Whistler & Sleeping Village interested-party response — In re Society Insurance COVID-19 BI Litigation

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BEFORE THE UNITED STATES 
JUDICIAL PANEL ON MULTIDISTRICT LITIGATION 
 
 
    MDL No. 2964 
 
 
 
 
PLAINTIFFS’ INTERESTED PARTY RESPONSE TO ORDER TO SHOW 
CAUSE FOR TRANSFER AND COORDINATION OR CONSOLIDATION 
UNDER 28 U.S.C. §1407 
 
 
The Whistler LLC and Sleeping Village, Inc. (“The Whistler and Sleeping Village 
Plaintiffs”) by and through their undersigned counsel and pursuant to 28 U.S.C.§1407 and Rule 
6.2(e) of the Rules of Procedure of the United States Judicial Panel on Multidistrict Litigation 
(“Panel”), respectfully submit the following interested party response to the Panel’s Order to 
Show Cause as to why all COVID-19-related business interruption cases against Society 
Insurance, Inc. (the “Society Actions”) should not be transferred and coordinated. 
I. 
INTRODUCTION 
Twenty-one cases are pending against Society Insurance (“Society”). Seventeen are in the 
Northern District of Illinois, two are in the Eastern District of Wisconsin, one is in the Middle 
District of Tennessee, and one is in District of Minnesota. The Illinois cases are before seven 
judges. There is a pending motion to relate all Northern District of Illinois cases against Society 
before a single judge. See Big Onion Tavern Grp., LLC v. Society Ins., Inc., No. 1:20-cv-02005, 
ECF Nos. 79, 87, 89, 91, 93, 95, 98-107). The Whistler and Sleeping Village Plaintiffs support 
that motion.  
 
In re: SOCIETY INSURANCE COMPANY 
COVID-19 BUSINESS INTERRUPTION  
INSURANCE COVERAGE LITIGATION 
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II. 
CENTRALIZATION WILL PROMOTE SECTION 1407'S GOALS OF 
ENSURING THE JUST AND EFFICIENT CONDUCT OF THE ACTIONS 
AND AVOIDING INCONSISTENT OR CONFLICTING DETERMINATIONS     
 
28 U.S.C. §1407(a) provides, in relevant part: 
 
When civil actions involving one or more common questions of fact are 
pending in different districts, such actions may be transferred to any 
district for coordinated or consolidated pretrial proceedings. Such 
transfers shall be made by the judicial panel on multidistrict litigation 
authorized by this section upon its determination that transfers for such 
proceedings will be for the convenience of parties and witnesses and will 
promote the just and efficient conduct of such actions. 
 
“Centralization under Section 1407 is . . . necessary in order to eliminate duplicative 
discovery; prevent inconsistent pretrial rulings, especially with respect to class certification; and 
conserve the resources of the parties, their counsel and the judiciary.” In re High Sulfur Content 
Gasoline Prod. Liab. Litig., 344 F. Supp. 2d 755, 757 (J.P.M.L. 2004); In re S. Pac. Transp. 
Co. Emp’t Practices Litig., 429 F. Supp. 529 531 (J.P.M.L. 1977); see also In re Terrorist 
Attacks on Sept. 11, 2001, 295 F. Supp. 2d 1377, 1378 (J.P.M.L. 2003). The litmus test of 
transferability and coordination under Section 1407 is the presence of common questions of 
fact. In re Fed. Election Campaign Act Litig., 511 F. Supp. 821, 823 (J.P.M.L. 1979); see also 
In re Meridia Prod. Liab. Litig., 217 F. Supp. 2d 1377, 1378 (J.P.M.L. 2002);  
The Society Actions are particularly well suited for MDL treatment. First, the individual 
cases share fundamental factual and legal questions. Society is a regional insurer that, to the 
best of Whistler and Sleeping Village Plaintiffs’ knowledge, uses only a small number of 
largely identical policy forms. Common questions exist as to Society’s uniform practices to 
deny business interruption claims relating to stay-at-home orders intended to mitigate the 
spread of COVID-19, and Society’s investigation, if any, into those claims.  
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Second, centralization will also prevent duplicative discovery and inconsistent factual 
and legal determinations. Society has already filed dispositive motions raising nearly identical 
arguments as to why the insured’s claim is not entitled to be paid. Dispositive and other motions 
filed by the parties in the Society Actions will therefore require the resolution of common issues 
of fact and law. See, e.g., In re Oil Spill by “Amoco Cadiz” off the Coast of France on Mar. 16, 
1978, 471 F. Supp. 473, 478 (J.P.M.L. 1979) (ordering centralization where actions “involve 
common questions of fact”). It would be a waste of judicial resources to have essentially the 
same issues decided by multiple different judges. Moreover, in response to Society’s motions, 
the insureds will inevitably raise different arguments on the same legal issues. This situation 
invites conflicting pretrial rulings relating to interpretation of the common insurance policy 
language. 
 
