Plaintiffs' reply to responses to OSC (Rising Dough) — 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 
) 
MDL No. 2964 
BUSINESS INTERRUPTION PROTECTION 
 
 
) 
INSURANCE LITIGATION 
 
 
 
 
) 
 
 
PLAINTIFFS’ REPLY TO RESPONSES TO ORDER TO SHOW CAUSE 
 
Pursuant to 28 U.S.C. § 1407 and Panel Rule 8.1(d), Plaintiffs Rising Dough, Inc. (d/b/a 
Madison Sourdough), Willy McCoys of Albertville LLC, Willy McCoys of Andover LLC, Willy 
McCoys of Chaska LLC, Willy McCoys of Shakopee LLC, Whiskey Jacks of Ramsey LLC 
(d/b/a Willy McCoys Ramsey), Green Hills Grille LLC, Cash-Mckeown Futures LLC, and 
Wiseguys Pizzeria & Pub LLC1 (“Plaintiffs”) respectfully submit this consolidated reply to the 
responses to this Panel’s August 12, 2020 Order to Show Cause, ECF No. 3, in support of the 
transfer of these actions pursuant to 28 U.S.C. § 1407 for coordinated or consolidated pretrial 
proceedings.  
I. 
SECTION 1407 CENTRALIZATION IS APPROPRIATE. 
Society Insurance Company’s (“Society”) opposition to centralization and the creation of 
a Society-specific MDL does little more than mirror its opposition to the industry-wide MDL 
that was proposed in MDL No. 2942.  Compare ECF No. 32 with MDL No. 2942, ECF No. 371.  
Focusing on what it perceives as skepticism of an industry-wide MDL reflected at oral argument 
for MDL No. 2942, Society ignores the substance of the Panel’s decision in MDL No. 2942 that 
led to the issuance of the Order to Show Cause being addressed here.  See Order Denying 
Transfer, MDL No. 2942, ECF No. 772; see also Society’s Resp., ECF No. 32, at 1-2.  
                                                     
1 Plaintiff Wiseguys Pizzeria & Pub LLC further joins in the response filed by the other Plaintiffs 
at ECF No. 42.   
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In fact, in its Order Denying Transfer, the Panel found that that “the arguments for 
insurer-specific MDLs are more persuasive” than those for an industry-wide MDL and, 
referencing the potential of an insurer-specific MDL, noted:   
Such an MDL would be limited to a single insurer or group of related insurers and 
thus would not entail the managerial problems of an industry-wide MDL 
involving more than a hundred insurers. The actions are more likely to involve 
insurance policies utilizing the same language, endorsements, and exclusions. 
Thus, there is a significant possibility that the actions will share common 
discovery and pretrial motion practice. Moreover, centralization of these actions 
could eliminate inconsistent pretrial rulings with respect to the overlapping 
nationwide class claims that most of the insurers face. An insurer-specific MDL 
therefore could achieve the convenience and efficiency benefits envisioned by 
Section 1407. 
 
MDL No. 2942, ECF No. 772, at 3-4.  Believing, based upon the submissions in MDL No. 2942, 
that Society may very well be one of the defendants for whom an insurer-specific MDL was 
warranted, the Panel directed the Clerk of the Panel to issue an order to show cause as to why a 
Society-specific MDL should not be created. Id. at 4.  Indeed, the convenience and efficiencies 
contemplated by Section 1407 can be obtained in a Society-specific MDL. 
Society’s rebuttal boils down to the basic themes that most defendant-insurers have 
echoed: there are only common questions of law, not fact; centralization will be neither efficient 
nor convenient; and multiple classes do not warrant centralization.  See ECF No. 32.  However, 
even Society concedes that there are at least 21 cases (now approximately 24)2 that are currently 
pending in federal courts.  See ECF No. 32 at 1.  And, Society has done little to address the 
overlapping factual, legal and class issues that permeate each of these cases that could benefit 
from centralization.  As set forth below, these 21 cases do share many common questions of fact, 
                                                     
