IN THE CIRCUIT COURT OF COOK COUNTY ILLINOIS, COUNTY DEPARTMENT, CHANCERY DIVISION

Taynarvis Massey, Maria Villasenor, Noemi Villasenor, Sujey Figueroa, Edwin Pliego, Truvon Turner, Jayvonna Gardley, Ryan Freeman and Joyce Freeman,

Plaintiffs,

v.

McDonald’s Corporation, McDonald’s USA, LLC, McDonald’s Restaurants of Illinois, Inc., Lexi Management LLC, and DAK4, LLC,

Defendants.

Case No. 2020 CH 04247

CLASS ACTION INJUNCTION

MCDONALD’S CORPORATION, MCDONALD’S USA, LLC, AND MCDONALD’S RESTAURANTS OF ILLINOIS, INC.’S MEMORANDUM IN SUPPORT OF MOTION

TO DISMISS PURSUANT TO 735 ILCS § 5/2-619

ii

TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................................................ ii TABLE OF AUTHORITIES ......................................................................................................... iii ARGUMENT .................................................................................................................................. 2

I. The Court Should Defer To The Primary Jurisdiction Of IDPH Or OSHA (All Counts) ...... 2

A. The Court Should Defer To The Primary Jurisdiction Of IDPH ..................................... 2

1. IDPH Has Extensive And Exclusive Authority To Regulate Public Health And The COVID-19 Response ................................................................. 2

2. The Governor Has Expressly Set Forth The State of Illinois’s Response To COVID-19 ...................................................................................................... 4

3. IDPH Has Taken Steps To Enforce And Supplement The Governor’s Response To COVID-19 In Coordination With Other Health Authorities .......... 6

4. The Court Should Defer To IDPH’s Primary Jurisdiction ...................................... 9 B. Alternatively, The Court Should Defer To OSHA’s Primary Jurisdiction .................... 12

1. OSHA Is Responsible For Ensuring Safe Workplaces In Illinois ..................... 12 2. The Court Should Defer To OSHA’s Primary Jurisdiction ............................... 13

CONCLUSION ............................................................................................................................. 14

iii

TABLE OF AUTHORITIES

Cases Alaska State Emps. Ass’n, Local 52 v. Alaska,

No. 3AN-20-056652CI (Alaska Sup. Ct. Mar. 31, 2020) ........................................................ 11 Ill. Council on Long Term Care v. Miller,

579 F. Supp. 1140 (N.D. Ill. 1983) .......................................................................................... 11 Kerr-McGee Chem. Corp. v. Dep’t of Nuclear Safety,

204 Ill. App. 3d 605 (1990) ..................................................................................................... 11 Marlow v. LeBlanc,

2020 U.S. App. LEXIS 14063 (5th Cir. Apr. 27, 2020) .......................................................... 11 Moore v. Lumpkin,

258 Ill. App. 3d 980 (1994) ................................................................................................... 3, 4 N. Penn Transfer, Inc. v. Stationers Dist. Co.,

174 B.R. 263 (N.D. Ill. 1994) .................................................................................................. 11 People ex rel. Barmore v. Robertson,

302 Ill. 422 (1922) ..................................................................................................................... 4 People v. Stinger,

22 Ill. App. 3d 371 (1974) ......................................................................................................... 4 Rural Cmty.. Workers Alliance v. Smithfield Foods,

2020 U.S. Dist. LEXIS 78793 (W.D. Mo. May 5, 2020) ............................................ 11, 14, 15 Valentine v. Collier,

956 F.3d 797 (5th Cir. 2020) ................................................................................................... 11 Vill. of Itasca v. Vill. of Lisle,

352 Ill. App. 3d 847 (2004) ....................................................................................................... 2 Statutory Authorities

20 ILCS § 2301/1.1. ........................................................................................................................ 2 20 ILCS § 2305/2(a). .................................................................................................................. 2, 3 20 ILCS § 2305/2 ............................................................................................................................ 3 20 ILCS 2305/8.1 ............................................................................................................................ 7 20 ILCS 3305 .................................................................................................................................. 5 20 ILCS 3305/2. .............................................................................................................................. 4 20 ILCS 3305/2(a)(2) ...................................................................................................................... 4 29 U.S.C. § 651(b) .................................................................................................................. 12, 13 29 U.S.C. § 651 ............................................................................................................................. 12 410 ILCS 620/1 ............................................................................................................................... 3 410 ILCS 625/0.01 .......................................................................................................................... 3

iv

735 ILCS § 5/2-619. ....................................................................................................................... 1 77 Ill. Admin Code 690.40 ......................................................................................................... 3, 7 77 Ill. Admin Code 690.40(c) ......................................................................................................... 7 77 Ill. Admin. Code 690.1305(f) .................................................................................................... 3 77 Ill. Admin. Code 690.1310 (a) ................................................................................................... 3 77 Ill. Admin. Code 690.1340 ........................................................................................................ 3

