NY Law Firm's Suit Over Virus Closure Orders Tossed

By Clarice Silber
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Law360 (December 4, 2020, 6:43 PM EST) -- A New York federal court has granted the Empire State's bid to throw out a law firm's allegations that state officials abused their power by ordering the firm to stop doing business in-person due to the pandemic.

U.S. District Judge Judge John Sinatra Jr. accepted the state's argument that HoganWillig PLLC's suit is moot because the executive orders it challenges have been lifted, dismissing the claims Thursday without prejudice, allowing the firm to file a new complaint.

The Western New York firm sued Gov. Andrew Cuomo and state Attorney General Letitia James in May, challenging executive orders the governor signed in March that restricted business activities.

The firm alleged that the orders violate the U.S. Constitution and that James' assertions that businesses will face civil and criminal penalties for not complying violate the firm's rights under the equal protection clause.

The law firm said in a statement Thursday that it will ask the court to rule on the constitutionality of the actions taken by Cuomo and James, because even though the court decided the matter was moot, "there is the potential for repetition of burdensome interference by the Defendants at any moment."

HoganWillig has brought four lawsuits on behalf of commercial businesses, and will bring others on behalf of hair salons, barber shops, aestheticians, fitness centers, restaurants and bars, according to the release.

New York urged Judge Sinatra to toss HoganWillig's lawsuit in August, arguing that none of the law firm's claims were viable, particularly since Cuomo's executive orders aimed to combat the coronavirus public health crisis.

"A chorus of courts across the country recognized that some individual rights must give way to a deeper need to control the spread of infectious disease and protect the lives of its citizens," the motion said. "Chief Justice [John] Roberts reiterated recently that state officials' latitude is especially broad when they act in areas fraught with medical and scientific uncertainties. HoganWillig was not somehow exempt from these bedrock principles and had no sound basis to challenge the defendants' actions when this suit was commenced."

Even after being designated as an "essential business," HoganWillig purportedly received a "cease and desist" letter in April from state officials, calling for the firm to stop employees from reporting to its office in Getzville, according to the complaint.

HoganWillig said it submitted plans to the state for how to reduce the number of employees who report to the office, including the use of electronic monitoring for workers, but the lawsuit claims that state officials were dissatisfied with the firm's remedies. HoganWillig's lawsuit asked the court to issue an order barring Cuomo and James from abusing their power and order the state to pay for its attorney fees and costs.

But in its motion to dismiss the lawsuit, the state said the firm received the cease-and-desist letter because it appeared to be violating state orders by allowing workers to conduct real estate transactions in-person and perform business in its offices that could be done remotely.

The state noted it had received multiple complaints that HoganWillig was requiring attorneys and staff to report to the office for work regardless of whether the tasks could be done remotely and that the firm's insistence that it was "encouraging" workers to stay home does not comply with Cuomo's orders.

Cuomo's office did not immediately respond Friday to a request for comment.

HoganWillig is represented in-house by Corey J. Hogan.

Cuomo and James are represented by George Michael Zimmermann of the Office of the New York State Attorney General.

The case is HoganWillig PLLC v. Letitia James et al., case number 1:20-cv-00577, in the U.S. District Court for the Western District of New York.

--Additional reporting by Dorothy Atkins and Kevin Penton. Editing by Breda Lund.

For a reprint of this article, please contact reprints@law360.com.

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Case Information

Case Title

Hoganwillig, PLLC v. James et al


Case Number

1:20-cv-00577

Court

New York Western

Nature of Suit

Constitutional - State Statute

Judge

John L. Sinatra, Jr.

Date Filed

May 13, 2020

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