Since the outbreak of the novel coronavirus (also referred to as COVID-19) in China in late 2019 and its spread around the globe, business in the United States has slowed and in many cases ground to a halt. The unexpected COVID-19 pandemic and governmental actions to try to stop its spread have affected nearly every business sector. Significant litigation has already arisen from the pandemic’s effects on business, and undoubtedly more will follow. This article discusses employment and commercial litigation claims and addresses some of the areas in which litigation is likely to arise, as well as some of the claims in Wisconsin and around the country that already have been brought because of the COVID-19 outbreak.
Many employment-law claims already have been filed related to the COVID-19 pandemic. With the new laws being enacted in response to COVID-19, and the effects of COVID-19 on existing laws, this is an area ripe for litigation.
Grant C. Killoran, Minnesota 1989, practices with O’Neil, Cannon, Hollman, DeJong & Laing S.C., Milwaukee. He is the past chair of the firm’s Litigation Practice Group and represents clients in Wisconsin state and federal courts and courts throughout the country, with a focus on complex business and healthcare disputes.
Joseph D. Newbold, Washington Univ. – St. Louis 2006, practices with O’Neil, Cannon, Hollman, DeJong & Laing S.C., Milwaukee. He is the firm chair of the Litigation Practice Group and represents businesses in Wisconsin and Illinois. He focuses on complex commercial litigation, including class actions and complex software and real estate disputes.
Erica N. Reib, Marquette 2011, practices with O’Neil, Cannon, Hollman, DeJong & Laing S.C., Milwaukee. She represents businesses with regard to their employment law matters, including policies and practices, investigations, and litigation.
Wage and Hour Claims. Many employees are now working from home for the first time in their careers. For nonexempt employees, this is fraught with potential off-the-clock issues, and employers face the possibility of being sued if their employees are not compensated for all time worked. Moreover, many exempt employees have had their salaries reduced due to revenue concerns flowing from the COVID-19 outbreak.
If these reductions push employees below the salary-basis test ($684 per week under the Fair Labor Standards Act (FLSA)), they will lose their exempt status and need to track their hours and be compensated for all hours worked in excess of 40 in a workweek. This may also cause employees to reexamine their duties to see if they meet the statutory duties tests and bring FLSA or state law-equivalent misclassification claims. Many of these types of claims could be brought on both an individual and a class basis.
Employment-related claims likely will be brought under the Families First Coronavirus Response Act (FFCRA) as well.1 Under the FFCRA, private employers with fewer than 500 employees must provide certain paid sick leave and expanded paid family and medical leave.2 This is the first federally mandated sick leave and expands the reasons for leave under the federal Family and Medical Leave Act (FMLA), as well as expanding FMLA coverage to employers with fewer than 50 employees. Employers must correctly provide leave under the FFCRA, and they run the risk of litigation if they interfere with such leave or retaliate against employees who have requested or taken leave under the FFCRA.
One employee has already sued her employer in federal court in Pennsylvania alleging violations of the FFCRA for interference and retaliation.3 The suit alleges that the woman requested leave from work to care for her child, whose school was closed because of coronavirus-related reasons (one of the six reasons for leave under the FFCRA), and that, although her requests went ignored, her employment was terminated three days later. The plaintiff named not only the employer as a defendant but also the employer’s human resources consultant and chief executive officer as defendants individually. The FLSA and the FMLA, under which the FFCRA falls, both allow for potential personal liability for an employer’s decision-makers.
Additionally, the FFCRA has been challenged in a lawsuit filed by the New York Attorney General, claiming that it “unlawfully narrows” the number of people who are covered by its paid leave provisions.4
Discrimination Claims. The COVID-19 pandemic also creates the potential for various employment-discrimination claims. From paternalistic concerns about older workers and workers with disabilities to blatant racial discrimination, many possible pitfalls (and claims) abound.