Executive Materials

Executive Order 2020-07 ............................................................................................................ 5, 6 Executive Order 2020-10 ................................................................................................................ 5 Executive Order 2020-33 ................................................................................................................ 6

Additional Authorities OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, Beverage Vendors Offering

Takeout or Curbside Pickup, https://www.osha.gov/Publications/OSHA4017.pdf. (May 8, 2020)............................................................................................................................ 13

CHICAGO DEPARTMENT OF BUSINESS AFFAIRS AND CONSUMER PROTECTION, City of Chicago Issues Guidance and Supports For COVID-19 Restrictions On Restaurant Dining And Taverns, https://www.chicago.gov/city/en/depts/bacp/provdrs/edu/news/2020/march/covid19restri ............................................................................................................................................... 8

ILLINOIS DEPARTMENT OF PUBLIC HEALTH, Business and Organization Guidance, https://www.dph.illinois.gov/topics-services/diseases-and-conditions/diseases-a-z-list/coronavirus/business-guidance. (last accessed May 28, 2020) ............................................. 7

ILLINOIS DEPARTMENT OF PUBLIC HEALTH, COVID-19 and Food Service, https://www.chicago.gov/content/dam/city/depts/cdph/food_env/general/Food_Protection/20200319_IDPH_COVID-19_Interim_Guidance.pdf. (Mar. 2020) .................................... 8

Interim Enforcement Guidance for Coronavirus Disease (issued April 13, 2020) ................ 13, 14 NBC CHICAGO, ‘We Are Not Playing Games:’ Lightfoot, CPD Step Up Enforcement of

Stay-at-Home Orders, https://www.nbcchicago.com/news/coronavirus/as-weather-warms-up-officials-warn-residents-to-continue-adhering-to-covid-19-restrictions/2265595/. (May 2, .................................................................................................... 9

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19) (Apr. 13, 2020), https://www.osha.gov/memos/2020-04-13/interim-enforcement-response-plan-coronavirus-disease-2019-covid-19. ......................................................................................... 13

Peter Hancock, IDPH to withdraw emergency rule as General Assembly pursues related legislation Pritzker says new bill would focus on civil penalties, not jail or criminal charges, HARRISBURG REGISTER, http://www.dailyregister.com/news/20200522/idph-to--withdraw-emergency-rule-as-general-assembly-pursues-related-legislation-pritzker-says-new-bill-would-focus-on-civil-penalties-not-jail-or-criminal-charges ................. 7

v

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, File a Complaint , https://www.osha.gov/workers/file_complaint.html. (last accessed May 28, 2020) ................ 13

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Plaintiffs’ Complaint against McDonald’s Corporation, McDonald’s USA, LLC, and

McDonald’s Restaurants of Illinois, Inc. should be dismissed with prejudice pursuant to 735 ILCS

§ 5/2-619. The Court should defer to the primary jurisdiction and expertise of the Illinois

Department of Public Health (“IDPH”) or the Occupational Health and Safety Administration

(“OSHA”). These agencies, not courts, are the experts on how to respond to COVID-19—

including in the workplace specifically—and have the means and the resources to ensure uniform

enforcement of rules and regulations regarding COVID-19. Piecemeal litigation in the courts is

not only a poor replacement for their specialized knowledge and broad investigation and

enforcement resources and authority, but it thrusts the judiciary into what is inherently an issue for

public health experts and the executive branch.

Plaintiffs seek to subvert the policies and procedures of IDPH and OSHA and set public

health policy through private litigation. This is nothing less than an attempt to force upon the

judiciary the responsibility for managing the public health response to COVID-19. If Plaintiff’s

lawsuit is entertained, it will unleash a flood of similar litigation as any person who believes

COVID-19 should be handled differently than what public health authorities allow will file suit

against their employer or any business with which they may have some tangential contact.

