District judge rules that broad interpretation of United Airline’s “Force Majeure Event” clause eliminating all airline passenger claims to refunds would “eviscerate” the schedule change and irregular operations provisions that permit passenger refunds.
Court finds there must be “some point” where a force majeure event ends, and cancellations due to a schedule change or irregular operation within the airline’s control begins.
Discovery was warranted on whether certain cancellations were due to COVID-19 travel restrictions (barring refunds) or merely economic considerations (permitting refunds).

In Rudolph v. United Airlines Holdings, Inc., No. 1:20-cv-02142 (N.D. Ill. Feb. 21, 2021), three airline ticketholders filed a class action against United, alleging breach of United’s contractual obligation to refund fares for flights cancelled during the pandemic. The three named plaintiffs alleged that they had purchased United tickets and that either: (i) the plaintiffs voluntarily cancelled nonrefundable tickets; (ii) United cancelled a leg of their journey at the last minute and offered to rebook or issue a credit; or (iii) United cancelled their flight altogether. In all three circumstances, plaintiffs alleged, United refused to issue refunds.

United’s Contract of Carriage (COC) has a ticket cancellation regime with three categories, two of which were at issue in the litigation. First, a ticket may be cancelled due to a “Force Majeure Event,” defined, in relevant part, as:

  • Any condition beyond [United’s] control including, but not limited to, meteorological or geological conditions, acts of God, riots, terrorist activities, civil commotions, embargoes, wars, hostilities, disturbances, or unsettled international conditions, either actual, anticipated, threatened or reported, or any delay, demand, circumstances, or requirement due directly or indirectly to such condition;
  • Any strike ... or any other labor-related dispute involving or affecting [United’s] services;
  • Any governmental regulation, demand or requirement;
  • Any shortage of labor, fuel, or facilities of [United] or others;
  • Any emergency situation requiring immediate care or protection for a person or property; or
  • Any event not reasonably foreseen, anticipated, or predicted by [United].

Second, a flight may be cancelled due to a “Schedule Change,” defined as “an advance change in [United’s] schedule (including a change in operating carrier or itinerary) that is not a unique event such as ... Force Majeure Event.” In the event of a “Schedule Change,” affected passengers are entitled to refunds, but in the event of a Force Majeure Event, the ticketholder’s only remedy is a credit toward future travel, and United has no obligation to issue a refund.

United moved to dismiss the case for failure to state a claim, arguing that the cancellations were due to a “Force Majeure Event,” namely, that the United States government and the World Health Organization declared COVID-19 a public health emergency and global pandemic, respectively. United further relied on the United States government’s initial “do not travel” warning followed by the travel ban, as well as the fact that certain of the plaintiffs’ destination countries closed their borders to foreign travelers.

In opposition, plaintiffs argued that their flights were cancelled due to “Schedule Changes,” not “Force Majeure Events.” To support this argument, plaintiffs pointed to allegations in the Complaint that United’s decision to cancel flights was “based on pure economics,” not the global health declarations or travel restrictions, and that “none of the circumstances that United cites outright prohibited the operations of the flights at issue.” Finally, plaintiffs contended that United’s reading of the force majeure clause was contrary to basic canons of contract interpretation because it left the Schedule Change clause without meaning.

The Court granted United’s motion in part and denied it in part, with slightly different reasoning for each plaintiff based on their particular circumstances. As a general matter, the Court accepted plaintiffs’ argument that United’s reading of the force majeure clause was overly broad: adopting United’s interpretation of the contractual definition of “Force Majeure Event” “could gut the Schedule Change[provision]” because at “some point” the “Force Majeure Event ends, and a Schedule Change ... begins.” The Court acknowledged, but declined to apply, case law in other jurisdictions holding that the pandemic is a force majeure event, on the basis that those out-of-state decisions were not binding and that “force majeure provisions must be construed in accordance with their own language and context.”

The Court went on to hold that even if COVID-19 were a “Force Majeure Event,” one of the named plaintiffs was entitled to discovery on whether the pandemic was the proximate cause of the cancellations or whether, as the Complaint alleged, the cause was United’s desire to reduce operating expenses. On this basis, the Court denied United’s motion with respect to flights for which the Complaint contained plausible allegations that the cancellations were due to economic self-interest and not the global health crisis or ensuing shutdown orders.

As for the other flights at issue in the Complaint, the Court granted United’s motion. With respect to the plaintiff whose international flight was cancelled following the travel restrictions, the Court found it was “simply [] not plausible that [border] closures were not a proximate cause of the cancellations.” With respect to the plaintiff who cancelled his own flight, the Court acknowledged that the Complaint contained no allegations suggesting United had caused the cancellation.

Rudolph again highlights the significance of the specific language in the applicable force majeure clause, as well as the importance of causation. It also could indicate that, while certain courts appear to be moving towards a more liberal interpretation of force majeure clauses, there is not yet—and perhaps never will be—a sea change.

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Developing COVID-19 Force Majeure Case Law

(Updates since the last issue are bolded below.)


Central District of California (Extension of closing date)

Pacific Collective LLC v. Exxonmobil Oil Corp., No. 2:20-cv-03887-ODW-RAO (C.D. Cal. 2020) (Commercial real estate buyer seeks to extend closing date of real estate purchase on basis that Safer-At-Home orders constitute force majeure as defined in purchase agreement; Removed from California state court on April 29, 2020; Case transferred from Judge John A. Kronstadt due to self-recusal; Case ordered referred to ADR.) (04/03/2020 Complaint; 04/30/2020 Order to Reassign Case; 05/05/2020 Order Returning Case For Reassignment Upon Recusal11/05/2020 Order/Referral to ADR; 04/21/2021 Order of Dismissal)

Southern District of Florida (Excuse from rent payment)

Palm Springs Mile Assocs., LTD. v. The Men’s Wearhouse Inc., No. 20-cv-21965 (S.D. Fla. 2020) (Men’s Warehouse invokes force majeure defense against breach of contract claim, alleging its obligation to pay rent was excused by COVID-19; Suit voluntarily dismissed on June 1, 2020.) (05/11/2020 Complaint; 06/01/2020 Notice of Voluntary Dismissal)

Northern District of Illinois (Excuse from rent payment)

In re Hitz Rest. Grp., No. 1:20-br-05012 (Bankr. N.D. Ill. 2020) (Restaurant-group tenant invokes “governmental action” phrase of force majeure clause, to excuse rent obligation arguing Illinois Governor’s Coronavirus Order shutting down on-premises dining prevented it from operating its business; Court agrees in part, holding tenant’s rent obligation would be reduced on a pro rata basis in accordance with decrease in revenues from its inability to offer on-premises dining; Case dismissed on July 21, 2020.) (04/27/2020 Creditors’ Motion for Relief from Automatic Stay; 05/12/2020 Debtor’s Response; 05/26/2020 Creditors’ Reply; 06/02/2020 Memorandum Opinion; 06/02/2020 Order Granting in Part; 07/21/2020 Order of Dismissal) (See our prior article on this decision and an in‑depth analysis of this decision.)