The Centers for Disease Control and Prevention (CDC) state that people 65 years old or older and those with underlying medical conditions are at a higher risk for severe illness from COVID-19.5 However, the federal Age Discrimination in Employment Act (ADEA) and the Wisconsin Fair Employment Act (WFEA) forbid employment discrimination against anyone who is 40 years old or older. Similarly, the Americans with Disabilities Act (ADA) and the WFEA prohibit discrimination based on disability.
Employers also have a duty under various statutes to prevent and remedy any discrimination and harassment that might occur against their employees in protected classes.6 Protecting employees from discrimination may become an enforcement priority for the federal Equal Employment Opportunity Commission (EEOC), which has the power to bring claims against companies on behalf of aggrieved individuals. The EEOC has published guidance to employers regarding the COVID-19 pandemic, including advice on disability accommodation requests, harassment, and return to work.7
These laws, combined with the extreme and sudden changes in many workplaces caused by the pandemic, make employment discrimination claims a likely area for litigation.
Workplace Safety Claims. Many of the employment law claims filed to date relating to COVID-19 involve workplace safety. Under the Occupational Safety and Health Act, employers have a general duty to furnish a place of employment free from recognized hazards that are causing or are likely to cause the death of or serious physical harm to employees.8 Although the Occupational Safety and Health Administration (OSHA) has not issued specific standards or regulations for workplaces related to COVID-19, thousands of complaints have already been filed with OSHA related to the pandemic, many related to alleged failures to follow social distancing guidelines and lack of appropriate personal protective equipment (PPE).
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Employees have also filed lawsuits against employers and unions for failing to provide safe workplaces. The New York State Nurses Association has filed three cases alleging that the New York Department of Health and two hospitals failed to adequately protect health care workers by, among other things, rationing PPE, failing to provide COVID-19 testing, and forcing workers with COVID-19 symptoms to continue working.9 In Florida, a transportation workers’ union sued the director of Miami-Dade Transit for failing to supply enough disinfectant and PPE to bus and train operators.10 In Missouri, a food-processing facility has been accused of putting employees in danger by requiring that they work in spaces that do not follow physical or social distancing guidelines, not providing them with adequate PPE, and not providing them with enough time to adequately wash their hands.11
Concerns about employee safety likely will increase as businesses reopen and probably will lead to additional claims and litigation. For example, the family of one Chicago-area Walmart employee who became infected with COVID-19 at work filed a wrongful death lawsuit, alleging that Walmart failed to properly protect its workers from COVID-19 infection. The family claims that Walmart did not warn the workers at one of its stores that other workers there had contracted COVID-19, did not close the store after workers became ill, and failed to properly sterilize the store, provide employees with PPE, or promote effective physical distancing measures.12 Employers who do not comply with the various “safer at home” orders issued by the states, or who retaliate against employees for trying to comply with these orders, may risk a lawsuit.
WARN Act and WBCL Claims. Under the federal Worker Adjustment and Retraining Notification Act (WARN) and Wisconsin’s business closing and mass layoff law, certain companies are required to provide employees with 60 days’ written notice before a business closing or mass layoff. Claims already have been brought against employers that made workforce reductions as a result of the novel coronavirus pandemic. For example, two former waitresses with the Hooters restaurant chain filed a class action in federal court in Florida on behalf of 679 workers, alleging that the company violated WARN by not giving the employees advance notice before making layoffs due to COVID-19.13
Laws Mentioned in the Article
Here is a list of federal and Wisconsin laws mentioned in the article.
Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-219.
Families First Coronavirus Response Act (FFCRA), 1 U.S.C. § 1, 5 U.S.C. § 8904, 7 U.S.C. § 2011, 10 U.S.C. § 1074, 25 U.S.C. § 1621q, scattered sections of 26 U.S.C., scattered sections of 29 U.S.C., 38 U.S.C. § 1701, and scattered sections of 42 U.S.C.); see also 29 C.F.R. pt. 826 (Paid Leave Under the Families First Coronavirus Response Act).