2 Shortly before the time of filing, this MDL’s docket included 24 actions.  These and any subsequent tag-
along actions are referred to herein as the “Related Actions.” 
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common questions of law, and overlapping classes whose resolution would benefit greatly by 
centralization. 
A. 
The Related Actions Share Many Common Questions of Fact. 
As noted in Plaintiffs’ Response to the Order to Show Cause, ECF No. 42, at 4-8, there 
are numerous factual issues that are common to the Related Actions including materially 
identical policy language, endorsements, and exclusions; materially identical government 
shutdown orders; and materially identical claims.  Society tries to minimize these differences by 
relying upon minor distinctions such as whether a given shutdown order required complete 
closure or only impaired operations or by claiming that various policyholders may have different 
positions as to whether the virus was present at the property.  See ECF No. 32 at 7.  However, 
“Section 1407 does not require a complete identity or even majority of common factual issues as 
a prerequisite to transfer.” See, e.g., In re Ins. Brokerage Antitrust Litig., 360 F. Supp. 2d 1371, 
1372 (J.P.M.L. 2005).  
Furthermore, Society’s position misses the point.  The similarity in policy language, 
endorsement and exclusions is what will drive the common discovery. Indeed, the meaning of 
the terms in the policy will be subject to common discovery and the key witnesses will be 
similar, if not identical.  In addition, as noted previously by Plaintiffs and highlighted by 
additional respondents, Society relies on standardized forms prepared by the Insurance Services 
Office, known as “ISO.” See Hartford Fire Ins. Co. v. California, 509 U.S. 764, 772 (1993) 
(recognizing that “most primary insurers” in the United States use insurance forms from ISO, 
“an association of approximately 1,400 domestic property and casualty insurers” as the basis for 
their policies); see also ECF No. 43 at 4-6 (explaining ISO and Society’s use of ISO 
standardized forms).  Because of the uniformity in the policy language, even though the actions 
here involve different states or certain plaintiffs may have different exclusions, all of the claims 
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arise from a common foundation in the form of ISO’s policies and/or Society’s standard 
modifications to those policies.  The interpretation of the standardized forms and the discovery 
needed to decide those questions will be common across cases and centralization would promote 
uniformity in the answers to those questions. 
In addition, Society skirts over the issue of the common evidence on which Plaintiffs will 
necessarily rely to show the virus caused physical loss or damage to the property or whether the 
virus is present at the property.  Unlike a typical insurance case, the cause of the damage here is 
a virus that cannot be seen or otherwise detected through normal means.  Thus, the question of 
its presence cannot be resolved through testimony from typical fact witnesses such as the 
individual plaintiffs and discovery about their individual experiences.  Rather, as Plaintiffs 
discussed in their Response, the presence of the virus will likely be established through 
epidemiological modeling, see ECF No. 42 at 6-7, which would be most efficiently and cost-
effectively done in a coordinated fashion.   
Likewise, the impact of the various government orders at issue should also be adjudicated 
in a coordinated proceeding.  While not identical, these orders involve considerably less 
variation than their sheer number might imply.  By far the most common order, for instance, was 
that Plaintiffs’ businesses simply shut down.  Although the plaintiffs may have been subject to 
stay-at-home orders in different states, the import and effect of these orders was identical – the 
policyholders were required to close their businesses either fully, or in some cases, partially.  To 
the extent the extent of the closures vary, it is a damages issue that does not preclude 
centralization.  See, e.g., In re Valsartan N-Nitrosodimethylamine (NDMA) Contamination Prod. 
Liab. Litig., 363 F. Supp. 3d 1378, 1381-82 (J.P.M.L. 2019) (centralizing consumer claims for 
economic damages with personal injury claims).  And, even in those instances where shutdown 
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orders have now been relaxed, the ways in which states have done so can be broken down into a 
limited number of categories.3  The relatively limited number of variations between these orders 
is dwarfed by the number of inconsistent discovery and other pretrial rulings that will issue 
regarding these orders should these cases all proceed on separate tracks. 
These issues with respect to the standardized policies, physical presence of the virus, and 
materially-identical government shutdown orders are factual and common to the Related 
Actions.  These issues can, and should, be resolved in a common way in a centralized 
proceeding.  In addition, these common questions of fact also heighten the likelihood that, at 
minimum, certification of the classes proposed in many of these actions will require significant 
judicial resources to resolve.  This Panel has already recognized that “centralization of these 
actions could eliminate inconsistent pretrial rulings with respect to the overlapping nationwide 
class claims that most of the insurers face.”  MDL No. 2942, ECF No. 772, at 3-4.  Society’s 
response to the Panel’s recognition of the issues with respect to overlapping classes is only to 
propose that the proposed class actions be coordinated within the Northern District of Illinois.  
ECF No. 32 at 10-11.  But Society has no proposal for how proposed class actions pending 
outside the District, of which there are already three,4 could also be coordinated; as this Panel 
has already noted, transfer and centralization is the natural and appropriate solution to this issue. 
                                                     