Society asserts that this Panel’s denial of an industry-wide MDL suggests there are no 
common questions of fact. Society overreads this Panel’s decision. With respect to an insurer-
specific MDL (as opposed to an industry-wide MDL), this Panel stated: 
 [T]he arguments for insurer-specific MDLs are more persuasive. 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. 
 
In re Covid-19 Bus. Interruption Prot. Ins. Litig., No. MDL No. 2942, 2020 U.S. Dist. LEXIS 
144446, at *6-7 (J.P.M.L. Aug. 12, 2020) 
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Society further argues that because dispositive motions are pending in many of the cases 
against them, many of the claims will be resolved on the face of the pleadings, and that 
centralization is not appropriate for cases that are likely subject to early resolution. That 
argument also fails. In In Re: Uber Techs, Inc., the Uber defendants objected to centralization 
based on the asserted likelihood that their pending motions to compel individual arbitration 
would bring an early resolution to the cases. The Panel, in granting centralization, found that: 
[S]uch an assessment of the merits of the actions is beyond the Panel’s authority. 
Thus, where the litigation involves common factual questions, centralization 
may be appropriate even though defendants predict that they will prevail on 
dispositive motions prior to commencement of discovery. Centralization will 
avoid inconsistent rulings on these and other common pretrial motions. 
 
In Re: Uber Techs, Inc., 304 F.Supp. 3d 1351, 1353 (J.P.M.L. 2018). Simply put, 
centralization will promote efficiency by allowing common disputes related to the coverage and 
standard contract provisions provided by Society’s policies to be argued before and resolved by 
a single court.  
III. 
THE PANEL SHOULD CENTRALIZE THE TWENTY-ONE CASES 
CONCERNING INSURANCE COVERAGE ISSUED BY SOCIETY 
INSURANCE (“SOCIETY ACTIONS”) IN THE U.S. DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF ILLINOIS. 
A critical purpose of § 1407 transfers is to serve “the convenience of parties and 
witnesses.”  28 U.S.C. § 1407. As an initial matter, most of the Society Actions are already 
pending in the Northern District of Illinois. More importantly, the Panel has often stated that the 
location of a proposed transferee district is an important consideration. Indeed, geographic 
centrality is of considerable importance where, as here, no district stands out as the “focal point” 
of a nationwide litigation. See, e.g., TJX Cos., Fair & Accurate Credit Transactions Act 
(FACTA) Litig., 505 F. Supp. 2d 1379, 1380 (J.P.M.L. 2007) (selecting “centrally located” 
district for “nationwide docket”); In re: Motor Fuel Temperature Sales Practices Litig., 493 F. 
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Supp. 2d 1365, 1367 (J.P.M.L. 2007) (selecting judge with “the time and experience to steer 
[the] litigation” in a district that was “relatively conveniently located for many parties and 
witnesses”).  
With respect to the Northern District of Illinois specifically, the Panel has consistently 
held that Chicago’s geographically central location is a “reason commending transfer to the 
Northern District of Illinois” if “litigation is nationwide.”  In re: Folding Carton Antitrust Litig., 
415 F. Supp. 384, 386 (J.P.M.L. 1976); see also In re: “Factor VIII or IX Concentrate Blood 
Prods.” Prods. Liability Litig., 853 F. Supp. 454, 455 (J.P.M.L. 1993) (“Chicago is a 
geographically central location for this nationwide litigation”); In re: Air Fare Litig., 322 F. 
Supp. 1013, 1015 (J.P.M.L. 1971) (“The geographical location of the transferee court is 
especially relevant when counsel must travel from distant parts of the country.  We think that the 
Northern District of Illinois will be more convenient for counsel, and thus less expensive for 
their clients, than either of the other proffered districts.”); In re: Butterfield Patent Infringement, 
328 F. Supp. 513 (J.P.M.L. 1970) (transferring actions to the Northern District of Illinois because 
“Chicago is geographically central”). It is also indisputable that the Northern District of Illinois 
is an “accessible, urban district equipped with the resources that this complex docket is likely to 
require.”  In re: Comp. of Managerial, Prof’l & Technical Employees Antitrust Litig. 206 F. 
Supp. 2d at 1376. Although many districts are in urban settings, no district thus far proposed is as 
well equipped to manage the proposed MDL as the Northern District of Illinois. Chicago’s easily 
accessible airports and geographic centrality make it the ideal location for managing this 
nationwide litigation. In addition, Chicago is appropriate because Society is headquartered in 
nearby Milwaukee, Wisconsin. Finally, the Northern District of Illinois has the requisite 
resources and capacity to manage this proceeding. See, e.g., In Re: Navistar Maxxforce Engines 
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Mktg., Sales Practices & Prod. Liab. Litig., 67 F. Supp. 3d 1382, 1384 (J.P.M.L. 2014) 
(recognizing that the Northern District of Illinois is “a convenient and accessible forum with the 
resources to devote to [MDL proceedings]”).  Finally, the vast majority of cases already filed are 
filed in the Northern District of Illinois.  
IV. 
CONCLUSION  
 
