E-FILED; Baltimore County Circuit Court Docket: 5/15/2020 1:19 PM; Submission: 5115/2020 1:19 PM
IN THE CIRCUIT COURT OF MARYLAND FOR BALTIMORE COUNTY
CORPORATE EVENTS, INC. 100 International Drive Floor Baltimore, Maryland 21202 Case No.: C-03-CV-20-002139 Plaintiff, VS.
AREPII SA HOTEL, LLC, DBA: SHERATON ATLANTA HOTEL 165 Courtland Street NE Atlanta, Georgia 30303
Serve on: Corporation Service Company 40 Technology Pkwy South #300 Norcross, Georgia 30092
Defendant.
COMPLAINT
Plaintiff, Corporate Events, Inc. ("Plaintiff' or "Corporate Events", unless otherwise noted), by and through their attorneys, Shawe Rosenthal LLP and Lazare Potter Giacovas &
Moyle LLP, hereby submit this Complaint against Defendant, AREPII SA Hotel, LLC, DBA:
Sheraton Atlanta Hotel ("Defendant" or "Sheraton").
NATURE OF THE CASE
1. This case arises out of the necessity of Plaintiff, Corporate Events, Inc.
("Corporate Events") to cancel the 2020 annual convention for its sister company, OPTAVIA
LLC ("OPTAVIA") scheduled for July 23-26, 2020 in Atlanta, Georgia (and to which it was expecting approximately 10,500 attendees), due to the COVID-19 pandemic currently raging throughout the United States and other countries around the world. COVID- 19, also referred to as the coronavirus, which surfaced in a Chinese seafood and poultry market late last year,
has spread to at least 213 countries and territories, killing more than 300,000 people so far and
sickening more than 4.4 million people in a matter of weeks. The World Health Organization
("WHO") has declared this situation a pandemic.
2. As a result of this global pandemic and the complete uncertainty surrounding
when the virus will reach its peak and the curve will begin to flatten in the U.S., when it will
be safe for social distancing restrictions to be lifted, when the economy can begin to re-open,
and whether and when large gatherings will again be allowed to safely take place, putting
together a convention with 10,500 attendees in July—an event whose size and scale takes
months of planning by all parties—is clearly impossible.
3. Because of this impossibility, and in order to protect the health and safety of
the approximately 10,500 attendees from the United States and Asia Pacific regions that were
expected to attend the OPTAVIA annual convention, Corporate Events made the difficult
decision to cancel the event.
4. As such, pursuant to the clear terms of the force majeure clause in its contract
with Defendant, which specifically requires notice of cancellation within 10 days of when a
party becomes aware of a force majeure, on March 20, 2020, Corporate Events notified
Defendant of the cancellation (within 10 days of the WHO's determination on March 11, 2020
that the world was facing a pandemic—the likes of which has not been seen since 1918, when
the Spanish flu pandemic killed fifty million people worldwide over two years and three
waves).
2 5. The cancellation notice offered a compromise to Defendant to extend the 10- day notice requirement to May 1, 2020 to allow the parties time to see the extent of the pandemic. On March 23, 2020, Defendant agreed to the extension.
6. On April 3, 2020, Plaintiff sent another notice to Defendant confirming that the convention needed to be canceled due to the pandemic. Based upon then-current guidance
(and even more so now), it would be both unsafe and impossible to host the convention in July.
7. In response, Defendant said that the force majeure clause was not applicable and recited the contract's cancellation provision, noting that Plaintiff owed 75% of the total room profits—essentially holding Plaintiff in alleged anticipatory breach. This demanded amount totals $95,156.25 in purported "damages" as a result of Plaintiff's necessary and timely invocation of the force majeure clause and cancellation of this year's convention due to the declaration by the WHO of a covered event. Adding insult to injury, Sheraton has imposed this unconscionable cancelation fee despite the fact that the necessary cancellation for 2020 is just one year of an eight-year contractual commitment (until the year 2027) Plaintiff made to hold its annual conventions at the Sheraton.