Plaintiffs’ lawsuit thrusts the Court into the role of an ever-present monitor of the policies

and practices of the restaurants at issue here, as the defendants would be forced to return to the

Court and obtain the Court’s permission to implement changes in their policies and practices

whenever the agencies’ guidance on best practices evolves—as it already has and inevitably will

continue to do as the ever-evolving pandemic continues, conditions change, and more information

about COVID-19 comes to light.

Plaintiffs’ attempt to enforce their personal theory of the best way to respond to COVID-

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19 is dangerous. It creates inconsistency with current rules and regulations and the judgment of

public health experts—thereby undermining the efforts by IDPH and OSHA to combat COVID-

19.

It is not the judiciary’s responsibility to respond to COVID-19—it is the responsibility of

IDPH and OSHA, agencies with knowledge, resources, and the power to implement policies and

enforce them. The Court should accordingly invoke the primary jurisdiction doctrine and defer to

IDPH or OSHA.

ARGUMENT

I. The Court Should Defer To The Primary Jurisdiction Of IDPH Or OSHA (All Counts)

The Court should dismiss Plaintiffs’ claims under the doctrine of primary jurisdiction and

refer Plaintiffs’ claims to IDPH or OSHA. Under the primary jurisdiction doctrine, courts should

defer to an agency where “an agency’s technical expertise would help resolve the controversy,” or

“there is a need for uniform administrative standards.” Vill. of Itasca v. Vill. of Lisle, 352 Ill. App.

3d 847, 853 (2004).

A. The Court Should Defer To The Primary Jurisdiction Of IDPH

Invocation of the primary jurisdiction doctrine is appropriate here because IDPH has both

the technical expertise to address any deficiencies in health practices and because uniform

regulations are critical to combatting COVID-19.

1. IDPH Has Extensive And Exclusive Authority To Regulate Public Health And The COVID-19 Response

In Illinois, the State’s power over public health is codified in the Illinois Department of

Public Health Act, 20 ILCS § 2301/1.1 et seq., (the “Public Health Act”), which grants IDPH broad

power to regulate the health of the people of Illinois. 20 ILCS § 2305/2(a). The Act gives IDPH

“jurisdiction to address dangerously contagious or infectious disease outbreaks to protect the

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health and lives of the people of the State.” 77 Ill. Admin Code 690.40. IDPH has the authority

to adopt rules and regulations, institute investigations and inspections, and take action to prevent

the spread of infectious disease. 20 ILCS § 2305/2(a). In fact, IDPH is required to “take means it

considers necessary to restrict and suppress dangerously contagious or infectious diseases,

especially when existing in epidemic form.” 77 Ill. Admin Code 690.40; see also 77 Ill. Admin.

Code 690.1305(f) (IDPH has “supreme authority in matters of quarantine and isolation”). IDPH

also ensures that businesses such as restaurants are safe and sanitary by conducting inspections,

administering licensing requirements, and enforcing nuisance-abatement actions. See, e.g., 410

ILCS 620/1 et seq. (the Illinois Food, Drug and Cosmetic Act); 410 ILCS 625/0.01 et seq. (the

Food Handling Regulation Enforcement Act”).

The Public Health Act requires “[a]ll local boards of health, health authorities and officers,

police officers, sheriffs and all other officers and employees of the state or any locality” to

administer and enforce the rules and regulations adopted by IDPH. 20 ILCS § 2305/2; 77 Ill.

Admin. Code 690.1310 (a); see also 77 Ill. Admin. Code 690.1340. IDPH thus works hand in

hand with the Chicago Department of Public Health and, for each reported or suspected case of a

reportable illness, such as COVID-19, “the certified local health department shall assess the

situation and, in consultation with the Department, identify the least restrictive means of

controlling the transmission of the disease.” 77 Ill. Admin. Cod 690.1315.

Private citizens have no right of action to undermine the IDPH’s exclusive authority and

expertise through litigation. Moore v. Lumpkin, 258 Ill. App. 3d 980, 989-98 (1994) (“[T]he

manner in which the Department investigates and the specific measures it takes to suppress

dangerously contagious diseases is left to the broad discretion of the Department.”). Courts have

thus declined to recognize a private right of action to challenge or enforce measures taken, or not

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taken, by the IDPH to prevent the spread of infectious diseases. Id. Judicial intervention risks

impeding IDPH’s effective exercise of its expertise and authority to combat infectious disease. Id.