Eastern District of New York (Excuse from transaction closing; Excuse from contract performance)

Gomel Capital Partners LLC v. 601 NE 29 Drive LLC, et al., No. 1:20-cv-01922-FB-JO (E.D.N.Y. 2020) (Plaintiff seeks to terminate real property purchase contract and recoup $275,000 deposit, alleging “outbreak of the COVID-19 global pandemic is a force majeure event, a quintessential ‘act of God’,” and invoking contractual provision that permits termination when a force majeure event prevents performance of contract for “more than 30 days beyond the Closing Date”; Case voluntarily dismissed on July 13, 2020.) (04/27/2020 Complaint; 07/13/2020 Letter Motion by Plaintiff Informing Court of Settlement; 07/13/2020 Notice of Voluntary Dismissal with Prejudice)

Williamsburg Climbing Gym Co. LLC and Fifth Concerto Holdco Inc. v. Ronit Realty LLC, No. 1:20-cv-02073 (E.D.N.Y. 2020) (Tenant seeks rescission and declaration that it lawfully terminated lease pursuant to common law doctrines of impossibility and frustration of purpose because COVID-19 pandemic and Governor’s executive orders mandated business closure and stoppage of construction; landlord asserts breach of contract counterclaim on basis that lease’s force majeure clause expressly carves out rent payment obligations; tenant argues force majeure clause is inapplicable because pandemic is not an enumerated event and frustration/impossibility are separate doctrines; counterclaims and answer amended on other grounds; landlord argues in summary judgment motion that tenants’ common law defenses of impossibility and frustration of purpose are precluded by lease’s force majeure provision, which provides that, in the event of a force majeure event (e.g., “governmental law or regulations which prevent or substantially interfere with the required performance”) tenants’ obligation to pay rent is not excused; tenants argue in opposition that force majeure provision is inapplicable because it does not specifically include a “global pandemic or plague” in its definition and, even if the definition was broad enough to encompass the pandemic, the clause does not waive tenants’ claims of impossibility or frustration of purpose) (05/06/2020 Complaint; 06/24/2020 Answer and Counterclaims; 06/24/2020 Defendant’s Pre-Motion Letter to the Court Re: Judgment on the Pleadings; 07/01/2020 Plaintiff’s Pre-Motion Response Letter to Court re: Judgment on the Pleadings; 07/23/2020 Amended Counterclaims; 08/06/2020 Answer to Amended Counterclaims; 08/14/2020 Plaintiff’s Pre-Motion Letter to the Court Re: Intent to file a Motion for Summary Judgement; 8/20/2020 Defendant’s Pre-Motion Letter to the Court Re: Plaintiff’s Intent to file a Motion for Summary Judgement; 10/23/2020 Defendant’s Letter Agreeing to Mediation; 02/23/2021 Defendant’s Memorandum of Law in Support of its Motion for Summary Judgment; 03/23/2021 Plaintiff’s Memorandum of Law in Opposition to Defendant’s Motion for Summary Judgment; 04/16/2021 Defendant’s Reply Memorandum of Law in Support of its Motion for Summary Judgment; 02/23/2021 Plaintiff’s Memorandum of Law in Support of its Motion for Summary Judgment; 03/23/2021 Defendant’s Memorandum of Law in Opposition to Plaintiff’s Motion for Summary Judgment; 04/16/2021 Plaintiff’s Reply Memorandum of Law in Support of its Motion for Summary Judgment)

Banco Santander (Brasil), S.A. v. American Airlines Inc., No. 20-cv-3098 (E.D.N.Y. 2020) (Plaintiff seeks declaration that it is entitled to terminate pursuant to force majeure clause that covers “act of God” and “act of government”; defendant argues plaintiff failed to state a claim because agreement contemplated force majeure event and those provisions govern; plaintiff argues it sufficiently plead agreement does not contemplate force majeure event and is entitled to such declaration.) (07/10/2020 Complaint; 0/8/24/2020 Supplemental Complaint; 09/04/2020 Defendant’s Motion to Dismiss for Failure to State a Claim; 09/25/2020 Plaintiff’s Memorandum in Opposition to Motion to Dismiss for Failure to State a Claim, refiled under seal 10/07/2020; 10/09/2020 Defendant’s Reply in Support of Motion to Dismiss)

Southern District of New York (Excuse from contract performance; Excuse from payment obligation)

Abshkharon et al v. Air Canada, No. 20-cv-11037 (SDNY) (Plaintiffs allege that Air Canada changed its refund practices, and asserted that refunds were only available for cancellations within Air Canada’s control and that “Cancellations resulting from the COVID-19 crisis are considered outside our control;” on 04/30/2021, the Court consolidated Piercy v. Air Canada (“Piercy”), 20-cv-04988-PMH and Abshkharon et al v. Air Canada (“Abskharon”), 20-cv-11037 into the captioned action, Vozzolo v. Air Canada, 20-cv-3503. The Court directed counsel for the parties to file a joint status letter concerning the refunds discussed at the conference by July 8, 2021; Plaintiffs’ consolidated amended complaint reflecting the new circumstances shall be filed on or before August 2, 2021; Defendant’s answer or its pre-motion letter in connection with a motion to dismiss shall be filed by August 13, 2021; and if Defendant seeks leave to move to dismiss or renew its prior motions, Plaintiffs’ response to the pre-motion letter is due August 20, 2021.) (03/15/2021 Amended Complaint)

D’Amico Dry D.A.C. v. McInnis Cement Inc., No. 1:20-cv-03731-VEC (S.D.N.Y. 2020) (Shipping company alleges breach of contract against cement supplier and seeks maritime attachment of assets pending arbitration on basis that supplier defaulted prior to COVID-19 and then invoked force majeure clause as pretense to terminate; Court enters ex parte order of attachment and denied cement supplier’s motion to vacate same; Parties entered into a confidential settlement agreement.) (05/14/2020 Complaint; 05/25/2020 Defendant’s Motion to Vacate the Process of Maritime Attachment; 06/03/2020 Plaintiff’s Opposition to Defendant’s Motion to Vacate the Process of Maritime Attachment; 06/30/2020 Opinion Order Denying Motion to Vacate the Process of Maritime Attachment; 09/02/2020 Plaintiff’s Consent Letter; 09/03/2020 Memo Endorsement of Plaintiff’s Consent Letter; 09/04/2020 Order of Dismissal with Prejudice)

DiBella Entertainment, Inc. v. O’Shaquie Foster, No. 21-cv-02709-JGK (S.D.N.Y.) (Plaintiff, a boxing promotional company, seeks to avoid its obligations under Promotional Rights Agreement with Defendant, a professional boxer, after Plaintiff invested in excess of $100,000 into the professional boxer’s career, asserting that COVID-19 constitutes a force majeure event under the Agreement; Defendant sought leave to file its motion to dismiss; Plaintiff move to file its first amended complaint; the Court ordered the Plaintiff shall file its amended Complaint by May 24, 2021, and Defendant should move or answer by June 7, 2021; if Defendant moves, Plaintiff shall respond by June 21, 2021, and Defendant will reply by July 2, 2021.) (03/30/2021 Complaint; 04/29/2021 Defendant’s Letter Motion for Leave to File Motion to Dismiss and for Extension of Time; 05/11/2021 Order)

Delta Corp Shipping Pte Ltd v. Rankers International Pvt Ltd, No. 1:20-cv-09258-PAE (S.D.N.Y. 2020) (Plaintiff and defendant entered into a charter party agreement, whereby defendant agreed to transport bulk salt from India to China for plaintiff; in March 2020, defendant attempted to cancel agreement by invoking doctrine of force majeure due to COVID-19 pandemic and resulting challenges for defendant’s operations, but plaintiff alleges that force majeure clause of the agreement does not cover defendant’s COVID-19 challenges) (11/04/2020 Complaint; 11/05/2020 Plaintiff’s Memorandum of Law in support of Request for Issuance of Maritime Attachment and Garnishment; 11/05/2020 Declaration in support of Plaintiff’s Request for Issuance of Maritime Attachment and Garnishment; 12/21/2020 Amended Complaint; 04/27/2021 Plaintiff’s Notice of Voluntary Dismissal)

E2W LLC v. Kidzania Operations, S.A.R.L., No. 1:20-cv-02866-ALC (S.D.N.Y. 2020) (Franchisee invokes force majeure clause in franchise agreement, alleging that government shutdown orders excuse its payment obligations and obligation to open an additional franchise location; Court, without any reasoning, grants franchisee’s application and compels parties to maintain status quo during pendency of arbitration; Parties arbitrating claims in the ICC; Matter is stayed pending arbitration.) (04/06/2020 Complaint; 05/11/2020 Order Granting Preliminary Injunction; 05/22/2020 Answer; 10/08/2020 Notice of Case Reassignment; 10/23/2020 Joint Report in Response to the Notice of Reassignment Entered October 8, 2020)