8. As a direct result of COVID-19, ninety-seven percent of U.S. citizens have, at some point, been under stay-at-home orders since early 2020, including the residents of
Maryland and Georgia, and large gatherings have been halted nearly nation-wide. Many State and local jurisdictions continue to enforce those stay at home orders. The Democratic National
Convention has been rescheduled from July to August of this year. New York's Public Theatre has cancelled its entire summer season of Shakespeare In The Park, a New York City tradition for more than 60 years and which runs from late June through August each year. San Francisco
Pride has cancelled their 50" anniversary LGBTQ+ Pride celebrations scheduled for June 27-
3 28. The Edinburgh International Festival, which has been held in the Scottish city every year since 1947, has been canceled because of the coronavirus. So has the Edinburgh Festival
Fringe. Both were scheduled for August 2020. Wimbledon, which was scheduled for June 29
through July 12 will not be held in 2020. That tournament, which is the oldest tennis Grand
Slam event, had previously been canceled only twice, during World War I and World War II.
And Tokyo has postponed the 2020 Olympic Games, scheduled to begin in late July, until
summer 2021—the Olympics have only been canceled three times in its history, once due to
World War I and twice due to World War H. Despite all of this, Defendant believes that the
pandemic is no reason to cancel and that somehow a convention of 10,500 people in Atlanta
in late July can safely go forward.
9. Unless and until a Court determines that the force majeure clause covers the
COVID- 19 pandemic and that Corporate Events had the right to cancel the 2020 convention
with no liability, Corporate Events faces a potential lawsuit by Sheraton for breach of the
contract and recovery of the hotel's purported liquidated damages of $95,156.25 As such,
Corporate Events comes before this Court seeking a Declaratory Judgment declaring that
Corporate Events' cancellation is valid, and the contract is null and void.
PARTIES
10. Plaintiff, Corporate Events, Inc., is a Delaware corporation with its principal
place of business located at 100 International Drive, 18th Floor, Baltimore, Maryland 21202.
11. Defendant, AREPIT SA Hotel, LLC, DBA: Sheraton Atlanta Hotel is a hotel
located in Atlanta, Georgia, registered in the state of Delaware.
4 JURISDICTION AND VENUE
12. This Court has subject-matter jurisdiction over this case because Plaintiff seeks declaratory relief. Md. Code Ann., Cts. & Jud. Proc. § 3-403.
13. This Court has personal jurisdiction over Sheraton because the contract
Defendant entered into with Corporate Events requires that any dispute be brought within the
county in which the Plaintiff is located, which includes the County of Baltimore. Thus,
Defendant has acquiesced to personal jurisdiction. Md. Code Ann., Cts. & Jud. Proc. § 6-103.
14. Venue is proper in this Court becaise the Defendant agreed by contract to venue
in the counties where Plaintiff is located, which includes the County of Baltimore. Md. Code
Ann., Cts. & Jud. Proc. § 6-201(b)
STATEMENT OF FACTS
15. Corporate Events is a wholly-owned subsidiary of Medifast, Inc. ("Medifast"),
a company dedicated to healthy weight loss through the manufacture of meals clinically proven
to aid its customers in shedding pounds quickly, while learning to eat healthier. Corporate
Events is responsible for negotiating, entering into and administering all vendor contracts
necessary for its sister company, OPTAVIA to host certain corporate events each year. These
events include OPTAVIA' s annual convention, the largest event of the year.
16. OPTAVIA, a wholly owned subsidiary of Jason Pharmaceuticals, Inc., is a
health and lifestyle program dedicated to helping its clients learn healthy habits that add to
their quality of life by getting their minds and bodies working together to work for
them. OPTAVIA's proprietary products and programs are based on nearly 40 years of
experience, and have been used by more than 1.5 million clients and recommended by
thousands of health care providers.
5 17. Independent OPTAVIA Coaches ("Coaches") are the lifeblood of the program.
Proven nutrition gets clients where they want to go, and OPTAVIA Coaches make sure that they never go it alone. No matter what each client is facing, their Coach has likely been in their very same shoes and helps to steer each individual to success. OPTAVIA and its Coaches give their clients a feeling of being part of a community of like-minded, like-hearted people who support each other through and through. The annual convention is an extension of this mission.