“[T]he implication of a private right of action could . . . delay implementation of necessary

measures while litigation is in process.” Id. at 998. Thus, IDPH has sole authority over measures

to counteract the spread of contagious diseases. Id.; see also People ex rel. Barmore v. Robertson,

302 Ill. 422, 427 (1922) (“[t]he court has nothing to do with the wisdom or expediency of the

measures adopted” by health officials to control contagious diseases). Judicial intervention in

public health policy also conflicts with separation of powers, as the “the judicial department may

not take as its own . . . discretionary powers” that have been vested in the executive branch. Cf.

People v. Stinger, 22 Ill. App. 3d 371, 373 (1974).

2. The Governor Has Expressly Set Forth The State of Illinois’s Response To COVID-19

Indeed, in the specific context of the COVID-19 pandemic, IDPH’s authority under the

Public Health Act is amplified by the Governor’s actions to combat the virus, illustrating that the

State of Illinois has taken full responsibility to manage the pandemic. The State of Illinois also

has broad plenary power to declare a State of Emergency and exercise expansive regulatory powers

in response to a threat to public health. See Illinois Constitution, Preamble (an essential State

function is to “provide for the health, safety and welfare of the people”). In particular, the Illinois

Emergency Management Agency Act confers broad authority to the Governor to enact emergency

declarations to protect public health and safety during a disaster. 20 ILCS 3305/2(a)(2)

(“Emergency Act”). The Emergency Act’s purpose is to provide the executive branch with

authority to respond decisively to large-scale emergencies, such as a global pandemic, in

coordination with federal and state agencies and local governments. 20 ILCS 3305/2.

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On March 9, 2020, Governor Pritzker exercised his authority under the Emergency Act, 20

ILCS 3305, and declared all counties in the State of Illinois as a disaster area in response to the

outbreak of COVID-19. A week later, with COVID-19 cases mounting, the Governor issued an

executive order under Section 7 of the Emergency Act banning all businesses that offer food or

beverages—including restaurants—from permitting on premises consumption. Executive Order

2020-07. Such establishments were “permitted and encouraged to serve food and beverages so

that they may be consumed off-premises” through “in-house delivery, third-party delivery, drive-

through and curbside pickup.” Id. Establishments were also permitted to offer carry-out, so long

as “patrons maintain adequate social distancing.” Id.

On March 20, 2020, as the virus continued to spread, the Governor issued an executive

order requiring all individuals living in the State of Illinois to stay at home. Executive Order 2020-

10. That order required all non-essential businesses to cease operations. The order expressly

permitted restaurants to continue operations, but only for consumption off-premises, again through

such specified means as in-house delivery, third-party delivery, drive-through, curbside pick-up,

and carry-out. Id. However, restaurants were required to take certain proactive measures,

including ensuring compliance with social distancing requirements, and providing hand sanitizer

and sanitizing products. Id. The executive order further delegated enforcement authority to State

and local law enforcement. Id.

On April 30, 2020, the Governor issued a proclamation declaring all of Illinois a disaster

area under Section 4 of the Emergency Act as a result of the public health emergency caused by

COVID-19. That same day, the Governor issued an executive order pursuant to section 7 of the

Emergency Act implementing additional necessary measures, consistent with expert public health

guidance, to slow and stop the spread of COVID-19. Executive Order 2020-32.

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As relevant here, Executive Order 2020-32 includes detailed requirements for restaurants,

which may continue to prepare and serve food, but only for consumption off-premises, through in-

house delivery, third-party delivery, drive-through, curbside pick-up, and carry-out. Id.; see also

Executive Order 2020-07 (enacted March 16, 2020). In addition, to remain open, restaurants must

follow specific requirements, including the following:

1. Designate six-foot distances. Designating with signage, tape, or by other means six-foot spacing for employees and customers in line to maintain appropriate distance;

2. Hand sanitizer and sanitizing products. Having hand sanitizer and sanitizing products readily available for employees and customers;

3. Separate operating hours for vulnerable populations. Implementing separate operating hours for elderly and vulnerable customers;

4. Online and remote access. Posting online whether a facility is open and how best to reach the facility and continue services by phone or remotely; and

5. Face Coverings and PPE. Providing employees with appropriate face coverings and requiring that employees wear face coverings where maintaining a six-foot social distance is not possible at all times. When the work circumstances require, providing employees with other PPE in addition to face coverings. All persons entering the restaurant should wear masks.