Everlast World’s Boxing Headquarters Corp. v. Transform SR LLC, No. 1:20-cv-09095-RA (S.D.N.Y. Oct. 29, 2020) (Plaintiff sues Defendants Sears and Kmart for breach of contract, alleging Defendants failed to pay Plaintiff royalties while continuing to sell Plaintiff’s products; Defendants argue force majeure clause excused royalty payments and counterclaim against plaintiff for failure to abide by force majeure clause in the agreement; Plaintiff moves for summary judgment, arguing force majeure clause does not excuse Defendants’ failure to remit required royalties; Defendants filed response letter noting Defendants were in process of preparing motion for judgment on the pleadings; Parties settle the dispute and the Court so-orders stipulation of discontinuance with prejudice.) (10/29/2020 Complaint; 12/11/2020 Answer and Counterclaim; 12/30/2020 Plaintiff’s Reply to Defendants’ Counterclaims; 01/07/2021 Plaintiff’s Pre-motion Letter Seeking Leave to File Motion for Summary Judgment; 01/12/2021 Defendants’ Response Letter to Plaintiff’s Pre-motion Letter Seeking Leave to File Motion for Summary Judgment; 03/04/2021 Stipulation of Discontinuance with Prejudice)

The Gap Inc. v. Ponte Gadea New York LLC, No. 1:20-cv-04541 (S.D.N.Y. 2020) (Tenant seeks, inter alia, rescission/cancellation of lease, arguing COVID-19 crisis and civil orders constitute a “casualty” within meaning of force majeure clause causing permanent abatement of rent and termination of lease; Landlord counterclaims alleging breach of contract, arguing COVID-19 and civil orders are not within the scope of force majeure clause and force majeure clause does not excuse contractual rent payment obligation; Tenant answers with general denials of landlord’s allegations regarding force majeure clause and asserts affirmative defenses on other grounds; Tenant seeks stay pending decision by multidistrict litigation panel to consolidate action with 32 other substantively similar actions pending against Tenant in federal district courts; multidistrict litigation panel denied transfer; Court grants defendant/landlord’s motion for summary judgment and dismisses plaintiff’s complaint in the entirety holding that the pandemic and resulting lockdowns did not constitute a “casualty” because that term “refers to singular incidents, like fire, which have a physical impact in or to the premises;” Court refers the case to Magistrate Judge Parker for an inquest on Defendant’s damages; Defendant submits its proposed findings of facts and conclusions of law on damages and Plaintiff’s files its opposition brief to same.) (06/12/2020 Complaint; 07/07/2020 Answer and Counterclaims; 07/28/2020 Answer to Counterclaim; 08/11/2020 Plaintiff’s Motion to Stay Pending Decision by Multidistrict Litigation Panel to Accept Transfer of Federal Court Actions; 09/18/2020 Defendant’s Memorandum of Law in Further Support of Motion for Summary Judgment; 09/25/2020 Reply Memorandum of Law; 03/08/2021 Memorandum and Opinion; 04/01/2021 Defendant’s Proposed Findings of Fact and Conclusions of Law on Damages; 05/03/2021 Plaintiff’s Opposition to Defendant’s Proposed Findings of Fact and Conclusions of Law on Damages)

Hunter Commc’ns. Inc. v. Panasonic Avionics Corp., No. 7:20-cv-03434 (S.D.N.Y. 2020) (Defendant asserts force majeure defense against breach of contract claim brought by satellite communications provider, alleging COVID-19 excused payment obligations under master service agreement for satellite bandwidth capacity services; Plaintiff argues force majeure defense should be stricken because Defendant did not allege that payment breaches were result of COVID-19; Defendant files notice of intent to file amended answer; Court grants Plaintiff’s motion to dismiss and then dismisses case upon settlement agreement.) (05/01/2020 Complaint; 06/26/2020 Answer; 07/17/2020 Plaintiff’s Letter Motion; 07/22/2020 Defendant’s Letter Reply; 08/21/2020 Amended Answer; 09/04/2020 Plaintiff’s Second Letter Motion; 09/11/2020 Defendant’s Second Letter Reply; 09/15/2020 Order Granting Second Letter Motion; 10/05/2020 Order of Dismissal)

JN Contemporary Art LLC v. Phillips Auctioneers LLC, No. 1:20-cv-04370-DLC (S.D.N.Y. 2020) (Plaintiff seeks preliminary injunction preventing Defendant from invoking clause that allowed it to terminate consignment agreement if performance were delayed due to “circumstances beyond [the parties’] reasonable control,” arguing Defendant’s decision to terminate was not caused by pandemic but rather a deliberate business decision; Defendant argues pandemic is within the scope of force majeure clause because it is a “natural disaster” and performance is excused because the specific auction noted in contract was postponed; Court denies mandatory injunction; Defendant moves to dismiss Complaint arguing Defendant’s performance was excused by force majeure clause; Plaintiff argues specific auction noted in contract was not date nor site specific so Defendant was not prevented from performing and COVID-19 and government regulations were not specifically listed in force majeure clause; Court dismisses, noting “[t]he pandemic and the attendant government-imposed restrictions on business operations permitted [Defendant] to invoke the Termination Provision,” as force majeure clause specifically triggered when the auction “is postponed for circumstances beyond our or your reasonable control,” further finding force majeure clause triggered upon the occurrence of a “natural disaster,” reasoning “[i]t cannot be seriously disputed that the COVID-19 pandemic is a natural disaster”; Plaintiff appeals, arguing lower court erred in finding force majeure clause voided contract because, inter alia, (i) court did not narrowly construe the clause, (ii) whether pandemic is a “natural disaster” is a disputed factual matter, (iii) court did not analyze whether pandemic proximately caused non-performance, (iv) whether pandemic was reasonably foreseeable is a disputed factual matter, (v) invocation of force majeure clause netted defendant a better-than-bargained-for deal, and (vi) Defendant was not prevented from performing and did not attempt to perform; Defendant argues that the lower court correctly dismissed Complaint because COVID-19 is clearly a “natural disaster” within meaning of parties’ agreement, citing “a growing body case law” finding COVID-19 qualifies as a “natural disaster” in different contexts; Plaintiff argues on reply that Defendant’s cited authorities were not in force majeure context and resolution of this issue is an “unresolved question of fact that is hotly debated by scientific and legal experts” inappropriate for determination on a motion to dismiss) (06/09/2020 Complaint; 06/12/2020 Plaintiff’s Memorandum of Law in Support of Motion for Preliminary Injunction; 06/23/2020 Amended Complaint; 06/23/2020 Plaintiff’s Amended Memorandum of Law in Support of Motion for Preliminary Injunction; 07/02/2020 Defendant’s Memorandum in Opposition to Plaintiff’s Order to Show Cause for Preliminary Injunction and Temporary Restraining Order; 07/09/2020 Plaintiff’s Reply in Further Support of Motion for Preliminary Injunction; 07/15/2020 Order Denying Temporary Restraining Order and Preliminary Injunction; 07/31/2020 Plaintiff’s Second Amended Complaint; 08/28/2020 Defendant’s Motion to Dismiss Plaintiff’s Second Amended Complaint; 09/18/2020 Plaintiff’s First Memorandum of Law in Opposition to Motion to Dismiss; 10/02/2020 Defendant’s Reply Memorandum of Law; 12/16/2020 Memorandum and Opinion; 01/06/21 Notice of Appeal; 02/26/2021 Brief for Plaintiff/Appellant; 04/02/2021 Brief for Defendant/Appellee; 04/09/2021 Reply Brief for Plaintiff-Appellant)