18. Held each year, the OPTAVIA convention brings Coaches and leaders together to celebrate their achievements and learn additional skills to better their lives and those of their clients. Last year's convention held in Orlando, Florida, attracted an attendance of 11,392 people. The 2020 convention, moved to Atlanta for what was intended to become the convention's new home for the next eight years, was expecting 10,500 attendees from all over the world.
19. The convention was expected to be so large, that Corporate Events had contracted with nine Atlanta hotels to house the attendees and secured the use of the State Farm
Arena (home to Atlanta's basketball team the Hawks, with a 21,000 seat capacity) and the
Georgia World Congress Center ("GWCC") (Atlanta's 3.9 million square foot convention center), for the convention's use.
The Parties' Contract:
20. On October 30, 2019, on behalf of OPTAVIA, Corporate Events signed an
eight-year Group Sales Agreement with Sheraton for the furnishing of hotel rooms for the
OPTAVIA annual conventions beginning this year, July 23-26, 2020, through the 2027 convention (the contract is herein referred to as a "GSA" and attached hereto as Exhibit A, and
fully incorporated by reference herein).
6 21. Should Corporate Events cancel a convention, the GSA provides for cancellation fees equaling a percentage of expected total profits on room bookings as 75 percent for cancellations up to 179 days from arrival; 50 percent for cancellations made between 364 and 180 days prior to arrival; 25 percent for cancellations made between two
years and 365 days from arrival; 15 percent if canceled between two and four years prior to
arrival; and over four years—no cancellation fee (Ex. A, p. 9).
22. The Force Maj eure clause reads as follows:
The performance of this Agreement by either party is subject to termination without liability upon the occurrence of any emergency making it illegal or impossible to provide the facilities or to hold the meeting, such as acts of God, war, pandemic, government regulations, disaster or civil disorder (each, a "Force Majeure Event"). This Agreement may be terminated without liability for any of the above reasons by written notice from one party to the other within ten (10) days of learning of any Force Majeure Event. (Ex. A, p. 8)
23. The language of the force majeure clause, which was drafted by Sheraton and
should therefore be construed against Sheraton, is clear: it requires written notice of
cancellation within ten days of learning of a covered Force Majeure Event. The covered Force
Majeure Event—a global pandemic—was declared by the WHO on March 11, 2020, and nine
days later, on March 20, 2020, after having learned of the existence of the global coronavirus
pandemic, Corporate Events provided the necessary notice to Sheraton (a copy of the Notice
of Cancellation letter is attached hereto as Exhibit B, and fully incorporated by reference
herein).
24. At the time the WHO declared the coronavirus situation a pandemic on March
11, 2020, and Corporate Events provided its timely notice of cancellation, 8,239 people had
already registered to attend the July 23-26 OPTAVIA annual convention.
7 25. Included in the Notice of Cancellation was an offer to extend the cancellation notice deadline to May 1, 2020. On March 23, 2020, Sandra Chambers, the Director of Sales and Marketing for Sheraton, approved the extension.
26. As the number of those who were sickened by COVID-19 increased and the death toll grew dramatically, it was obvious that OPTAVIA could not host their convention.
For these reasons, on April 3, 2020 Corporate Events sent Sheraton a second Notice of
Cancellation letter completely cancelling the 2020 convention as of March 20, 2020 (the second Notice of Cancellation letter is attached hereto as Exhibit C, and fully incorporated by
reference herein).
27. Sheraton emailed receipt of the notice on April 7, 2020. In an April 17, 2020
email, Corporate Events confirmed that they would not need to pay cancellation damages due
to the Force Majeure Event. In response, Sheraton responded on April 23, 2020 stating that
the force majeure clause did not apply and Corporate Events would be liable for damages.
28. Sheraton's callous response ignored the health and safety of not only
OPTAVIA's 10,500 attendees but of the hundreds of workers in Atlanta that would have to
provide services at such a large public gathering amidst the uncertainty and danger of a global
pandemic and demanded full payment of 75 percent of its potential profits.
29. Sheraton should be held to the plain language of its contract and Corporate
Events' invocation of the force maj eure clause should be declared valid.