Executive Order 2020-32. Once again, the order delegated to state and local law enforcement the

authority to enforce its requirements. Id. On April 30, 2020, the Governor entered another

executive order extending all prior executive orders until May 29, 2020. Executive Order 2020-

33.

3. IDPH Has Taken Steps To Enforce And Supplement The Governor’s Response To COVID-19 In Coordination With Other Health Authorities

Consistent with the Governor’s authority under the Illinois Emergency Management

Agency Act, the Governor’s Executive Orders delegate enforcement authority to the IDPH, acting

in cooperation with other state and local health authorities and law enforcement. See Executive

Order 2020-32; 2020-07.

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IDPH has fully exercised that authority. On May 15, 2020, IDPH issued an Emergency

Amendment to 77 Ill. Admin Code 690.40 that specifically addresses COVID-19. The Emergency

Amendment tracks the requirements for restaurants set forth in Executive Order 2020-32, restates

the IDPH’s authority to enforce the executive order to protect the public health, and provides that

restaurants that violate the requirements set forth in Executive Order 2020-32 “shall be subject to

the penalties set forth in Section 8.1 of the Act.” 77 Ill. Admin Code 690.40(c). Those penalties

include potential criminal prosecution by the IDPH and the State’s Attorney. See 20 ILCS

2305/8.1.1

IDPH has also issued Guidance for Food Service Regarding COVID-19 and the Governor’s

executive orders.2 Among other things, that Guidance addresses how the Governor’s and IDPH’s

requirements for restaurants will be enforced:

Q1. Who is in charge of enforcing this order? A1. Per the COVID-19 Executive Order No. 5, Section 3, enforcement responsibilities will be a cooperative effort of the Illinois State Police, Illinois Department of Public Health, the State Fire Marshal, and the Illinois Liquor Control Commission. When it comes to enforcement of this Executive Order, the focus of the local health departments (LHDs) should be on helping restaurants and food service facilities voluntarily comply with the order. If this can’t be successfully

1 IDPH recently announced that it may withdraw the emergency amendment after

conferring with the Joint Committee on Administrative Rules. Governor Pritzker has indicated that, if the emergency amendment is withdrawn, he will pursue legislation with the General Assembly providing for alternative enforcement mechanisms—likely civil penalties. See Peter Hancock, IDPH to withdraw emergency rule as General Assembly pursues related legislation Pritzker says new bill would focus on civil penalties, not jail or criminal charges, HARRISBURG REGISTER (May 22, 2020), http://www.dailyregister.com/news/20200522/idph-to-withdraw-emergency-rule-as-general-assembly-pursues-related-legislation-pritzker-says-new-bill-would-focus-on-civil-penalties-not-jail-or-criminal-charges.

2 IDPH has also posted additional guidance materials regarding COVID-19 for businesses, food service, and food establishments. See, e.g., ILLINOIS DEPARTMENT OF PUBLIC HEALTH, Business and Organization Guidance (last accessed May 28, 2020), https://www.dph.illinois.gov/topics-services/diseases-and-conditions/diseases-a-z-list/coronavirus/business-guidance.

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achieved, IDPH and LHDs have the authority to order the closure of a facility and law enforcement is authorized to carry out such orders. Please consult your States Attorney as needed.3

The City of Chicago has likewise issued specific guidelines implementing the Executive

Order 2020-32.4 In so doing, Chicago Department of Business Affairs and Consumer Protection

Commissioner Rosa Escareno acknowledged that while “these restrictions are a heavy burden on

our restaurant community . . . we will be enforcing [them].”5 The City of Chicago has widely

disseminated instructions for what employees or members of the public should do if they observe

violations of the Executive Order, including providing contact information for appropriate

enforcement authorities.

In fact, the City of Chicago has taken active steps to enforce Executive Order 2020-32. For

example, on May 1, 2020, the Commissioner of Health of the City of Chicago issued an Order

Applying Executive Order 2020-32. The Commissioner’s order closed certain portions of the

Lakefront and the Chicago Riverwalk, prohibited public or private gatherings of 10 people or

more, and advised that the Chicago Police Department would employ a graduated approach to

enforcing the order—“warning, then fine, then arrest.” Mayor Lightfoot has repeatedly

3 ILLINOIS DEPARTMENT OF PUBLIC HEALTH, COVID-19 and Food Service (Mar. 2020),

https://www.chicago.gov/content/dam/city/depts/cdph/food_env/general/Food_Protection/20200319_IDPH_COVID-19_Interim_Guidance.pdf.