Family and Medical Leave Act (FMLA), 5 U.S.C. § 2105, 5 U.S.C. §§ 6381-6387, and 29 U.S.C. §§ 2601-2654; see also Wisconsin Family and Medical Leave Act, Wis. Stat. § 103.10.
Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634.
Wisconsin Fair Employment Law (WFEA), Wis. Stat. §§ 111.31-.395.
Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213 and scattered sections of 29 and 47 U.S.C.
Occupational Safety and Health Act (OSHAct), 29 U.S.C. §§ 651-678.
Worker Adjustment and Retraining Notification Act (WARN), 29 U.S.C. §§ 2101-2109.
Wisconsin Business Closing and Mass Layoff Law (WBCL), Wis. Stat. § 109.07; also known as plant-closing law.
Reimbursement or Refund Claims
With businesses in Wisconsin and across the country forced to shut down because of various governmental orders issued to combat the COVID-19 outbreak, a massive number of businesses are no longer able to provide the services they contracted to provide. Actions seeking refunds have already begun, with many brought as class actions.14
A federal lawsuit has been filed in Wisconsin against ticket broker Stubhub Inc. The plaintiffs allege the ticket broker had a longstanding “FanProtect” guarantee but now is refusing to give cash refunds to consumers who purchased tickets for events that are not taking place as originally scheduled because of the COVID-19 outbreak and is instead providing them with vouchers for future ticket purchases.15
Ticketmaster is facing a similar lawsuit after allegedly changing its refund policy as a result of the pandemic.16 According to the suit, Ticketmaster previously offered a refund if an event was cancelled but now will not offer refunds if an event is “indefinitely postponed.” This change prompted a class action seeking refunds for any event that cannot proceed because of the pandemic.
Airlines also are facing refund claims. United Airlines, Delta Air Lines, and American Airlines are all facing class actions for offering coupons for future flights instead of full refunds.17
Several lawsuits have been filed in a variety of nonworkplace settings alleging a failure to properly protect against COVID-19 transmission and infection.
Likewise, nearly every shuttered business with a membership roll, such as health or sports clubs, has faced a difficult decision of whether to provide a refund during the COVID-19 shutdown. Some businesses that have refused to provide refunds are facing suit. For example, class actions on behalf of individuals seeking refunds have been filed against national fitness chains18 as well as private golf clubs.19 These lawsuits claim that the industry standard is for clubs and gyms to provide refunds to their members, and the suits include both breach-of-contract and statutory consumer-protection claims against the defendants.
Schools also are facing lawsuits by students seeking tuition reimbursements. Most colleges have required students who live on campus to leave residence halls and cancelled in-person course work and activities for the remainder of the school year but are continuing to provide classes online to students.
However, more than a few students have found the online academic experience unworthy of full tuition rates. Lawsuits have been filed against Michigan State University, the University of Arizona, Drexel University, the University of Miami, and Purdue University claiming that the schools have enriched themselves by providing a lesser academic experience at full tuition price.20 Some of the suits point to the fact that the schools already were providing online classes to other students at a cost much less than full tuition and emphasize that an online academic experience lacks many of the extracurricular experiences that come with being an on-campus student.
Professional sports leagues have not avoided this wave of litigation and also are facing claims for reimbursement. A class action has been brought against Major League Baseball on behalf of season ticketholders.21 The lawsuit alleges that, to avoid paying refunds, Major League Baseball classified all the missed games as postponements. The plaintiffs claim it will be impossible for Major League Baseball to fulfill its contractual obligation to provide live baseball games to season ticketholders.
Employers must correctly provide leave under the FFCRA, and they run the risk of litigation if they interfere with such leave or retaliate against employees who have requested or taken leave under the FFCRA.
Failure to Protect Claims
Several lawsuits have been filed in a variety of nonworkplace settings alleging a failure to properly protect against COVID-19 transmission and infection. For example, the daughter of a woman who died at a Seattle-area nursing home filed a lawsuit in Washington state court alleging that the nursing home improperly concealed the threat caused by a coronavirus outbreak at its facility.22 The lawsuit alleges that the nursing home was aware of the outbreak weeks before the woman’s death but failed to act until COVID-19 testing done a few weeks later confirmed the outbreak.
