially 
intense metropolitan area within Society Insurance’s operating area. Hence, it is not surprising that 
the vast majority of COVID-19 coverage actions against Society Insurance have been filed in the 
 
2 That said, the central issue here—Society Insurance’s blanket denial of coverage—is a garden-
variety breach of insurance contract. The law applicable to the interpretation of the 
Businessowners Policy is not likely to materially differ among these states.  
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Northern District of Illinois. 
Of the 21 actions subject to this Panel’s Order to Show Cause, 17 have been filed in the 
Northern District of Illinois. (Dkt. #3, Sched. A). This weighs heavily in favor of the Northern 
District of Illinois as the most appropriate forum for coordinated or consolidated pretrial 
proceedings in the Society Insurance cases. See In re Fisher-Price Rock ‘N Play Sleeper Mkt., 
Sales Practices, and Prod. Liab. Litig., 412 F. Supp. 3d 1357, 1360 (J.P.M.L. 2019) (“Two thirds 
of the related actions (10 of 15) were filed in this district ….”); In re General Aircraft Corp. 
Antitrust/Tort Claims Act Litig., 449 F. Supp. 604, 606 (J.P.M.L. 1978) (“That district is the choice 
of the majority of the parties….”); In re Folding Carton Antitrust Litig., 415 F. Supp. 384, 386 
(J.P.M.L. 1976) (“The Northern District of Illinois is clearly the most appropriate transferee forum 
for this litigation. Fourteen of the 23 private actions before us are already pending there.”). 
Even during the limited in-person courtroom function during COVID-19, and certainly 
when these restrictions are removed, Chicago’s central location and easy accessibility best serves 
the convenience of the parties and witnesses. See In re Ameriquest Mortg. Co. Mortg. Lending 
Practices Litig., 408 F. Supp. 2d 1354, 1355 (J.P.M.L. 2005) (describing the Northern District of 
Illinois as a “geographically central district [that] will be a convenient location”); In re Folding 
Carton Antitrust Litig., 415 F. Supp. at 386 (“Chicago’s central location is another reason 
commending transfer to the Northern District of Illinois….”). Not only are the vast majority of 
existing parties located in the Chicago area, but Chicago is a major transportation hub. It is a short 
drive from much of Wisconsin and Indiana, and direct flights are readily available from the entire 
region in which Society Insurance does business. No other locale within that region is comparable. 
B. 
The actions should be assigned to Judge Edmond E. Chang, who presides over 
the first-filed case against Society Insurance in the Northern District of Illinois. 
The actions pending in the Northern District of Illinois are currently assigned to a variety 
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of judges. A motion is currently pending to reassign those actions to Judge Edmond E. Chang, 
who is already presiding over two of them. Big Onion Tavern Group, LLC, et al. v. Society Ins., 
Inc., No. 20-cv-02005 (N.D. Ill.), Dkt. #79. Pursuant to the Northern District of Illinois’ Local 
Rule 40.4, related cases pending in the district can be reassigned to the judge presiding over the 
lowest-numbered action if it is practical to do so and substantial efficiencies would result. See id. 
at 7.  
While this local district rule is certainly not binding on this Panel, assignment of the Society 
Insurance cases to Judge Chang is an appropriate result. Judge Chang has been on the bench since 
2010. He is experienced in presiding over complex matters, including those with multiple plaintiffs 
and multiple class actions. As one example, he recently presided over Smith, et al. v. ComplyRight, 
Inc., No. 18-cv-04990, a matter involving multiple class actions brought by multiple plaintiffs, 
arising out of a data breach. Notwithstanding the complexity of the ComplyRight litigation, Judge 
Chang kept a well-organized docket, and administered the matter to a negotiated resolution with 
certification of a settlement class. Judge Chang is not currently presiding over any MDLs nor, to 
the best of Respondents’ knowledge, has he ever done so—a factor that weighs in favor of his 
assignment. See In re Fisher-Price, 412 F. Supp. 3d at 1360 (“Centralization in the Western 
District of New York therefore allows us to assign this litigation to an able jurist who has not yet 
had the opportunity to preside over an MDL.”). 
CONCLUSION 
Respondents respectfully recommend that the Panel transfer the Society Insurance 
COVID-19 business interruption actions to the Northern District of Illinois, and to the docket of 
Judge Edmond E. Chang, for consolidated or coordinated pretrial proceedings. 
 
 
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Dated: August 26, 2020 
 
 
 
 
/s/Joseph M. Vanek 
jvanek@sperling-law.com 
Eamon P. Kelly 
ekelly@sperling-law.com 
John P. Bjork 
jbjork@sperling-law.com 
SPERLING & SLATER, P.C. 
55 W. Monroe Street, Suite 3500 
Chicago, IL 60603 
Telephone: (312) 641-3200 
 
David S. Klevatt, Esq. 
dklevatt@InsuranceLawyer .com 
Timothy M. Howe, Esq. 
tim@chicagolaw.biz 
KLEVATT & ASSOCIATES, LLC 
33 North LaSalle Street, Suite 2100 
Chicago, Illinois 60602-2615 
(312) 782-9090 
 
Counsel for JDS 1455, Inc. 
 
/s/ Ben Barnow 
Ben Barnow 
Erich. P. Schork 
Anthony L. Parkhill 
Barnow and Associates, P.C. 
205 W. Randolph, Ste. 1630 
Chicago, IL 60606 
Tel:  (312) 621-2000 
b.barnow@barnowlaw.com 
e.schork@barnowlaw.com 
aparkhill@barnowlaw.com 
 
Timothy G. Blood 
Blood Hurst & O’Reardon, LLP 
501 West Broadway, Suite 1490 
San Diego, CA 92101 
Tel: (619) 338-1100 
tblood@bholaw.com 
 
Counsel for Roscoe Same LLC, Big 
& Little’s Lakeview LLC, and Big & 
Little’s Empire, LLC 
 
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BEFORE THE UNITED STATES JUDICIAL PANEL  
ON MULTIDISTRICT LITIGATION 
 
 
In re SOCIETY INSURANCE COMPANY  
COVID-19 BUSINESS INTERRUPTION 
PROTECTION INSURANCE LITIGATION 
 
 
MDL No. 2964 
  
 
 
PROOF OF SERVICE 
In compliance with Rule 4.1(a) of the Rules of Procedure for the United States Judicial 
Panel on Multidistrict Litigation, I hereby certify that Plaintiffs JDS 1455, Inc., d/b/a West on 
North, Roscoe Same LLC, Big & Little’s Lakeview LLC, and Big & Little’s Empire, LLC’s Joint 
Response to the Panel’s Rule to Show Cause Order and In Support of Transfer of the Society Insurance 
Actions to the Northern District of Illinois and this Proof of Service were filed with the Court’s 
CM/ECF system on August 26, 2020, which sends a service copy to all registered parties in the 
action at their associated email addresses. 
Dated: August 26, 2020 
 
 
 
 
/s/Joseph M. Vanek 
jvanek@sperling-law.com 
Eamon P. Kelly 
ekelly@sperling-law.com 
John P. Bjork 
jbjork@sperling-law.com 
SPERLING & SLATER, P.C. 
55 W. Monroe Street, Suite 3500 
Chicago, IL 60603 
Telephone: (312) 641-3200 
 
Counsel for JDS 1455, Inc., 
d/b/a West on North 
 
 
 
 
Case MDL No. 2964   Document 34   Filed 08/26/20   Page 8 of 8

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