The COVID-19 Pandemic:
30. Beginning in December 2019, a new virus appeared in the city of Wuhan,
China. What started out as a seemingly isolated event quickly spread and is now killing people
8 in 213 countries and territories and has caused 1/3 of humanity to be placed on some kind of lockdown. What follows is a timeline of the virus' spread:
31. December 31, 2019: Chinese authorities confirmed it had treated dozens of cases of pneumonia of unknown cause in the city of Wuhan. At the time, there was no evidence that the virus was readily spread by humans. Health officials in China said they were monitoring it to prevent the outbreak from developing into something more severe. Days later, researchers in China identified a new virus that had infected dozens of people in Asia.
32. January 11, 2020: China reported its first known death from an illness caused by the virus. The report of the death of a 67-year old man with pre-existing conditions came just before the Chinese New Year, one of China's biggest holidays, when hundreds of millions of people travel across the country. The Chinese authorities curtailed festivities in an attempt to avoid further spread of the virus.
33. January 20, 2020: The first confirmed cases outside mainland China occurred
in Japan, South Korea and Thailand, according to the WHO's first situation report.
34. January 21, 2020: The first confirmed case in the United States was reported in
Washington State, where a man in his 30's developed symptoms after returning from a trip to
Wuhan.
35. January 23, 2020: Wuhan, a city of more than 11 million, was cut off by the
Chinese authorities by canceling planes and trains leaving the city, and suspending buses,
subways and ferries within it. At this point, at least 17 people had died, and more than 570
others had been infected, including in Taiwan, Japan, Thailand, South Korea and the United
States.
9 36. January 30, 2020: Amid thousands of new cases in China, a "public health emergency of international concern" was officially declared by the WHO.
37. January 31, 2020: The Trump administration suspended entry into the United
States by any foreign nationals who had traveled to China in the past 14 days, excluding the immediate family members of American citizens or permanent residents. By this date, one month after China first reported the outbreak, 213 people had died and nearly 9,800 had been infected worldwide.
38. February 2, 2020: The first coronavirus death was reported outside China. A
44-year-old man in the Philippines died after being infected, officials said. By this point, more than 360 people had died.
39. February 5, 2020: After a two-week trip to Southeast Asia, more than 3,600 passengers began a quarantine aboard the Diamond Princess cruise ship in Yokohama, Japan.
On January 25, a symptomatic passenger had departed the ship in Hong Kong, where he tested positive for the coronavirus. On February 3, the ship returned to Japan, after making six additional stops in three countries. Officials started screening passengers and crew, and the number of people who tested positive-712—became the largest number of coronavirus cases outside China.
40. February 7, 2020: A Chinese doctor, who had tried to raise early alarms that a cluster of infections could spin out of control, died of the coronavirus, transmitted from the patients he had been treating.
41. February 11, 2020: The disease caused by the virus was officially named
COVID-19 by the WHO, an acronym for coronavirus disease 2019.
10 42. February 12, 2020: The death toll in China had reached 1,113 and the total number of confirmed cases rose to 44,653. There were 393 cases outside of China, in 24 countries.
43. February 13, 2020: Approximately six weeks after first reporting the unknown virus to the outside world, Chinese officials added more than 14,840 new cases to the total number of infected in Hubei Province, where Wuhan is located. The new cases set a record for the most cases reported in a single day.
44. February 14, 2020: An 80-year-old Chinese tourist died at a hospital in Paris, in what was the first coronavirus death outside Asia, the authorities said. It was the fourth death from the virus outside mainland China, where about 1,500 people had died, most of them in
Hubei Province.
45. February 21, 2020: Shincheonji Church of Jesus, a secretive church in South
Korea was linked to a surge of infections in the country. The number of confirmed cases in
South Korea rose above 200, and more than 400 other church members reported potential symptoms, health officials said. As a result, the government shut down thousands of kindergartens, nursing homes and community centers, and put a stop to political rallies in the capital, Seoul.
46. February 21, 2020: Iran announced two coronavirus cases in the country, then hours later said that both patients had died. Two days later, Iran announced two additional deaths. The source of the virus in Iran is unknown. Within seven weeks, the number of global cases had risen to nearly 76,000, according to the WHO.