Family members of five people who died after contracting COVID-19 at an Atlanta-area nursing home filed lawsuits in Georgia state court alleging the nursing home failed to protect its residents by, among other things, failing to provide workers with PPE, such as gloves and masks. They filed their lawsuits despite an executive order issued by Georgia Gov. Brian Kemp in early April 2020, limiting liability for health care providers, hospitals, and long-term care facilities during the pandemic.23
Cruise ship passengers and crewmembers have filed class actions against cruise line operators, alleging among other things, claims under U.S. general maritime law and the Jones Act for heightened risk of exposure to COVID-19 while aboard cruise ships.24
It is difficult to predict precisely how this new wave of litigation will develop, but it is becoming clear that the courts will have ample opportunity to weigh in and shape this evolving area of law.
Insurance Coverage Claims
To try to mitigate losses caused by government-mandated closures, businesses have been tendering claims to their insurers seeking business-interruption coverage. Whether such coverage exists depends on the language of the particular insurance policy, but it appears many of these claims are being denied. These insurance coverage decisions already have become the subject of a substantial amount of litigation, especially in the hospitality industry.
In mid-March 2020, a New Orleans restaurant filed a lawsuit against its insurer seeking a declaratory judgment of insurance coverage for losses caused by state orders to address the COVID-19 outbreak that limit the number of people who can gather in one place.25 Since then, numerous similar lawsuits, including class actions, have been filed by restaurants throughout the United States.26 Similar lawsuits have been filed against insurers by other types of businesses, including a dental office,27 casinos,28 a sports bar,29 and a movie theater.30 In Wisconsin, class actions seeking coverage have been filed against insurers by restaurants,31 entertainment-venue operators,32 and a furniture company.33
There is little doubt there will continue to be substantial litigation relating to COVID-19 as the fallout from the pandemic response continues. With all the uncertainty in workplaces, business operations, and daily life, as well as uncharted territory in the law, it is difficult to predict precisely how this new wave of litigation will develop, but it is becoming clear that the courts will have ample opportunity to weigh in and shape this evolving area of law.
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While it’s hard to choose, my favorite place in Wisconsin is Door County. My husband and I go on a yearly trip to Door County with friends, and there’s something for everyone. I love all the little towns with their great restaurants and shops and the wide variety of activities from hiking to wineries. It’s wonderful to have such an enjoyable getaway spot so close!
Erica N. Reib, O’Neil, Cannon, Hollman, DeJong & Laing S.C., Milwaukee.
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1 Pub. L. No. 116-127, 134 Stat. 178 (March 18, 2020); 29 C.F.R. pt. 826 (Paid Leave Under the Families First Coronavirus Response Act).
2 29 C.F.R. § 826.10; 29 C.F.R. § 826.20; 29 C.F.R. § 826.40.
3 Jones v. Eastern Airlines, No. 2:20-cv-01927 (E.D. Pa. filed April 16, 2020).
4 New York v. United States Dep’t of Labor, No. 1:20-cv-03020 (S.D.N.Y. filed April 14, 2020).
5 CDC, People Who Are at Higher Risk for Severe Illness, (last visited April 29, 2020).
6 There have been a number of news reports of people making negative comments to individuals of Asian descent regarding their alleged “role” in the spread of COVID-19. Josh Margolin, FBI Warns of Potential Surge in Hate Crimes against Asian Americans Amid Coronavirus, ABC News (March 27, 2020); Craig Timberg & Allyson Chiu, As the Coronavirus Spreads, So Does Online Racism Targeting Asians, New Research Shows, Wash. Post (April 8, 2020). Race and national-origin discrimination are prohibited under Title VII of the Civil Rights Act of 1964 and WFEA. In addition to claims related to adverse actions and harassment by supervisors and coworkers on the basis of race and national origin, employees are also protected by these laws from discrimination and harassment from third parties such as customers and vendors.