Viamedia Inc. v. WideOpenWest Finance LLC, No. 1:20-cv-04064-VM (S.D.N.Y. 2020) (Plaintiff seeks preliminary injunction enjoining defendant from terminating television advertising management agreement, alleging plaintiff’s late payments under agreement are excused based on “COVID-19 and the attendant economic crises prompted by government ordered lock downs and stay at home orders, which qualify as both acts of God and/or events beyond the reasonable ability of [plaintiff] to control”; Court denies preliminary injunctive relief; Parties commence arbitration and award issued under seal.) (05/27/2020 Plaintiff’s Memorandum of Law in Support of Motion for Preliminary Injunction; 06/19/2020 Amended Complaint; 06/22/2020 Order Denying Temporary Restraining Order and Preliminary Injunction; 09/18/2020 Defendant’s Letter Motion to Seal Arbitration Award; 09/22/2020 Order Granting Letter Motion to Seal; 09/24/2020 Defendant’s Motion to Confirm Arbitration Award)

Western District of New York (Excuse from payment obligation)

Ellicot Lofts II, LLC v. Wells Fargo, N.A., No. 21-cv-00057-LJV (W.D.N.Y. 2021) (Plaintiff seeks judgment declaring that it is not in default under loan agreement with Defendant because its temporary inability to pay was the result of a force majeure event and not an Event of Default.) (12/31/2020 Complaint; 01/13/2021 Notice of Removal)

Northern District of Texas (Excuse from refund obligation, Excuse from lease obligations)

W.L. Petrey Wholesale Co. Inc. v. V2 Incentives, LP, No. 4:20-cv-00447-A (N.D. Tex. 2020) (Plaintiff seeks refund of amounts paid to travel broker, arguing force majeure clause requiring refund was triggered by government lockdowns and decrees that made trip impossible; Defendant argues affirmative defenses of repudiation, material breach, and failure to mitigate.) (05/19/2020 Amended Complaint; 06/16/2020 Answer; 11/17/2020 Amended Answer)

Hibbett Sporting Goods Inc. v. Weatherford Dunhill LLC c/o Dunhill Prop. Mgmt. Services Inc., No. 4:20-cv-00607-O (N.D. Tex. 2020) (Tenant seeks declaratory judgment that rental and payment obligations and any obligation to continuously operate within mall were excused while Governor’s order mandated closure of the mall; Landlord moves for dismissal on procedural grounds; Court grants parties’ voluntary dismissal of the case with prejudice.) (06/10/2020 Complaint; 07/20/2020 Motion to Dismiss on Procedural Grounds; 08/20/2020 Plaintiff’s Response to Motion to Dismiss; 09/04/2020 Defendants’ Reply in Support of its Motion to Dismiss; 11/02/2020 Joint Stipulation of Voluntary Dismissal; 11/03/2020 Order Granting Joint Stipulation of Voluntary Dismissal)

Southern District of Texas (Excuse from transaction closing)

Khan v. Cinemex USA Real Estate Holdings Inc., No. 4:20-cv-01178 (S.D. Tex. 2020) (Plaintiff seeks, inter alia, specific performance ordering defendant to close on cinema chain purchase transaction, arguing that defendant’s reasons for refusing to close that relate to COVID-19 are invalid because the contract was negotiated after the pandemic was declared and the Material Adverse Effect clause expressly excludes pandemics; case automatically stayed because defendant filed for chapter 11 bankruptcy.) (04/02/2020 Complaint; 06/01/2020 Order Staying the Case due to Defendant filing bankruptcy)

Bankruptcy Court for the Southern District of Texas (Excuse from contract performance; Excuse from payment obligation)

In Re: Cec Entertainment Inc., et al, No. 20-33163 (Bnk. S.D. Tex. 2020) (Plaintiff, a nationwide operator of Chuck E. Cheese venues, seeks rent abatement or reduction at six locations across three states in the wake of new pandemic safety measures and government-imposed regulations pursuant to court’s equitable power to alter Plaintiff’s rent obligation under the Bankruptcy Code, or alternatively, under its lease agreements’ force majeure provisions; Court denies Plaintiffs’ motion for abatement, holding leases’ force majeure provisions do not excuse Plaintiffs’ monetary obligations, including rent payment.) (08/03/2020 Abatement Motion; 12/14/2020 Abatement Opinion)

Eastern District of Virginia (Grounds for contract termination)

Sodexo Operations LLC v. Va. Aquarium & Marine Sci. Ctr. Found. Inc., No. 2:20-cv-00309-AWA-RJK (E.D. Va. 2020) (Food services provider exercised right to terminate contract pursuant to “act of God” and “governmental policy” terms in force majeure clause and alleges defendant’s refusal to reimburse plaintiff for unamortized portion of capital investments is a breach of their contract; Parties settle and Court orders case dismissed with prejudice.) (06/19/2020 Complaint; 08/18/2020 Answer to Complaint and Affirmative Defenses; 08/28/2020 Motion to Dismiss Pursuant to Settlement Agreement; 09/03/2020 Order Dismissing Case)


Delaware (Excuse from transaction closing)

Forescout Technologies Inc. v. Ferrari Grp. Holdings, L.P., No. 2020-0385 (Del. Ch. 2020) (Plaintiff/target asserts breach of contract and specific performance claims against defendant/buyer for failure to close merger deal worth $1.9 billion, on ground that COVID-19 does not constitute a Material Adverse Event permitting buyer’s termination of merger agreement; Buyer asserts declaratory judgment counterclaims that, inter alia, target’s financial troubles caused by COVID‑19 constitute a Material Adverse Event because, notwithstanding explicit exclusion of “epidemics” and “pandemics” as Material Adverse Events, target’s financial troubles are disproportionate in comparison to other similar companies and therefore fall within the “materially disproportionate adverse effect” savings clause; Case voluntarily dismissed with prejudice on July 15, 2020.) (05/19/2020 Complaint; 06/05/2020 Counterclaim; 07/15/2020 Voluntary Dismissal with Prejudice)

Florida (Extension of closing date)

LFG Acquisitions LLC v. CSPS Hotel Inc., No. 20-CA-003842 (Fla. Cir. Ct. Hillsborough Cty. 2020; consolidated into CSPS Hotel, Inc. vs. LFG Acquisitions LLC, No. 20-CA-003636 (Fla. Cir. Ct. Apr 27, 2020) (Plaintiff seeks to delay real estate closing pursuant to force majeure provision in purchase agreement; Defendant answers denying that Plaintiff was entitled to invoke force majeure provision arguing pandemic did not prevent or reasonably interfere with Plaintiff’s ability to close sale.) (05/05/2020 Complaint; 05/29/2020 Answer; 06/15/2020 Order Consolidating Cases; 10/03/2020 Restated Answer to Complaint)

New York (Grounds for contract termination, Excuse from default)

223 Avenue B LLC v. Subway Real Estate LLC, No. 613065/2020 (N.Y. Sup. Ct. N.Y. Cty. 2020) (Plaintiff-landlord seeks damages for past due rent payments and anticipatory breach of lease agreement by Defendant-tenant, claiming defendant-tenant’s sublessee abandoned premises and left it in poor condition, Plaintiff sent notices of default to Defendant and sublessee, contending Defendant had erroneously claimed it was excused from performance by force majeure events (pandemic and government shut down orders); Defendant answers, asserts affirmative defenses, and counterclaims that pandemic and government orders constitute “casualties” suspending defendant’s obligations pursuant to force majeure clause and triggering rent abatement; Plaintiff answers and admits force majeure clause “provides, in part, that in the event of a casualty, the defendant’s obligation to pay rent is abated” but appears to disagree when such rent abatement privilege is triggered.) (11/13/2020 Complaint; 11/17/2020 Amended Complaint; 12/28/2020 Answer; 01/27/2021 Answer, Counterclaims, and Crossclaims; 02/16/2021 Reply to Counterclaims)