47. February 23, 2020: Europe faced its first major outbreak as the number of reported cases in Italy grew from fewer than five to more than 150. In the Lombardy region,
11 officials locked down 10 towns after a cluster of cases suddenly emerged in Codogno, southeast of Milan. As a result, schools closed, and sporting and cultural events were canceled.
48. February 24, 2020: The Trump administration asked Congress for $1.25 billion for coronavirus response. At this point the United States, where Centers for Disease Control and Prevention officials ("C.D.C.") warned of an almost certain outbreak, had 35 confirmed cases and no deaths.
49. February 24, 2020: Iran reported it had 61 coronavirus cases and 12 deaths, more than any other country but China, and public health experts warned that Iran was a cause for worry—its borders are crossed each year by millions of religious pilgrims, migrant workers and others. Cases in Iraq, Afghanistan, Bahrain, Kuwait, Oman, Lebanon, the United Arab
Emirates and one in Canada, have been traced back to Iran.
50. February 26, 2020: Brazilian health officials said that a 61-year-old São Paulo man, who had returned recently from a business trip to Italy, tested positive for the coronavirus.
It was the first known case in Latin America.
51. February 28,2020: The number of infections in Europe spiked. Italy, where 800 people had been infected by February 28, remained an area of concern. Cases in 14 other countries, including Northern Ireland and Wales, could be traced back to Italy. Germany had nearly 60 cases by February 27, and France reported 57, more than triple the number from two days earlier. Both England and Switzerland reported additional cases, while Belarus, Estonia and Lithuania all reported their first infections. The same day, Nigeria, Africa's most populous nation, confirmed its first case of coronavirus on February 28. The patient was an Italian citizen who had returned to Lagos from Milan.
12 52. February 28, 2020: A patient near Seattle became the first coronavirus patient to die in the United States. As the number of global cases rose to nearly 87,000, the Trump administration issued its highest-level warning, known as a "do not travel" warning, for areas in Italy and South Korea most affected by the virus. The government also banned all travel to
Iran and barred entry to any foreign citizen who had visited Iran in the previous 14 days.
53. March 3, 2020: The C.D.C. lifted all federal restrictions on testing for the coronavirus on March 3, according to Vice President Mike Pence. The news came after the
C.D.C. 's first attempt to produce a diagnostic test kit fell flat. By this point, the coronavirus had infected more than 90,000 around the globe and killed about 3,000, according to the WHO.
54. March 5, 2020: The first three people in the state of Maryland tested positive for COVID-19. That same day, Governor Hogan put Maryland under a state of emergency.
55. March 11,2020: The WHO declared the outbreak a pandemic. President Trump blocked most visitors from continental Europe, excluding Great Britain, for 30 days.
56. March 12, 2020: Maryland's Governor Hogan closed schools for two weeks, closed the cruise ship Port of Baltimore and activated the Maryland National Guard. Hospitals began setting up triage tents around the state.
57. March 13, 2020: President Trump officially declared a national emergency, and said he was making $50 billion in federal funds available to states and territories to combat the coronavirus.
58. March 15, 2020: The C.D.C. advised against any gatherings of 50 or more people in the United States over the next eight weeks. The recommendation included weddings, festivals, parades, concerts, sporting events and conferences.
13 59. March 16, 2020: President Trump advised citizens to avoid groups of more than
10. New York City's public-school system, the nation's largest with 1.1 million students, also announced that it would close. Governor Hogan closed all restaurants, bars and recreational centers in Maryland.
60. March 16, 2020: Several countries across Latin America imposed restrictions on their citizens to slow the spread of the virus. Venezuela announced a nationwide quarantine that would begin on March 17. Ecuador and Peru implemented countrywide lockdowns, while Colombia and Costa Rica closed their borders.
61. March 17, 2020: France imposed a nationwide lockdown, prohibiting gatherings of any size and postponing the second round of its municipal elections. The lockdown was one of Europe's most stringent. While residents were told to stay home, officials allowed people to go out for fresh air but warned that meeting a friend on the street or in a park would be punishable with a fine. By this time, France had more than 6,500 infections with more than 140 deaths, according to the WHO.