7 EEOC, Coronavirus and COVID-19, (last visited April 29, 2020).
8 29 U.S.C. § 654.
9 New York State Nurses Ass’n v. Montefiore Med. Ctr., No. 1:20-cv-03122 (S.D.N.Y. filed April 20, 2020); New York State Nurses Ass’n v. Westchester Cty. Health Care Corp., 54541/2020 (N.Y. Sup. Ct. filed April 20, 2020); New York State Nurses Ass’n v. New York State Dep’t of Health, case number unavailable (N.Y. Sup. Ct. filed April 20, 2020).
10 Transport Workers Union of Am., Local 291, AFL-CIO v. Bravo, No. 2020-008541-CA (Fla. Cir. Ct. filed April 17, 2020).
11 Rural Cmty. Worker's All. v. Smithfield Foods Inc., No. 5:20-cv-06063 (W.D. Mo. filed April 23, 2020).
12 See Evans v. Walmart Inc., No. 2020L003938 (Ill. Cir. Ct. filed April 6, 2020).
13 Scott v. Hooters III Inc., No. 8:20-cv-882 (M.D. Fla. filed April 16, 2020).
14 For more discussion of the pandemic’s effect on contract law, see Robert L. Gegios and Lance Duroni, The Legal Domino Effect: COVID-19 & Contracts, 93 Wis. Law. 12 (May 2020).
15 McMillan v. Stubhub Inc., No. 3:20-cv-00319 (W.D. Wis. filed April 2, 2020).
16 Hansen v. Ticketmaster Entm’t Inc., No. 3:20-cv-02685 (N.D. Cal. filed April 17, 2020).
17 Rudolph v. United Airlines Holdings Inc., No. 1:20-cv-02142 (N.D. Ill. filed April 6, 2020); Daniels v. Delta Air Lines Inc., No. 1:20-cv-01664 (N.D. Ga. filed April 17, 2020); Ward v. American Airlines Inc., No. 4:20-cv-00371 (N.D. Tex. filed April 22, 2020).
18 See, e.g., Labib v. 24 Hour Fitness USA Inc., No. 4:20-cv-02134 (N.D. Cal. filed March 27, 2020); Barnett v. Fitness Int’l LLC, No. 0:20-cv-60658 (S.D. Fla. filed March 30, 2020).
19 Cuenco v. ClubCorp USA Inc., No. 3:20-cv-00774 (S.D. Cal. filed April 23, 2020).
20 See Allen v. Michigan State Univ., case number unavailable (Mich. Ct. Cl. filed April 15, 2020); Rickenbaker v. Drexel Univ., No. 2:20-cv-01358 (D.S.C. filed April 8, 2020); Dixon v. University of Miami, No. 2:20-cv-01348 (D.S.C. filed April 8, 2020); Church v. Purdue Univ., No. 20-cv-25 (N.D. Ind. filed April 9, 2020); see also Hailey Konnath, Students Say U of Miami, Drexel Should Refund Tuition Fees, Law360 (April 9, 2020).