850 Third Avenue Owner LLC v. Discovery Commc’ns, No. 654148/2020 (N.Y. Sup. Ct. N.Y. Cty. 2020) (Plaintiff-landlord sues defendant-tenant for unpaid rent after defendant-tenant allegedly overstayed at property once lease expired, arguing State’s COVID-19 restrictions are not “act[s] of disorder” within scope of force majeure clause and did not cause defendant’s inability to move out when lease expired because moving companies were “essential businesses” that operated throughout pandemic; Defendant argues that “shortages of labor” and catchall clauses of force majeure provision extended time available to remove its property from premises because pandemic and government-ordered closures prevented Defendant from removing its property and caused labor shortages among moving companies; Plaintiff moves for summary judgment, arguing “the force-majeure clause in the lease does not apply to governmental restrictions” because government shut-down orders were not unforeseeable when lease was executed and catchall phrase in force majeure clause must be read narrowly; Defendant opposes Plaintiff’s motion for summary judgment arguing, inter alia, (i) pandemic is an “Act of God” and (ii) consistent with the December 16, 2020 JN Contemporary opinion, application of esjudem generis principle instructs that the pandemic is encompassed within the force majeure catch-all clause; Defendant argues (i) force majeure clause by its terms does not excuse rent payment obligations, (ii) government orders proximately caused Defendant to breach, not pandemic, and (iii) force majeure clause in JN Contemporary is distinguishable; Court denies Plaintiff-landlord’s Motion for Summary Judgment, finding “substantial questions of fact,” including (i) whether COVID-19 pandemic triggered the force majeure provision of the lease (citing JN Contemporary Art LLC v. Phillips Auctioneers LLC); (ii) whether movers were precluded by New York State Executive Orders from operating March 20, 2020 to May 18, 2020, and beyond; and (iii) the extent to which the Defendant-tenant could and did utilize the demised premises during the relevant time period.) (08/31/2020 Complaint; 10/23/2020 Answer and Counterclaims; 12/14/2020 Plaintiff’s Memorandum of Law ISO Motion for Summary Judgment, or Alternatively, Dismissing Defendant’s Counterclaims; 01/06/2021 Reply to Counterclaims; 02/04/2021 MOL Opposing MSJ and to Dismiss Counterclaims; 03/04/2021 Reply in Further Support of MSJ and Dismissal; 03/22/2021 Order Denying Plaintiff’s Motion for Summary Judgment; 03/24/2021 Notice of Appeal)

1060 Bedford Retail LLC v. Mi Casita Inc. No. 503934/2021 (N.Y. Sup. Ct. Kings Cty. 2021) (Plaintiff-landlord seeks to hold Defendant-Tenant in default for failure to meet its rental obligations under Lease Agreement; Defendant did not file responsive pleading; parties entered into a settlement agreement.) (02/18/2021 Complaint; 05/18/2021 Stipulation of Settlement)

Adam Sanders, et al. v. Edison Ballroom LLC, No. 654992/2020 (N.Y. Sup. Ct. N.Y. Cty. 2020) (Plaintiffs seek return of deposit from Defendant-ballroom, which was supposed to host Bat Mitzvah celebration, on basis that Governor’s Executive Orders (the Orders) made performance illegal and/or impossible and Orders are force majeure events; Defendant denies contract should be terminated and the deposit returned, instead claiming contract obligations should be suspended; Plaintiffs move for summary judgment, arguing Defendant is trying to rewrite the contract; Defendant replies, arguing Court has power to rewrite contract because of a fundamental change in circumstances; Court grants Plaintiff’s Motion for Summary Judgment, holding it is “undisputed that the Agreement’s performance, including after the agreement to postpone Event was made, was illegal or impossible as a result of ‘acts of a governmental authority,’ such as the Governor’s Executive Orders;” as a result, Plaintiff met its burden and was entitled to a refund of the deposit based on the plain language of the contract.) (11/18/2020 Complaint; 12/07/2020 Answer and Counterclaim; 01/06/2021 Plaintiffs’ Motion for Summary Judgment; 01/26/2021 Defendant’s Opposition to and Cross-Motion for Summary Judgment; 02/01/2021 Plaintiffs’ Reply; 02/02/2021 Defendant’s Reply; 03/22/2021 Order Granting Plaintiff’s Motion for Summary Judgment; 04/08/2021 Stipulation of Discontinuance with Prejudice)

Alexandria Gayle Williams v. 4545 East Coast LLC, No. 713984/2020 (N.Y. Sup. Ct. Queens Cty. 2020) (Plaintiff apartment tenant seeks rescission of lease, arguing pandemic and Governor’s Orders destroyed all personal and economic value in the lease and Court should excuse performance pursuant to an “Implied Force Majeure” clause; Defendant broadly denies Plaintiff’s claims as “without basis in law” and counterclaims for breach of contract; Defendant moves for summary judgment, arguing, inter alia, that allowing Court to write in an “implied” force majeure clause would “change the face of contract law across all spectrums of law as we know it.”) (08/25/2020 Complaint; 10/09/2020 Answer with Counterclaims; 10/28/2020 Answer to Defendant’s Counterclaims; 01/21/2021 Defendant’s Motion for Summary Judgment; 04/14/2021 Stipulation of Settlement)

Anvil Mechanical Inc. v. GCT Constructors JV, No. 654448/2020 (N.Y. Sup. Ct. N.Y. 2020) (Plaintiff subcontractor seeks breach of contract damages against Defendant contractor, arguing contractor wrongfully terminated subcontract, subcontractor could not safely work in the absence of pandemic safety protocols, and pandemic is a force majeure event; Defendant contractor denies pandemic is a force majeure event and counterclaims that subcontractor materially breached the subcontract.) (09/15/2020 Complaint; 01/28/2021 Answer and Counterclaim; 03/17/2021 Reply to Counterclaims)

Bath & Body Works LLC v. 304 PAS Owner LLC Successor, No. 651836/2020 (N.Y. Sup. Ct. N.Y. Cty. 2020) (Plaintiff seeks rescission of commercial property lease and declaration the lease is unenforceable because COVID-19 and related government mandated shutdowns frustrated the purposes of the lease; Defendant argues plaintiff tenant recognized a variety of “force majeure” events might occur, including those forming bases of plaintiff’s claims, but specifically agreed in a lease rider that such events would only permit delayed performance, not excuse payment of any monetary sums due under lease and its supplemental rider.) (06/08/2020 Complaint; 06/29/2020 Answer and Counterclaims; 8/19/2020 Reply to Counterclaims)

Broadway/72nd Street Assocs. II LLC v. Bloomingdale’s LLC, No. 653760/2020 (N.Y. Sup. Ct. N.Y. Cty. 2020) (Plaintiff-landlord sues Bloomingdale’s (defendant-tenant) and Macy’s (defendant-guarantor) for Bloomingdale’s failure to pay fixed rent and additional rental payments under lease agreements, which specifically provides “Tenant shall under no circumstances fail or refuse to pay any installments of fixed annual rent or any additional rent;” Plaintiff-landlord sues Macy’s for failure to satisfy its obligations under the guarantee agreement, which provided that Macy’s guaranteed to plaintiff-landlord “the full and timely payment” of all rent under Bloomingdale’s lease; Bloomingdale’s and Macy’s argue that their obligations under lease and guarantee agreements were suspended under the doctrines of frustration of purpose and impossibility of performance due to COVID-19 forcing Bloomingdale’s to close their store; Plaintiff-landlord files motion for summary judgment on its claims, as well as defendants’ counterclaims, arguing the lease is clear and unequivocal that force majeure events would not suspend Bloomingdale’s obligations to pay rent under the lease, and financial difficulties arising out of COVID-19 pandemic and other government shut-down orders do not excuse contractual performance under doctrines of frustration of purpose and impossibility; Parties stipulate discontinuance of suit with prejudice.) (08/12/2020 Complaint; 09/14/2020 Answer and Counterclaims; 10/20/2020 Plaintiff’s Motion for Summary Judgment; 12/28/2020 Stipulation of Discontinuance with Prejudice; 12/29/2020 Order denying Motion for Summary Judgment as moot, action discontinued with prejudice)