Centralization in the Northern District of Illinois will prevent duplicative discovery on 
common questions of fact and law. It will further serve to avert inconsistent and conflicting 
pretrial rulings, and conserve the resources of the parties, their counsel, and the judiciary. The 
Northern District of Illinois offers a geographically central location that is convenient for the 
parties and the witnesses and is the appropriate venue for this proceeding. The twenty-one cases 
concerning insurance coverage issued by Society (“Society Actions”) should be centralized in 
the U.S. District Court for the Northern District of Illinois. 
 
Date: September 2, 2020 
 
 
       Respectfully submitted,  
/s/  Jay Angoff 
 
Gary M. Klinger 
gklinger@masonllp.com 
MASON LIETZ & KLINGER LLP 
227 West Monroe St., Ste. 2100 
Chicago, IL 60606 
Tel.: 312-283-3814 
 
Gary E. Mason 
gmason@masonllp.com 
Danielle L. Perry 
dperry@masonllp.com 
MASON LIETZ & KLINGER LLP 
5101 Wisconsin Ave., NW Ste. 305 
Washington, DC 20016 
Tel.: 202-429-2290 
Jay Angoff 
jangoff@findjustice.com 
Cyrus Mehri 
cmehri@findjustice.com 
Joshua Karsh 
jkarsh@findjustice.com 
Ezra Bronstein 
ebronstein@findjustice.com 
MEHRI & SKALET, LLC 
1250 Connecticut Ave NW, Suite 300 
Washington, DC 20036 
Tel.: (202) 822-5100 
Fax: (202) 822-4997  
 
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Fax.: 202-429-2294 
 
Jonathan Shub 
jshub@shublawyers.com 
Kevin Laukaitis, Esq. 
Klaukaitis@shublawyers.com 
SHUB LAW FIRM LLC 
134 Kings Hwy. E.  
2nd Floor 
Haddonfield, New Jersey 08033 
Tel.: 856-772-7200 
Joel R. Rhine                                                       
jrr@rhinelawfirm.com 
Martin A. Ramey  
mjr@rhinelawfirm.com  
Rhine Law Firm, P.C. 
1612 Military Cutoff Road, Suite 300                
Wilmington, North Carolina 28403                    
Tel: (910) 772-9960                                            
Fax: (910) 772-9062    
 
 
Attorneys for Plaintiffs The Whistler LLC and Sleeping Village, Inc 
 
 
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 on September 2, 2020, I caused the 
accompanying Interested Party Response to be filed with the Court’s CM/ECF system, which 
sends a service copy to all registered parties in the action at their associated email addresses. 
 
Date: September 2, 2020 
 
 
           Respectfully submitted,  
/s/  Jay Angoff 
 
 
Case MDL No. 2964   Document 65   Filed 09/02/20   Page 7 of 7

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