21 Ajzenman v. Office of the Comm’r of Baseball, No. 2:20-cv-03643 (C.D. Cal. filed April 20, 2020).
22 See de los Angeles v. Life Care Ctrs. of Am., No. 20-2-07689-9 SEA (Wash. Super. Ct. filed April 10, 2020).
23 See Carrie Teegardin & Brad Scrade, Lawsuits Blame Atlanta Senior Care Home in COVID-19 Deaths, Atlanta J. Const. (April 24, 2020). A number of states have enacted or are considering legislation or executive orders to protect health care providers from liability during the COVID-19 pandemic. In Wisconsin, 2019 Wis. Act 185, which went into effect on April 17, 2020, makes temporary changes to various Wisconsin laws to address COVID-19 matters, including laws relating to nursing home liability and health care provider immunity. See https://docs.legis.wisconsin.gov/2019/related/acts/125. Some other states also have extended immunity to private health care providers during the COVID-19 outbreak. See Y. Peter Kang, 6 States with COVID-19 Medical Immunity, and 2 Without, Law360 (April 17, 2020). Florida nursing homes have requested that Gov. Ron DeSantis grant them protection from lawsuits arising from the COVID-19 outbreak. See Carol Marbin Miller, Nursing Home Industry, Already Granted Favors by DeSantis, Wants Another – This One Big, Miami Herald (April 15, 2020)l. California nursing homes are lobbying Gov. Gavin Newsom for an order shielding them, as well as hospitals and physicians, from civil lawsuits and criminal prosecutions during the pandemic. See Maura Dolan, Harriet Ryan & Anita Chabria, Nursing Homes Want to Be Held Harmless from Death Toll, Los Angeles Times (April 23, 2020). Federal limitations on health care provider liability during the COVID-19 pandemic also are possible. President Donald Trump recently stated he would seek a legal opinion regarding liability limitations on claims by workers and customers who fall ill because of exposure to the novel coronavirus. See Josh Wingrove, Kudlow Says U.S. Will Create Liability “Guardrail” over Virus, Bloomberg (April 22, 2020).
24 See, e.g., Nedeltcheva v. Celebrity Cruises Inc., No. 1:20-cv-21569 (S.D. Fla. filed April 14, 2020); Austin v. Princess Cruise Lines Ltd., No. 2:20-cv-02531 (C.D. Cal. filed March 17, 2020); Dalton v. Princess Cruise Lines Ltd., No. 2:20-cv-02458 (C.D. Cal. filed March 13, 2020). The Jones Act is codified at 46 U.S.C. § 30104.
25 See Cajun Conti LLC v. Certain Underwriters at Lloyd’s London, No. 2020-02558 (La. Dist. Ct., Orleans Parish filed March 16, 2020).
26 See, e.g., French Laundry Partners LP v. Hartford Fire Ins. Co., case number unavailable (Cal. Super. Ct., Napa Cty. filed March 25, 2020); Proper Ventures LLC v. Seneca Ins. Co., case number unavailable (D.C. Super. Ct. filed April 8, 2020); Billy Goat Tavern I v. Society Ins. Inc., No. 1:20-cv-02068 (N.D. Ill. filed March 31, 2020); Maillard Tavern LLC v. Society Ins. Inc., No. 2020CH03843 (Ill. Cir. Ct. filed April 14, 2020).
27 Sandy Point Dental PC v. Cincinnati Ins. Co., No. 1:20-cv-02160 (N.D. Ill. filed April 6, 2020).
28 Chickasaw Nation Dep’t of Commerce v. Lexington Ins. Co., No. cv-20-35 (Okla. Dist. Ct. filed March 24, 2020); Choctaw Nation of Okla. v. Lexington Ins. Co., No. cv-20-42 (Okla. Dist. Ct. filed March 24, 2020).
29 Prime Time Sports Grill Inc. v. Certain Underwriters at Lloyd’s London, No. 8:20-cv-00771 (M.D. Fla. filed April 2, 2020).
30 SCGM Inc. v. Certain Underwriters at Lloyd’s, No. 4:20-cv-01199 (S.D. Tex. filed April 3, 2020).
31 See, e.g., Al Johnson’s Swedish Rest. & Butik Inc. v. Society Ins., No. 2020-cv-000052 (Wis. Cir. Ct. filed April 13, 2020); Rising Dough Inc. v. Society Ins., No. 2:20-cv-00623 (E.D. Wis. filed April 17, 2020); Colectivo Coffee Roasters Inc. v. Society Ins., No. 2020-cv-002597 (Wis. Cir. Ct. filed April 16, 2020).
32 See PTG Live Events LLC v. Cincinnati Ins. Co., No. 2020-cv-002596 (Wis. Cir. Ct. filed April 15, 2020).
33 See Builtrite Furniture Inc. v. Liberty Mut. Ins. Co., No. 2:20-cv-00656 (E.D. Wis. filed April 24, 2020).