62. March 17, 2020: European leaders voted to close off at least 26 countries to nearly all visitors from the rest of the world for at least 30 days. The ban on nonessential travel from outside the bloc was the first coordinated response to the pandemic by the European
Union.
63. March 17, 2020: A leaked federal plan warned the new coronavirus pandemic
"will last 18 months or longer" and may come in "multiple waves" of infections, just as the
Spanish flu pandemic had done.
64. March 19, 2020: After almost three months, for the first time, China reported zero local infections, a milestone in the ongoing fight against the pandemic. The news signaled
14 that an end to China's epidemic could be in sight. However, experts said the country would need to see at least 14 consecutive days without any new infections for the outbreak to be considered over.
65. March 19, 2020: California Governor, Gavin Newsome, enacted the first stay- at-home order in the U.S.
66. March 21, 2020: Governor David Ige of Hawaii ordered a mandatory 14-day quarantine for everyone arriving in Hawaii, including tourists and returning residents.
67. March 22, 2020: New York Governor, Andrew Cuomo, enacted a stay-at-home order to remain in effect to at least April 29.
68. March 23, 2020: Governor Hogan ordered all non-essential businesses in
Maryland to close. Prime Minister Boris Johnson locked Britain down. The lockdown closed all nonessential shops, barred meetings of more than two people, and required all people to stay in their homes except for trips for food or medicine. Those who disobeyed risked being fined by the police.
69. March 24, 2020: Officials announced that the Summer Olympics in Tokyo would be postponed for one year. Only three previous Games had been canceled, all because of war: The 1916 Summer Olympics were canceled because of World War I, and the Summer and Winter Games were canceled in 1940 and 1944 because of World War II.
70. March 24, 2020: One day after the authorities halted all domestic flights,
Narendra Modi, India's prime minister, declared a 21-day lockdown of India, a country of 1.3 billion people.
71. March 26, 2020: Two months after the first case was reported on U.S. soil, the
United States officially became the country hardest hit by the pandemic, with at least 81,321
15 confirmed infections and more than 1,000 deaths. This was more reported cases than in China,
Italy, or any other country.
72. March 30, 2020: Virginia, Maryland and Washington, D.C., issued orders requiring their residents to stay home. Similar orders went into effect for Kansas and
North Carolina. Other states had previously put strict measures in place. The new orders meant that at least 265 million Americans were being urged to stay home.
73. April 2, 2020: Georgia's governor issued a stay-at-home order. Portions of the
GWCC in Atlanta were converted into a 200-bed alternate care facility to treat COVID- 19 patients. At this point, approximately three months after the first reported cases in China, and two months after the first reported case in the U.S., the pandemic had sickened more than 1 million people in 171 countries across six continents, killing at least 51,000.
74. April 10, 2020: Eight days later, the coronavirus had killed more than 101,000 people around the globe and infected at least 1.6 million. With more than 18,000 fatalities related to the virus and nearly 500,000 cases, the United States' toll surpassed that of Spain.
75. April 10, 2020: Coronavirus cases surged in Russia. The number of people hospitalized in Moscow with COVID- 19 doubled from the previous week, with two-thirds of the country's 12,000 reported cases in Moscow. The increase in cases pushed Moscow's health care system to its limit, well before an expected peak.
76. April 16, 2020: New York extended its stay-at-home order through May 15.
77. April 17, 2020: At least 700,230 people across every state, plus Washington,
D.C., and four U.S. territories, had tested positive for the virus, according to worldometers.info. The death toll was 36,922.
16 78. April 20, 2020: By the following Monday, the number of people infected in the
United States had climbed to 788,202 and the death toll had reached 42,257 over a single weekend.'
79. The outbreak in this country, which now has the highest number of known cases in the world, has exploded over the last six weeks. At the start of March, with extremely limited testing available, only 70 cases had been reported in the United States, most of them tied to overseas travel. More than 1,000 deaths are now routinely announced across the country each day, with some days exceeding 2,000.
80. Experts at the University of Washington predict that new infections will not begin to taper off until late June.
81. Numerous experts, including the C.D.C. and Dr. Anthony Fauci, Director of the
National Institute of Allergy and Infectious Diseases, warn that attempts to lift stay-at-home orders and re-open the country too soon would be devastating, causing further outbreaks and rising death tolls.