4 CHICAGO DEPARTMENT OF BUSINESS AFFAIRS AND CONSUMER PROTECTION, City of Chicago Issues Guidance and Supports For COVID-19 Restrictions On Restaurant Dining And Taverns (Mar. 16, 2020), https://www.chicago.gov/city/en/depts/bacp/provdrs/edu/news/2020/march/covid19restrictionsonrestaurantdiningtaverns.html.

5 Id.

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admonished that the City of Chicago will use all means necessary to enforce the requirements of

Executive Order 2020-32.6

4. The Court Should Defer To IDPH’s Primary Jurisdiction

As demonstrated by the extensive delegation of authority to IDPH and the local health

agencies IDPH works with, such as the Chicago Department of Health, combatting COVID-19 is

best left to the experts. Decisions about which safety requirements to impose on restaurants, how

to enforce compliance within those requirements at specific restaurants, and how those

requirements should change over the course of a shifting pandemic can only be effectively and

uniformly accomplished by IDPH acting in concert with local health authorities who have the

expertise, information, and resources to make such determinations and enforce them. For the same

reasons, IDPH is best suited to ensuring uniformity in the development and enforcement of

evolving restaurant safety standards.

Judicial intervention here, and in other cases that surely would follow, risks disrupting

IDPH’s carefully reasoned and deliberate process, as a court’s understanding and enforcement of

safety requirements may be inconsistent with IDPH’s current or future approach. Further, any

order by this Court will inherently result in the defendants operating under different rules and

standards with respect to similarly-situated restaurants following IDPH’s guidance and regulations.

Not only does this cause confusion, but it subverts IDPH’s attempt to create and enforce uniform

public health practices. Ultimately, Plaintiffs’ lawsuit is little more than an attempt to subvert the

authority that has been delegated to the IDPH and IDPH’s current guidelines and policies by asking

6 See, e.g., NBC CHICAGO, ‘We Are Not Playing Games:’ Lightfoot, CPD Step Up

Enforcement of Stay-at-Home Orders (May 2, 2020), https://www.nbcchicago.com/news/coronavirus/as-weather-warms-up-officials-warn-residents-to-continue-adhering-to-covid-19-restrictions/2265595/.

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the judiciary to intervene.

Further, requiring the Court to manage the health and safety practices of restaurants during

an ever-evolving and ongoing pandemic is judicially unworkable. Over time, the appropriate

response to COVID-19 will certainly change (indeed, as it already has, see, e.g., Compl. ¶¶ 40-41),

and IDPH may modify the COVID-19 related requirements for restaurants. IDPH is best suited to

regulate McDonald’s and other restaurants as conditions and best practices evolve. For example,

Plaintiffs ask the Court to require McDonald’s to provide “adequate protective equipment” and

“accurate information about COVID-19.” (Compl. at 32-33.) In only the couple months since the

pandemic began, what counts as “adequate” protective equipment and “accurate” information has

changed dramatically as health experts learn more about the virus and guidance and regulations

change in response. Given the ever-evolving situation, determining what is “adequate” and

“accurate” is a determination that should be made by health experts whose responsibility it is to

continuously collect this information and implement recommendations through rules and

regulations.

Indeed, if the Court entertains this lawsuit, changes in guidance from IDPH and other

health authorities will result in frequent motions and hearings before the Court as the Court would

assume responsibility for ensuring that the restaurants at issue here are able to change their

practices to keep pace with updated guidance from IDPH. It also places the defendants in the

impossible position of both complying with a potential injunction from the Court and inconsistent

health rules and regulations. To avoid violating an injunction, defendants’ implementation of any

updated guidance from IDPH would necessarily be delayed as defendants would first have to seek

and obtain the Court’s approval. This procedure—whereby IDPH promulgates guidance and

defendants must then obtain the Court’s approval to follow it—is nonsensical. It prevents the

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defendants from following the most-up-to-date guidance and results in an unnecessary and

pointless waste of resources by both the parties and the Court.

