Class Action & MDL Roundup – Spring 2021

defendants’ motion to dismiss in part because under the contract of carriage, the flight cancellation at issue constituted a schedule change or irregular operation and not a force majeure event. Courts have also issued rulings unrelated to conditions of carriage that may be helpful to defendants. For example, in Fensterer v. Capital One Bank , the court dismissed a putative class action asmoot because the defendant produced evidence showing that it had processed a full refund to the plaintiff, and in Ide , the court found that the Airline Deregulation Act limits recovery to compensatory damages. ƒ Steady Streak of Dismissals for PPP Agents M&M Consulting Group LLC v. JP Morgan Bank N.A., et al ., No. 8:20- cv-01318 (C.D. Cal.) (Jan. 6, 2021). Judge Selna. The Central District of California continued the consistent trend of federal courts dismissing claims related to agent fees under the Paycheck Protection Program (PPP). The plaintiff alleged that the defendant banks failed to pay fees to agents who assisted small businesses in acquiring federal loans under the PPP. The court held that “absent an agreement between agent and lender … lenders are not required to pay agent fees under the text of the CARES Act or its implementing regulations.” ƒ Coronavirus Vaccine Case Survives Motion to Dismiss McDermid v. Inovio Pharmaceuticals Inc ., No. 2:20-cv-01402 (E.D. Pa.) (Feb. 16, 2021). Judge Pappert. Denying motion to dismiss. While many coronavirus securities class actions alleging falsity based on statements expressingpositive outlooks despite the pandemic have struggled to survive motions to dismiss, the plaintiffs earned a victory at the pleading stage when the court denied the defendant’s motion to dismiss. The plaintiff alleged that the companymanipulated its share price by overexaggerating its ability to create a coronavirus vaccine. The company publicly stated that it had“constructed”a vaccine in three hours, when it had only “designed” a vaccine in that amount of time. The court found that the plaintiff sufficiently pleaded loss causation and an inference of scienter and that the statements were misleading. The result gives plaintiffs a blueprint for succeeding in the otherwise- unsuccessful realm of pandemic-related securities claims. n