3 See, e.g., https://www.nytimes.com/interactive/2020/us/states-reopen-map-coronavirus.html 
(placing the pandemic response in each of the 50 states into four categories – reversing, pausing, 
reopening, and reopened – and noting the impact of the orders currently in place on seven 
categories of businesses). 
4 These actions include Rising Dough, Inc. v. Society Insurance, No. 2:20-cv-00623 (E.D. Wis.); 
Ambrosia Indy LLC v. Society Insurance, No. 2:20-cv-00771 (E.D. Wis.); and Wiseguys Pizzeria 
& Pub LLC v. Society Insurance, No. 2:20-cv-01340 (E.D. Wis.);  
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B. 
Resolution of the Related Actions’ Common Questions of Law Would Also 
Benefit from Centralization. 
In addition to the common questions of fact that these Related Actions share, the 
common questions of law that these Related Actions indisputably share also support 
centralization.  While this Panel has held that common questions of law are not by themselves 
sufficient to warrant transfer absent common questions of fact, this does not mean that common 
legal questions are irrelevant to the analysis.  When Section 1407’s requirement that there be 
“one or more common questions of fact” is satisfied, the presence of one or more common 
questions of law means that centralization would even further “promote the just and efficient 
conduct of such actions.”  28 U.S.C. § 1407; see, e.g., In re Vision Serv. Plan Tax Litig., 484 F. 
Supp. 2d 1356, 1357 (J.P.M.L. 2007) (centralizing actions because they “involve identical legal 
questions” and to “prevent inconsistent pretrial rulings”).  As this Panel has already noted, an 
MDL specific to Society is “more likely to involve insurance policies utilizing the same 
language, endorsements, and exclusions,” ECF No. 772 in MDL No. 2942, which would present 
common issues of policy interpretation.   
Thus, there are considerable efficiencies to centralizing these actions, and the pending 
motions to dismiss, before the same transferee judge.  As the Second Circuit noted in In re Ivy, 
901 F.2d 7 (2d Cir. 1990), when faced with a legal issue of law and fact that was “easily capable 
of arising in hundreds of even thousands of cases in district courts throughout the nation,…there 
are real economies in transferring such cases” to a single judge under Section 1407.  Id. at 9.  
“Once transferred, the [legal issue] can be heard and resolved by a single court and reviewed at 
the appellate level in due course.  Consistency was well as economy is thus served.”  Id. 
Finally, Society’s argument that centralization would delay resolution of its pending 
motions to dismiss, see ECF No. 32 at 3, has already been considered and rejected by this Panel: 
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The parties opposing centralization assert that, inter alia, centralization will 
needlessly delay resolution of the Massachusetts action, in which a fully briefed 
motion to dismiss is already pending. Based upon the Panel's precedents and for 
the following reasons, we respectfully disagree with this argument. While there 
may indeed be some initial delay incorporating all actions into a centralized 
forum, centralization nevertheless carries the benefit of placing all of these 
related nationwide class actions before a single judge who can structure pretrial 
proceedings to accommodate all parties’ legitimate discovery needs while 
ensuring that common parties such as Prudential and other witnesses are not 
subjected to discovery demands that duplicate activity in other actions.”   
In re Prudential Ins. Co. of Am. SGLI/VGLI Contract Litig., 763 F. Supp. 2d 1374, 1375 
(J.P.M.L. 2011).  The gains from centralization here are similarly too great to justify permitting 
dozens of different courts to reach inconsistent rulings on the pending motions to dismiss. 
II. 
THE EASTERN DISTRICT OF WISCONSIN IS THE APPROPRIATE FORUM 
FOR TRANSFER AND CENTRALIZATION 
For the reasons set forth in their Response, Plaintiffs believe that transfer and 
centralization in the Eastern District of Wisconsin is most appropriate for this litigation. See ECF 
No. 42 at 10-11.  Society maintains its headquarters in that District, and there are currently three 
class cases pending there.  Transfer to the Eastern District of Wisconsin would best promote the 
convenience of the parties and witnesses as provided by Section 1407. 
Alternatively, the Northern District of Illinois before the Honorable Matthew F. Kennelly 
would also serve as an appropriate transferee forum.  See ECF No. 42 at 11.  Nineteen of the 
current 24 Related Actions are currently pending there, and transfer to that District is also 
supported by the plaintiffs in five other actions.  See ECF No. 34 at 5-6; ECF No. 35 at 4-5; ECF 
No. 45 at 1.   
III. 
CONCLUSION 
For the above-stated reasons, as well as those discussed in Plaintiffs’ Response, ECF No. 
42, Plaintiffs respectfully request that the Panel transfer these Related Actions for coordinated or 
consolidated pretrial proceedings in the Eastern District of Wisconsin or, in the alternative, 
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before the Honorable Matthew F. Kennelly in the United States District Court for the Northern 
District of Illinois.  
Dated:  September 2, 2020 
 