When plaintiffs have asked courts to assume the role of public safety agencies, courts have

wisely refused such invitations. See Valentine v. Collier, 956 F.3d 797, 803 (5th Cir. 2020)

(reversing district court’s preliminary injunction requiring court to oversee safety protocols at

prison, in part, because such an injunction would “lock[] in place a set of policies for a crisis that

defies fixed approaches”); Marlow v. LeBlanc, 2020 U.S. App. LEXIS 14063, at *3-4 (5th Cir.

Apr. 27, 2020) (similar); Alaska State Emps. Ass’n, Local 52 v. Alaska, No. 3AN-20-056652CI, at

*14-20 (Alaska Sup. Ct. Mar. 31, 2020) (attached as Exhibit 2) (declining workers’ request for

injunction related to workplace safety in deference to the state’s determination of how to best

protect employees). COVID-19’s impact on workplace safety and public health goes “to the heart

of [public health agencies] special competence” and is outside the expertise of courts. Rural Cmty..

Workers Alliance v. Smithfield Foods, 2020 U.S. Dist. LEXIS 78793, at *24 (W.D. Mo. May 5,

2020).

Applying these same principles, courts in Illinois defer to the expertise of agencies when

health and other complex policy issues are at the heart of a dispute, and the Court should do the

same here. See, e.g., Kerr-McGee Chem. Corp. v. Dep’t of Nuclear Safety, 204 Ill. App. 3d 605,

611 (1990) (dismissing claims under primary jurisdiction doctrine concerning “complex questions

concerning . . . nuclear safety”); N. Penn Transfer, Inc. v. Stationers Dist. Co., 174 B.R. 263, 268-

69 (N.D. Ill. 1994) (deferring to agency on the issue of whether filed rates were reasonable).

Ultimately, intervention by this Court is unnecessary and potentially harmful. IDPH, not

the judiciary, has the technical expertise to enact and enforce uniform policies and procedures.

Further, failure to dismiss Plaintiffs’ claims would flood the courts with similar lawsuits against

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other restaurants and businesses. If Plaintiffs are able to compel McDonald’s to implement their

personally-preferred practices, it will not be long before others ask the courts to implement their

vision of the best way to combat COVID-19. Entertaining such lawsuits would not only create an

ad hoc patchwork of regulations and rules—undermining any attempts at a consistent COVID-19

response—but would force upon the judiciary the responsibility for combatting COVID-19.

Managing public health crises is a role for IDPH, not the courts.

B. Alternatively, The Court Should Defer To OSHA’s Primary Jurisdiction

Because Plaintiffs’ claims are based in workplace safety, OSHA also has primary

jurisdiction, and OSHA is significantly better situated than the judiciary to address the ongoing

COVID-19 pandemic with its expertise, resources, and enforcement authority for the same reasons

as IDPH explained above.

1. OSHA Is Responsible For Ensuring Safe Workplaces In Illinois

In addition to the primary state-level oversight and regulation of public health described

above, OSHA provides an additional layer of regulation and protection specifically for workplace

safety issues. The Occupational Safety and Health Act, 29 U.S.C. §§ 651 et seq. (the “OSHA

Act”), was intended to “assure so far as possible every working man and woman in the Nation safe

and healthful working conditions and to preserve our human resources.” 29 U.S.C. § 651(b). The

OSHA Act authorizes “the Secretary of Labor to set mandatory occupational safety and health

standards applicable to businesses affecting interstate commerce.” Id. § 651(b)(3). OSHA is

authorized to inspect or investigate any place of employment in order to carry out the purposes of

the OSHA Act. Id. § 657. OSHA may issue citations to an employer for violations of the OSHA

Act and require abatement of the violation with a reasonable time. Id. § 658. OSHA may impose

additional enforcement and penalties for ongoing violations or failure to abate. Id. §§ 659, 666.

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An employee who is concerned about workplace safety may file a confidential complaint

requesting that OSHA initiate an investigation into the employer’s workplace practices.7 The

OSHA Act also includes specific procedures allowing the Secretary of Labor to petition a court to

restrain conditions that could reasonably be expected to imminently cause death or serious physical

harm. Id. § 662. If an employee believes OSHA failed to appropriately seek relief needed to

prevent imminent death or serious physical harm, the employee may file a writ mandamus to

compel the Secretary of Labor to seek such an order. Id.