Buonincontro v. Edison Ballroom LLC, No. 654844/2020 (N.Y. Sup. Ct. N.Y. Cty. 2020) (Plaintiffs seek return of money deposit from Defendant-ballroom, arguing that performance of their indefinitely-delayed wedding celebration was made illegal, impractical, and impossible by Governor’s Executive Orders and force majeure clause expressly requires the full return of the deposit; Defendant denies contract should be terminated and deposit returned, instead claiming contract obligations should be suspended; Plaintiff moved for an order entering default judgment; Defendant cross-moved for an order vacating default.) (09/30/2020 Complaint; 11/19/2020 Notice of Default Judgment; 12/29/2020 Notice of Cross-Motion for Order Vacating Default; 12/29/2020 Answer and Counterclaim; 01/11/2021 Plaintiff’s Affirmation in Further Support of Motion for Default Judgment and in Opposition to Cross-Motion; 01/12/2021 Defendant’s Affirmation in Reply)

Change Your Life LLC v. 9E16 by 1771 Holdings LLC, No. 157335/2020 (N.Y. Sup. Ct. N.Y. Cty. 2020) (Plaintiff-fitness center seeks declaration that pandemic is a force majeure event excusing its obligation to pay rent to defendant-landlord during pandemic; Plaintiff seeks to enjoin Defendant from terminating lease or possessing property, arguing Governor’s Orders prohibit proceedings for nonpayment of rent; Defendant argues Plaintiff’s injunctive relief should be denied because, inter alia, Defendant did not initiate a proceeding in violation of the Governor’s Orders; Defendant denies Plaintiff’s claim that pandemic is a force majeure event and seeks damages and other relief; Plaintiff broadly denies Defendant’s counterclaims; Court denied OTSC as moot after Plaintiff withdrew request for injunction at hearing.) (09/11/2020 Complaint; 09/11/2020 Plaintiff’s Memo in Support of Order to Show Cause; 10/02/2020 Defendant’s Memo in Opposition to Order to Show Cause; 10/06/2020 Answer and Counterclaims; 10/26/2020 Plaintiff’s Reply to Counterclaims; 11/10/2020 Order Denying OTSC as moot)

Cinema Square LLC v. Jeffries Loancore LLC, No. 650645/2021 (N.Y. Sup. Ct. N.Y. Cty. 2021) (Plaintiff-owner of premises seeks declaration and injunction stopping creditors from foreclosing property, arguing, inter alia, that “common law force majeure” excused payment obligations because pandemic and related government orders inhibited Plaintiff’s tenant’s operation of movie theater; Defendants argue that TRO should be denied because, inter alia, loan agreement does not contain a force majeure clause and New York does not have a “common law doctrine of force majeure” and risk that tenant does not pay is the borrower’s risk, not lender’s; Court denies motion for TRO/PI holding on this basis; Plaintiff files notice of discontinuance, without prejudice.) (01/28/2021 Complaint; 01/28/2021 MOL ISO TRO and PI; 02/03/2021 Defendants’ MOL in Opposition to TRO; 02/04/2021 Plaintiffs’ Affirmation in Further Support of TRO; 02/08/2021 Defendants’ Supplemental MOL in Opposition to TRO; 02/11/2021 Plaintiffs’ Reply in Further Support of TRO; 02/11/2021 Decision and Order re TRO; 02/19/2021 Notice of Discontinuance)

D2 Mark LLC v. OREI VI Investments LLC, No. 652259/2020 (N.Y. Sup. Ct. N.Y. Cty. 2020) (Hotel group seeks, inter alia, to preliminarily enjoin junior creditor from foreclosing after hotel group missed one payment obligation due to COVID-19, arguing loan agreement expressly excused defaults occurring “in connection with” a force majeure event; Court enjoins junior creditor from holding a sale before July 23 and orders junior creditor to issue new, commercially reasonable notice of sale.) (06/06/2020 Complaint; 06/23/2020 Decision and Order on Plaintiff’s Order to Show Cause; 08/03/2020 So-Ordered Stipulation Discontinuing the Action with Prejudice)

DHG Mgmt. Co. v. French Partners LLC, et al., No. 654319/2020 (N.Y. Sup. Ct. N.Y. Cty. 2020) (Plaintiff-tenant seeks breach of contract damages against Defendant-landlord for preventing access to property during Government-ordered lockdown, arguing that access was expressly warranted and excepted from force majeure clause; Defendant moves to dismiss, arguing Governor’s Orders were beyond its control, they mandated reductions in persons allowed on premises, and Defendant allowed access to the property; Court denies dismissal of breach of contract count and grants dismissal of conversion count; Defendant moves for summary judgment arguing Plaintiff’s access to the property remained unfettered through their tenancy, including during pandemic, and while Governor’s Orders may have limited the amount of people allowed on the property at one time, Defendant never denied Plaintiff’s access; Court denies Defendant’s motion for summary judgment, stating factual disputes remain regarding, inter alia, the access provided to Plaintiff.) (09/09/2020 Complaint; 10/05/2020 Notice of Motion to Dismiss and Affirmation in Support of Motion to Dismiss; 10/12/2020 Affirmation in Opposition to Motion to Dismiss; 10/21/2020 Order Denying in Part Motion to Dismiss; 11/18/2020 Answer with Counterclaims; 01/06/2021 Defendants’ Motion for Summary Judgment; 01/12/2021 Plaintiff’s Cross-Motion Per CPLR § 3012(d)); 01/28/2021 Order Denying Summary Judgment)

East 16th Street Owner LLC v. Union 16 Parking LLC et al, No. 653839/2020 (N.Y. Sup. Ct. N.Y. Cty. 2020) (Defendants operate a parking garage at a building owned by Plaintiff; Plaintiff sued Defendant for unpaid rent since April 1, 2020 through November 1, 2020 arguing the lease does not permit Defendants to withhold rent under any circumstances and does not contain a force majeure provision; Defendants cite the ongoing pandemic as the reason they have been unable to pay rent and argues the doctrine of frustration of purpose applies; following the pleadings and an order to show cause directing Defendants to pay rent, Plaintiff moves for dismiss Defendants’ affirmative defendants and for summary judgment on the grounds that there is no issue of fact that Defendants do not have any viable defense to the failure to pay the rent and additional rent they contractually agreed to pay; the Court grants Plaintiff’s motion and notes “there is no doubt that the ongoing pandemic has caused harmful effects on all types of businesses in New York City;” however, the downturn in the tenant’s business does not raise an issue of fact to defeat summary judgment—particularly where, as here, Defendants were permitted to keep their parking garage open throughout 2020.) (08/14/2020 Complaint; 10/09/2020 Answer; 11/09/2020 Plaintiff’s OTSC Directing Defendants Pay Rent Pendente Lite; 11/12/2020 Court Order Granting Plaintiff’s OTSC; 11/12/2020 Plaintiff’s Motion to Dismiss Defendants’ Affirmative Defenses and for Summary Judgment; 12/09/2020 Defendants’ Opposition to Plaintiff’s Motion to Dismiss and for Summary Judgment; 12/15/2020 Plaintiff’s Reply Brief; 12/17/2020 Court Order Directing Defendants Pay Rent Pendente Lite; 01/15/2021 Court Order Granting Plaintiff’s Motion to Dismiss and for Summary Judgment; 01/18/2021 Notice of Appeal for Order Directing Defendants Pay Rent Pendente Lite; 02/08/2021 Notice of Entry of Money Judgment in Favor of Plaintiff; 02/16/2021 Notice of Appeal for Order Granting Plaintiff’s Motion to Dismiss and for Summary Judgment)

Graphnet, Inc. v. 30 Broad Street Venture, LLC, No. 151622/2021 (N.Y. Sup. Ct. N.Y. Cty. 2020) (Plaintiff seeks declaration that the “force majeure” clause of its contract with Defendant “justifies Plaintiff’s not taking possession of the Premises and/or paying the rent under the Lease;” Defendant opposed the motion and cross-moved to dismiss Plaintiff’s complaint, arguing, among other things, that the Lease contains two force majeure clauses: but each provides that Plaintiff’s obligation to pay rent is not in any event excused.) (02/19/2021 Complaint; 02/19/2021 Plaintiff’s Application for Preliminary Injunction and TRO; 02/26/2021 OTSC; 03/11/2021 Defendant’s Cross-Motion to Dismiss Complaint and Opposition to Plaintiff’s Application for Preliminary Injunction and TRO; 03/31/2021 Plaintiff’s Reply Brief and Opposition to Defendant’s Cross-Motion to Dismiss; 04/30/2021 Defendant’s Reply Brief)

