By Lauren Berg

Law360 (September 29, 2020, 6:20 PM EDT) -- Latham & Watkins LLP is leading the charge representing plaintiffs in a putative class action filed Monday accusing Los Angeles County of violating the constitutional rights of hundreds of indoor mall businesses that were forced to close amid the coronavirus pandemic, costing them millions in lost wages and revenue.

L.A. County didn't offer a single science- or health-based reason for continuing to keep its indoor mall businesses closed, even after the California Department of Public Health in August gave the go-ahead for indoor malls and shopping centers to reopen with some restrictions, according to the complaint filed in California federal court by 13 business owners, malls and shops.

Instead, the county, along with the County of Los Angeles health officer, the director of the County of Los Angeles Department of Public Health and the county sheriff, are trampling on the businesses' and employees' constitutional rights and costing them millions of dollars in lost wages and revenue, the retailers say.

The suit claims violations of equal protection and due process under the Fourteenth Amendment and violations of the California Constitution, including improper delegation of legislative power.

At the beginning of the pandemic, government officials closed businesses on an unprecedented scale in an attempt to minimize the spread of a disease that people knew little about, according to the complaint. But over the past six months, the retailers say, scientists know more about how the disease spreads and how the spread can be minimized or prevented.

As a result, the retailers say federal, state and local officials have regularly revised their guidance, including recognizing that many activities can be done safely, especially when employees and customers take precautions, such as social distancing and wearing face masks.

The retailers say that when they were allowed to reopen for a short time at the beginning of the summer, they took many measures to protect their employees and customers, including posting signs, offering hand sanitizer and implementing extensive cleaning protocols.

The county has generally deferred to the state's guidance with respect to business closures and reopenings, according to the suit, and backtracked when the state backtracked later in the summer. But on Aug. 28, when the California Department of Public Health issued a statewide order allowing counties to reopen indoor malls with "sensible and effective restrictions," the retailers said LA County refused to follow suit.

On Sept. 2, County of Los Angeles Health Officer Muntu Davis ordered all indoor portions and operations of indoor malls to remain closed to the public until further notice, according to the complaint.

"The county's forced closure of indoor malls and shopping centers stands in stark contrast to its treatment of virtually every other retail establishment, including large and small scale retailers and hair salons and barbershops not inside malls — all of which were permitted to reopen immediately and operate at a minimum at 25% capacity, in accordance with statewide guidelines," the retailers said. "The county's departure from the state's order separates it from other California counties — all of which, to plaintiffs' knowledge, have allowed indoor malls and shopping centers to reopen."

There is no evidence to support the county's discriminatory treatment of indoor malls, the retailers say, and no data showing that indoor malls are any less safe than the large retail stores that have been open for months or the outdoor malls that have been allowed to reopen.

The county's September order is out of line with statewide standards, the retailers say.

"This continued unreasoned and unjustified policy has needlessly shuttered hundreds of businesses and thrown thousands of employees out of work, devastating those businesses, their employees and their families," the retailers said.

Al-Azim Inc., which owns Metropolis Big & Tall in the interior of a county mall, has seen its sales and profits plummet since shutting down and has had to lay off all of its employees, including plaintiff Riaz Mohammed and his two brothers, who have operated the clothing store for nearly 30 years, according to the suit.

Similarly, My Dream Boutique and Salon Dioro, two small family businesses inside a county mall, will also have to lay off their employees, the retailers say. All three stores may have to permanently close if the county doesn't lift its order, according to the suit.

"The county's order has arbitrarily deprived plaintiffs of their core property interests and other legal rights without due process and in violation of their right to equal protection under the law," the retailers said. "It must be struck down to prevent the substantial continuing harm that plaintiffs, hundreds of other businesses, and thousands of employees at indoor malls and shopping centers throughout the county face."

The class plaintiffs, My Dream Boutique, Salon Dioro and Al-Azim, want to represent a class of all retailers at Westfield Topanga, Fashion Square, Westfield Culver City, Westfield Santa Anita and Valencia Town Center malls that do not have an exterior entrance, are not "essential businesses" as defined by L.A. County and remain closed to the public for in-person shopping.

The suit seeks a declaration that the county order is invalid and injunctive relief preventing the county order from being enforced, as well as damages and attorney fees.

In a statement to Law360 on Tuesday, the county declined to comment on the litigation but said it continues to assess the data, science and state guidelines in relation to the reopening of community and economic sectors.

"From the onset of the pandemic, Los Angeles County has been intensely committed to protecting the health and safety of its residents through an unprecedented crisis using science and data and responding in real time to a deadly and previously unknown virus that has tragically claimed thousands of lives and upended life for millions of people — not just in Los Angeles County but across the nation and around the world," the county said.

Counsel for the retailers did not immediately respond to a request for comment.

The retailers are represented by Michael G. Romey, Sarah F. Mitchell, Richard P. Bress, Andrew D. Prins and Eric J. Konopka of Latham & Watkins LLP.

Counsel information for L.A. County was not immediately available.

The suit is My Dream Boutique et al. v. County of Los Angeles et al., case number 2:20-cv-08896, in the U.S. District Court for the Central District of California.

--Editing by Orlando Lorenzo.

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