82. If history can teach us anything, it is that any rush to declare this pandemic over and attempt to immediately return to life as we previously knew it would be disastrous, not just for those states that choose such a dangerous path, but for all citizens, as COVID- 19 knows no boundaries. The Spanish flu's first wave was harmless compared to the second and third waves.
83. This is not just a matter of whether Georgia's governor has decided that it is safe to re-open the state and allow gatherings of 10,000 or more people by the date of
OPTAVIA's convention scheduled for July 23-26--a decision he will most certainly regret making—this is a matter of ensuring the safety of the entire country (let alone the world), and
I https://www.worldometers.info/coronavirus/country/us/.
17 determining when it will be safe again for large groups of citizens to gather on a national and a global level.
84. Indeed, we are now beginning to see what happens when the decision to relax measures to contain the virus happens too soon.
85. From a New York Times article written by Aaron E. Carroll and published on
April 14, 2020:
The cautionary tale at the moment is Singapore. For weeks, public health officials have been enviously lauding its response to Covid- 19. Singapore officials have been screening and quarantining all travelers from outside the country since the beginning of the pandemic. Their contact tracing is second to none. Every time they identify an infection, they commit to determining its origin in two hours. They post online where identified infected people work, live and have spent time so that potential contacts can be identified. They enforce quarantines and isolation of such contacts, with criminal charges for those who violate orders.
And yet, in the last week, they've put the entire country into lockdown. All migrant workers are confined to their compounds for at least two weeks. Citizens may leave their homes, but only to buy food or medicine, or to exercise. Anyone who breaks the rules, including spending time with anyone not in their household, can be imprisoned, fined the equivalent of $7,000 U.S., or both.
What Singapore was doing (more on that below) dwarfs what most are discussing in the United States. Its present circumstances bode poorly for our ability to remain open for a long time.
"There's just no way that we're going to be able to keep most of the country open through the year," said Ezekiel Emanuel, vice provost of Global Initiatives at the University of Pennsylvania. "If Singapore can't do it, I don't imagine how we think we can. As I have said, this is going to be a roller coaster with multiple waves of opening and partial re-closings necessary."2
2 https://www.nytimes.com/2020/04/14/upshoticoronavirus-singapore-thinking- big.html?campaign_id=29&emc=edit_up_20200416&instance_id17692&nithe-
18 86. The result of Singapore's original approach had been only 10 deaths, out of a population of 5.6 million during February and March, despite the country's close ties with
China. But record jumps in new infections have since occurred, taking its total to 26,098 cases as of this writing. If this can happen in Singapore, where stricter precautions were in place, it can surely happen here in the U.S., where seven states still do not have stay-at-home orders in place, hot spots continue to break out all around the country, and governors of other states that did close briefly (such as Georgia), and who choose to ignore the scientific experts, have made life-threatening decisions to re-open their states too soon, putting everyone at further risk.
87. Indeed, after lifting stay-at-home orders, both Mississippi and Texas saw immediate spikes in new infections over the first weekend after re-opening some businesses.
Georgia's infection rate is still rising after the stay-at-home order was lifted allowing restaurants, movie theaters, tattoo parlors, bowling alleys and hair salons to re-open. These early re-openings are dangerous experiments that have put peoples' lives at risk.
88. From an April 14, 2020 story in The Atlantic by Ed Yong:
As I wrote last month, the only viable endgame is to play whack-a-mole with the coronavirus, suppressing it until a vaccine can be produced. With luck, that will take 18 to 24 months. During that time, new outbreaks will probably arise. Much about that period is unclear, but the dozens of experts whom I have interviewed agree that life as most people knew it cannot fully return. "I think people haven't understood that this isn't about the next couple of weeks," said Michael Osterhoim, an infectious-disease epidemiologist at the University of Minnesota. "This is about the next two years."
The pandemic is not a hurricane or a wildfire. It is not comparable to Pearl Harbor or 9/11. Such disasters are confined in time and space. The SARS-CoV-2 virus will linger through the year and across the world. "Everyone upshot®i_id=79256226&segment_id253 17&te=1 &user_id=fcbd123O86cc84555fdb87879f853fc (revised April 15, 2020).