Hugo Boss Retail, Inc. v. A/R Retail, LLC, No. 655166/2020 (N.Y. Sup. Ct. N.Y. Cty. 2020) (Defendant Hugo Boss Retail, Inc. (“Hugo Boss” or “Tenant”) operates a retail store at The Shops at Columbus Circle in Manhattan under a lease agreement with Plaintiff-Landlord A/R Retail LLC. Plaintiff seeks to recover past-due rent and Defendant seeks, among other things, rescission or reformation of lease due to frustration of purpose or impossibility of performance and termination of the lease. Plaintiff moved for partial summary judgment against Hugo Boss on all claims asserted by and against it, other than Defendant’s claim to recover for alleged pre-pandemic overcharges. Plaintiff seeks a determination that the force majeure clause in the parties’ lease is not applicable because it specifically provides that Tenant is not excused from paying its rent in the event of an force majeure event, including an “order . . . by any governmental authority;” Defendant opposes on the ground that its pandemic-related claims and defenses raise fact issues that cannot be resolved at this early stage; Court grants summary judgment reasoning that (i) the pandemic has not frustrated the purpose of the lease as an evolving set of capacity restrictions and government shut down orders have reduced (but not eliminated) Hugo Boss’s ability to generate revenue from its retail operation; and (ii) pursuant to the terms of the force majeure clause, Hugo Boss may be excused by a force majeure event from a delay in meeting its obligations under the Lease other than the obligation to pay rent and other charges.) (10/09/2020 Complaint; 11/12/2020 Answer; 11/25/2020 Amended Corrected Complaint; 12/14/2020 Answer with Counterclaims; 12/22/2020 Defendant’s Motion for Partial Summary Judgment; 01/04/2021 Plaintiff’s Reply to Counterclaims; 02/05/2021 Plaintiff’s Opposition to Summary Judgment; 03/10/2021 Defendant’s Reply Brief; 05/19/2021 Order Granting Defendant’s Motion for Partial Summary Judgment)

Iluka Resources Limited v. Chemours International Operations Sarl, et al., No. 653398/2020 (N.Y. Sup. Ct. N.Y. Cty. 2020) (Ore supplier seeks, inter alia, breach of contract damages and declaratory relief, arguing COVID-19 pandemic is not among specified force majeure “events” and did not actually prevent buyer from accepting and paying for shipments of materials; Buyer moves to dismiss, arguing, inter alia, its purchase obligation is excused pursuant to contract’s “Excused Performance” (force majeure) clause because pandemic diminished its customers’ need for ore; Supplier argues that Buyer failed to establish that customers’ diminished demand for ore excuses its obligation to take delivery; Buyer replies that its performance is excused pursuant to the clause because pandemic is an “element[] of nature” that “hindered” its “ability to take or pay for Material;” Court denies Defendant’s Motion to Dismiss, reasoning parties’ Supply Agreement does not require escalating an unresolved dispute and agreeing to engage in mediation in lieu of filing a lawsuit; remainder of Motion to Dismiss denied as moot because Plaintiff intends to file an Amended Complaint.) (08/06/2020 Complaint; 10/05/2020 Motion to Dismiss and Memorandum of Law in Support of Motion to Dismiss; 10/19/2020 Memorandum in Opposition to Motion to Dismiss; 11/02/2020 Reply Memorandum in Support of Motion to Dismiss; 03/22/2021 Order Denying Defendant’s Motion to Dismiss; 04/02/2021 Amended Complaint; 04/22/2021 Answer to Amended Complaint; 05/03/2021 Defendants’ OTSC to Compel Production of Documents)

Information Services Group Inc. v. Penton Learning Systems LLC, No. 160890/2020 (N.Y. Sup. Ct. N.Y. Cty. 2020) (Plaintiff seeks refund of fee paid for in-person sponsorship event that was cancelled because of COVID-19, arguing that a full refund was contractually required in event of force majeure event and pandemic is within scope of force majeure clause; Plaintiff discontinues proceeding.) (12/15/2020 Complaint; 12/24/2021 Notice of Discontinuance)

Ling & Yin Holding Corp. v. Ma & Tang Mgmt LLC, No. 706139/2021 (N.Y. Sup. Ct. Queens Cty. 2021) (Plaintiff sued Defendant for Defendant’s breach of a real estate contract, whereby Defendant allegedly withheld Plaintiff’s deposit to purchase certain property. Plaintiff alleges that Defendant’s assertions of force majeure and frustration of purpose and impossibility was done in a “bad faith attempt to exonerate itself from its contractual obligations;” Defendant denies the allegations.) (03/17/2021 Complaint; 04/22/2021 Answer)

Little Fish Corp. v. Paramount Leasehold LP, No. 150164/2021 (N.Y. Sup. Ct. N.Y. Cty. 2021) (Plaintiff-tenant files Complaint and motion seeking a Yellowstone Injunction preventing defendant-landlord from terminating the parties’ commercial lease due to plaintiff’s failure to make rent payments and to “continuously operate” its business, arguing lease expressly excuses plaintiff’s obligations in event of “restrictive governmental laws and regulations, riots, insurrections, or other reason of like nature”; Defendant argues that rent payment obligations are specifically carved out of force majeure clause and Governor’s Orders were not force majeure events; Plaintiff asserts affirmative defense that “pandemic and associated governmental orders constitute” a casualty or force majeure event pursuant to the contract; Parties discontinue proceeding.) (01/07/2021 Complaint; 01/07/2021 Plaintiff’s Memorandum of Law in support of Motion for Yellowstone Injunction; 01/19/2021 Defendant’s MOL in Opposition and Cross-Motion; 01/28/2021 Answer and Counterclaims; 02/11/2021 Reply to Counterclaims; 04/19/2021 Stipulation of Discontinuance with Prejudice)

N888JK Ltd. v. Equiom (Isle of Man) Ltd., No. 652122/2020 (N.Y. Sup. Ct. N.Y. Cty. 2020) (Plaintiff seeks declaratory relief that it may keep a deposit paid pursuant to a used aircraft purchase agreement on grounds that defendant unilaterally terminated agreement; defendant asserts COVID-19 as a force majeure event permitting termination and demanded return of deposit.) (05/28/2020 Complaint; 07/22/2020 Answer with Counterclaims; 8/11/2020 Reply Counterclaims)

NY Veterinary Operating P.C. v. Bricks & Nails LLC, No. 701304/2021 (N.Y. Sup. Ct. Queens Cty. 2021) (Plaintiff-tenant seeks, inter alia, declaration that lease’s force majeure provision excused its untimely option to renew lease because “the COVID-19 pandemic, and its associated governmental restrictions” hindered its ability to exercise the renewal option; Defendant generally denies all allegations relating to force majeure.) (01/20/2021 Complaint; 02/26/2021 Answer)

Performline Inc. v. Apogee Events Inc., No. 650217/2021 (N.Y. Sup. Ct. N.Y. Cty. 2021) (Plaintiff sues for defendant’s failure to refund plaintiff’s deposit, which was paid to defendant in exchange for defendant’s agreement to host an event for plaintiff at defendant’s facility in May 2020, arguing parties’ contract provides that if defendant was unable to host an event due to a force majeure event, such as governmental shut down orders or an act of God, then defendant would refund plaintiff’s deposit in full within 60 days; Plaintiff moves for default judgment, which Court grants; Defendant moves to vacate default judgment.) (01/12/2021 Complaint; 03/11/2021 Affirmation in Support of Motion for Default Judgment; 04/19/2021 Order Granting Plaintiff’s Motion for Default Judgment; 04/27/2021 Defendant’s MOL ISO OTSC to Vacate Default Judgment; 04/28/2021 Executed Order to Show Cause Why Default Should Not Be Vacated)