OSHA published “Guidance on Preparing Workplaces for COVID-19,” which clarifies that

the agency will address any unsafe conditions related to COVID-19. (Exhibit 1 at 4.) OSHA also

issued Interim Enforcement Guidance for Coronavirus Disease 2019 (issued April 13, 2020),

which identifies applicable OSHA standards that may apply to COVID-19.8 On May 8, 2020,

OSHA issued COVID-19 Guidance for Restaurants & Beverage Vendors Offering Takeout or

Curbside Pickup.9 On May 19, 2020, OSHA published an Updated Interim Enforcement Response

Plan for Coronavirus Disease 2019.

2. The Court Should Defer To OSHA’s Primary Jurisdiction

Indeed, a federal court addressing virtually identical public nuisance and negligence claims

against an employer dismissed those claims in deference to OSHA’s primary jurisdiction. The

7 See, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, File a Complaint (last

accessed May 28, 2020), https://www.osha.gov/workers/file_complaint.html. 8 OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, Interim Enforcement Response

Plan for Coronavirus Disease 2019 (COVID-19) (Apr. 13, 2020), https://www.osha.gov/memos/2020-04-13/interim-enforcement-response-plan-coronavirus-disease-2019-covid-19.

9 OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, COVID-19 Guidance for Restaurants & Beverage Vendors Offering Takeout or Curbside Pickup (May 8, 2020), https://www.osha.gov/Publications/OSHA4017.pdf.

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plaintiffs in Smithfield Foods alleged their working conditions were a public nuisance and that

their employer had acted negligently by not following COVID-19 guidance and failing to protect

employees. 2020 U.S. Dist. LEXIS 78793, at *3-11. The plaintiffs sought injunctive relief, but

the court denied the requested injunction and dismissed the lawsuit. The court held that whether

the employer had created an unsafe workplace was within OSHA’s specialized expertise. Id. at

*23-26. The court reasoned that workplace safety requirements go “go to the heart of OSHA’s

special competence,” and that a private lawsuit could interfere with OSHA’s “crucial” efforts to

“ensure uniform national enforcement” of COVID-19 related workplace requirements. Id. at *24-

25. Private lawsuits “could easily lead to inconsistent regulation of businesses in the same

industry.” Id. at *24. Finally, the court rejected the plaintiffs’ claims that OSHA could not (or

would not) remedy their complaints because they could seek emergency relief provided by

statute—relief that the plaintiffs had not yet sought. Id. at *25-26.

Smithfield Foods is directly on point here. Plaintiffs suggest that OSHA has not yet acted

on the complaints that other employees have file in other matters (Compl. ¶¶ 62-64), but, as the

court in Smithfield Foods observed, “if OSHA fails to act quickly . . . Plaintiffs have a remedy” by

seeking “emergency relief through OSHA’s statutory framework.” 2020 U.S. Dist. LEXIS 78793,

at *25. Plaintiffs do not allege that they exhausted this remedy and were unsuccessful, and they

should not be able to short-circuit statutory remedies created for precisely this situation merely

because they prefer a different path. Accordingly, if the Court reaches the issue of OSHA’s

primary jurisdiction, the Court should follow Smithfield Foods and defer to OSHA’s primary

jurisdiction.

CONCLUSION

For all of the above reasons, Plaintiffs’ Complaint against McDonald’s should be dismissed

with prejudice.

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Dated: May 28, 2020 Respectfully Submitted,

/s/ Jonathan C. Bunge

Jonathan C. Bunge Daniel R. Lombard Firm No. 55928 QUINN EMANUEL URQUHART & SULLIVAN LLP 191 N. Wacker Drive, Suite 2700 Chicago, Illinois 60606-1881 (312) 705 7400 (phone) (312) 705 7401 (fax) jonathanbunge@quinnemanuel.com daniellombard@quinnemanuel.com Counsel for Defendants McDonald’s Corporation, McDonald’s USA, LLC, and McDonald’s Restaurants of Illinois, Inc.

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CERTIFICATE OF SERVICE

The undersigned attorney for Defendants McDonald’s Corporation, McDonald’s USA,

LLC, and McDonald’s Restaurants of Illinois, Inc. hereby certifies that on May 28, 2020, a true

and correct copy of the foregoing was filed via the Court’s approved electronic filing service

provider, which will automatically serve and send notification of such filing to all registered

attorneys of record.

/s/ Jonathan C. Bunge