Respectfully submitted, 
 
/s/ Arnold Levin 
 
Arnold Levin, Esquire 
Laurence S. Berman, Esquire 
Frederick S. Longer, Esquire 
Daniel C. Levin, Esquire 
Keith J. Verrier, Esquire 
LEVIN SEDRAN & BERMAN LLP 
510 Walnut Street, Suite 500 
Philadelphia, PA 19106-3697 
Telephone: (215) 592-1500 
Facsimile: (215) 592-4663 
alevin@lfsblaw.com 
lberman@lfsblaw.com  
flonger@lfsblaw.com 
 
dlevin@lfsblaw.com 
kverrier@lfsblaw.com 
 
Richard M. Golomb, Esquire 
Kenneth J. Grunfeld, Esquire 
GOLOMB & HONIK, P.C. 
1835 Market Street, Suite 2900 
Philadelphia, Pennsylvania 19103 
Telephone: (215) 346-7338 
Facsimile: (215) 985-4169 
rgolomb@GolombHonik.Com 
KGrunfeld@GolombHonik.Com 
 
W. Daniel “Dee” Miles, III  
Rachel N. Boyd 
Paul W. Evans 
BEASLEY, ALLEN, CROW, METHVIN, 
PORTIS & MILES, P.C. 
P.O. Box 4160 
Montgomery, Alabama  36103 
Telephone: (334) 269-2343 
Facsimile: (334) 954-7555 
Dee.Miles@BeasleyAllen.com 
Rachel.Boyd@BeasleyAllen.com  
Paul.Evans@BeasleyAllen.com 
 
/s/ Mark Lanier 
 
     Mark Lanier 
     Alex Brown 
     Ralph (skip) McBride 
     THE LANIER LAW FIRM PC 
     10940 West Sam Houston Parkway North  
     Suite 100 
     Houston, Texas 770064 
     Telephone: (713) 659-5200 
      WML@lanierlawfirm.com 
      Alex.brown@lanierlawfirm.com  
      Skip.McBride@lanierlawfirm.com        
 
Adam J. Levitt 
John E. Tangren 
Amy E. Keller 
Daniel R. Ferri 
Mark Hamill 
Laura E. Reasons 
DICELLO LEVITT GUTZLER LLC 
Ten North Dearborn Street, Sixth Floor 
Chicago, Illinois 60602 
Telephone: (312) 214-7900 
alevitt@dicellolevitt.com  
jtangren@dicellolevitt.com  
akeller@dicellolevitt.com  
dferri@dicellolevitt.com  
mhamill@dicellolevitt.com  
lreasons@dicellolevitt.com  
 
Mark A. DiCello 
Kenneth P. Abbarno 
Mark Abramowitz 
DICELLO LEVITT GUTZLER LLC 
7556 Mentor Avenue 
Mentor, Ohio 44060 
Telephone: (440) 953-8888 
madicello@dicellolevitt.com  
kabbarno@dicellolevitt.com 
mabramowitz@dicellolevitt.com 
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Counsel for Plaintiff Wiseguys Pizzeria & 
Pub LLC 
      
Timothy W. Burns 
Jeff J. Bowen 
Jesse J. Bair 
Freya K. Bowen 
BURNS BOWEN BAIR LLP 
One South Pinckney Street, Suite 930 
Madison, Wisconsin 53703 
Telephone: (608) 286-2302 
tburns@bbblawllp.com  
jbowen@bbblawllp.com  
jbair@bbblawllp.com  
fbowen@bbblawllp.com  
 
Douglas Daniels 
DANIELS & TREDENNICK 
6363 Woodway, Suite 700 
Houston, Texas 77057 
Telephone: (713) 917-0024 
douglas.daniels@dtlawyers.com  
 
Jeffrey P. Goodman 
Robert J. Mongeluzzi 
Patrick Howard 
Samuel B. Dordick 
SALTZ, MONGELUZZI & 
BENDESKY, P.C. 
1650 Market Street 
One Liberty Place, 52nd Floor 
Philadelphia, Pennsylvania  19103 
Telephone: (215) 496-8282 
 
jgoodman@smbb.com  
rjmongeluzzi@smbb.com 
phoward@smbb.com  
SDordick@smbb.com 
 
Counsel for Plaintiffs Rising Dough, Inc. 
(d/b/a Madison Sourdough), Willy 
McCoys of Albertville LLC, Willy 
McCoys of Andover LLC, Willy McCoys 
of Chaska LLC, Willy McCoys of 
Shakopee LLC, Whiskey Jacks of 
Ramsey LLC (d/b/a Willy McCoys 
Ramsey), Green Hills Grille LLC, and 
Cash-Mckeown Futures LLC 
 
 
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