19 wants to know when this will end," said Devi Sridhar, a public-health expert at the University of Edinburgh. "That's not the right question. The right question is: How do we continue?"3
89. And yet, in spite of all of the expert predictions and warnings, and all signs to the contrary, when Tokyo has already postponed the 2020 Summer Olympics, Edinburgh has canceled both of its world-renowned arts festivals, all of which were scheduled to be held during the same time period as, and even later than the OPTAVIA convention, Defendant refuses to acknowledge this new reality and honor a force majeure clause in its own contracts that specifically covers pandemics and requires ten days' notice after learning ofsuch an event.
90. By its refusal, Defendant is effectively holding a gun to Corporate Events' head: either pay the outrageous cancellation fee demanded, don't pay and prepare to be sued, or keep the convention scheduled and risk the health and safety of 10,500 of its coaches and staff, and almost certainly be responsible for a new COVID-19 hot spot breaking out in Atlanta.
CLAIMS FOR DAMAGES
COUNT ONE (DECLARATORY JUDGMENT)
91. Plaintiff reincorporates by reference paragraphs 1 - 90 as if fully set forth herein.
92. The Parties entered into a contract drafted by Sheraton and which includes a force majeure clause, covering pandemics and requiring 10 days' notice of cancellation after
https ://www.theatlantic.com/health/archive/202 0/04/pandemic-summer- coronavirus-reopening-back- normal/609940/?campaign_id=39&emc=edit_ty_20200416&instance_i&47687&nlda vid- leonhardt®i_id=792 56226&segment_id=25 301&te=1&user_id=fcbd123086cc8455 5 fdb87879f88 5 3fc.
20 learning of the occurrence of a force majeure event. Plaintiff provided such required notice on
March 20, 2020, nine days after the WHO declared the coronavirus outbreak a pandemic, and then again on April 3, 2020.
93. Defendant has rejected Plaintiff's notice of cancellation and instead held
Plaintiff liable for cancellation fees purportedly due and totaling $95,156.25
94. An actual dispute exists as to the validity of the cancellations sent to Defendant on March 20, 2020 and April 3, 2020, and the applicability of the force majeure clause.
95. Without the Court's intervention and issuance of a declaratory judgment determining that Plaintiff's cancellations were timely and valid, Plaintiff faces real and unavoidable consequences, including an inevitable lawsuit by Defendant for damages of almost $100,000.
WHEREFORE, Plaintiff demands declaratory judgment against Defendant declaring that the notices of cancellation served on March 20, 2020 and April 3, 2020 were valid under the Sheraton force majeure clause and the contract is null and void.
Date: May 15, 2020
Respectfully submitted,
/5/ Teresa D. Teare (No. 200512150252) SHAWE ROSENTHAL LLP One South Street, Suite 1800 Baltimore, MD 21202 Telephone: (410) 752-1040 Facsimile: (410) 752-8861 [email protected]
21 Is! Courtney B. Amelung (No. 1412160018) SHAWE ROSENTHAL LLP One South Street, Suite 1800 Baltimore, MD 21202 Telephone: (410) 752-1040 Facsimile: (410) 752-8861 [email protected]
Is! Robert Giacovas(pro hac vice admission) Lazare Potter Giacovas & Moyle LLP 747 3rd Avenue, 16th Floor New York, NY 10017 Telephone: (212) 758-9300 Facsimile: (212) 888-0919 [email protected]
Is! Lainie Cohen(pro hac vice admission) Lazare Potter Giacovas & Moyle LLP 747 3rd Avenue, 16th Floor New York, NY 10017 Telephone: (212) 758-9300 Facsimile: (212) 888-0919 [email protected]
Is! Christina Dellaporte(pro hac vice admission) Lazare Potter Giacovas & Moyle LLP 747 3rd Avenue, 16th Floor New York, NY 10017 Telephone: (212) 758-9300 Facsimile: (212) 888-0919 cde1laportelpgmlaw.com
Attorneys for Plaintiff
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