Roslyn Events Corp. v. Ber Dur Realty Corp., No. 607968/2020 (N.Y. Sup. Ct. Nassau Cty. 2020) (Tenant seeks declaratory relief and to enjoin landlord from holding tenant in default of commercial lease, arguing COVID-19 pandemic and New York City regulations triggered force majeure clause and excused rent payment obligations.) (08/05/2020 Complaint; 08/05/2020 Order to Show Cause)

Schulte Roth & Zabel LLP v. Metropolitan 919 3rd Avenue, No. 655632/2020 (N.Y. Sup. Ct. N.Y. Cty. 2020) (Plaintiff tenant seeks breach of contract damages and a declaration it is entitled to rent abatement because pandemic and/or Governor’s Orders constitute force majeure events; Defendant moves to dismiss complaint, arguing lease specifically provides force majeure events will not affect tenant’s obligations to pay rent, tenant cannot demonstrate alleged force majeure events “prevented or delayed” its ability to pay rent, and pandemic is not a force majeure event because it does not resemble the listed force majeure events (strikes, labor troubles, accidents, laws, governmental preemption in connection with a national emergency, Legal Requirements, or conditions of supply and demand which have been or are affected by war); Plaintiff argues rent abatement provision is triggered by force majeure events, and force majeure event need only have inhibited Plaintiff’s ordinary conduct of business; Defendant replies that Plaintiff’s interpretation of rent abatement clause is grammatically strained and alleged force majeure events do not trigger the abatement clause.) (10/23/2020 Complaint; 01/08/2021 Defendant’s MOL ISO Motion to Dismiss; 02/12/2021 Plaintiff’s MOL in Opposition to Motion to Dismiss; 03/05/2021 Defendant’s Reply in Further Support of Motion to Dismiss)

Simpson Thacher & Bartlett LLP v. VBGO 425 Lexington LLC, No. 653415/2020 (N.Y. Sup. Ct. N.Y. Cty. 2020) (Plaintiff/tenant seeks a declaration that it is entitled to rent abatement under force majeure provision of commercial lease, alleging it was forced to vacate its premises for a period of sixty (60) days due to a government order and a “national or other public emergency”; Parties stipulate to discontinue the action, with prejudice.) (07/27/2020 Complaint; 8/19/2020 Reply to Counterclaims; 11/19/2020 Stipulation Discontinuing Action with Prejudice)

Trustees of Columbia Univ. v. Edison Ballroom LLC, No. 156789/2020 (N.Y. Sup. Ct. N.Y. Cty. 2020) (Plaintiff seeks to recover deposit made to Defendant event space provider, arguing contract provides deposit must be refunded if a force majeure event occurs and Governor’s Orders prohibiting non-essential gatherings were force majeure events because the Orders prevented the contracted event from occurring; Defendant argues contract should simply be suspended until performance is possible; Plaintiff files summary judgment motion seeking a full refund of its deposit, arguing pandemic and Governor Cuomo’s “PAUSE plan” fall within scope of force majeure clause which provides defendant “shall promptly refund 100 percent of all payments made by [plaintiff]” in event of a force majeure event, including circumstances beyond the parties’ reasonable control and governmental authority orders; Defendant again argues Court should suspend both parties’ contractual obligations “during the period of emergency” because pandemic was beyond parties’ possible contemplation.) (08/26/2020 Complaint; 9/28/2020 Answer with Counterclaims; 10/14/2020 Reply to Counterclaims; 01/07/2021 Plaintiff’s MOL ISO Motion for Summary Judgment); 01/28/2021 Defendant’s MOL in Opposition to Motion for Summary Judgment and Cross-Motion for Summary Judgment; 02/10/2021 Defendant’s MOL in Reply to Plaintiff’s Opposition to Defendant’s Cross-Motion for Summary Judgment)

Valentino U.S.A. Inc. v. 693 Fifth Owner LLC, No. 652605/2020 (N.Y. Sup. Ct. N.Y. Cty. 2020) (Plaintiff/tenant seeks a declaration that (i) commercial property lease has been frustrated by COVID-19 pandemic and related Executive Orders or (ii) in the alternative, its performance under lease agreement has been rendered impossible; Defendant/landlord seeks dismissal of Complaint on grounds that lease contains a clause allocating to plaintiff/tenant risk of closure due to “restrictive governmental laws or regulations … acts of God … or other reason of a similar or dissimilar nature”; Court grants motion to dismiss, ruling contract expressly allocated risk to Plaintiff because the allocation of risk clause was drafted broadly and encompasses pandemic, notwithstanding pandemic was not specifically enumerated; Plaintiff files notice of appeal.) (06/21/2020 Summons and Complaint; 07/27/2020 Defendant’s Memorandum of Law in Support of Motion to Dismiss; 9/14/2020 Plaintiff’s Opposition to Motion to Dismiss; 09/28/2020 Defendant’s Reply Memorandum of Law in Support of Motion to Dismiss; 01/27/2021 Order Granting Motion to Dismiss; 02/17/2021 Notice of Appeal; 03/31/2021 Notice of Appeal with Supporting Documents; 04/12/2021 Affirmation in Opposition; 04/19/2021 Affirmation in Reply; 05/04/2021 Order)

Victoria’s Secret Stores v. Herald Square Owner LLC, No. 651833/2020 (N.Y. Sup. Ct. N.Y. Cty. 2020) (Plaintiff seeks to annul commercial property lease under doctrines of frustration of purpose and impossibility resulting from COVID-19 and related government mandated shutdowns; Defendant argues lease explicitly allocated risk of plaintiff tenant being unable to occupy the premises in the absence of a force majeure clause in the lease; Defendant seeks summary judgment of Plaintiff’s counts on the same grounds; Plaintiff opposes summary judgment, arguing absence of a force majeure clause does not preclude frustration of purpose and impossibility excuses; Defendant argues in further support of summary judgment that lease allocated risk for this type of harm, and precise cause of harm is irrelevant; Court grants Defendant’s motion for summary judgment in its entirety, finding parties’ lease was drafted in a broad and encompassing manner and, while lease did not enumerate government law as a specific cause, lease allocated risk for this type of harm to Plaintiff; Plaintiff appeals summary judgment; Defendant moves for partial summary judgment on its breach of contract counterclaims, arguing Court’s ruling resolved Plaintiff’s affirmative defenses of frustration, impossibility, and unjust enrichment and Plaintiff’s remaining boilerplate defenses fail; Plaintiff opposes Motion for Partial Summary Judgment, arguing Defendant’s termination amounts to a de facto eviction, expressly prohibited by Executive Order, and liquidated damages provision in contract is an unenforceable penalty; Defendant argues in Reply that Executive Orders do not prohibit landlords from serving lease termination notices and it is not estopped from enforcing the liquidated damages clause.) (06/08/2020 Complaint; 06/29/2020 Answer and Counterclaims; 06/29/2020 Defendant’s Memorandum of Law in Support of Motion for Summary Judgment; 07/29/2020 Plaintiffs’ Memorandum of Law in Opposition to Motion for Summary Judgment; 08/13/2020 Defendant’s Reply Memorandum of Law in Further Support of Defendant’s Motion for Summary Judgment; 8/19/2020 Reply to Counterclaims; 01/07/2021 Order Granting Motion for Summary Judgment; 02/05/2021 Notice of Appeal; 02/16/2021 Defendant’s MOL ISO Motion for Partial Summary Judgment on Defendant’s Counterclaims; 03/18/2021 Plaintiff’s MOL in Opposition to Defendant’s Motion for Partial Summary Judgment; 04/01/2021 Defendant’s Reply MOL in Further Support of its Motion for Partial Summary Judgment on its Counterclaims)

Victoria’s Secret Stores, LLC v. Herald Square Owner LLC, No. 2021-00649 (1st Dept. Feb. 25, 2021) (02/25/2021 Notice of Appeal)

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