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Law360 (August 7, 2020, 7:24 PM EDT ) A New Jersey gym's attorney pulled out Friday from its high-profile brawl with the state over COVID-19 restrictions after the lawyer said he refused to pursue a certain "litigation strategy" demanded by the business as it faces possibly more than $15,000 in daily sanctions for defying pandemic measures.
Christopher M. Arzberger of Russell Friedman Law Group LLP agreed to have John McCann take over as the attorney for Atilis Gym of Bellmawr in a state suit against the business from the state health commissioner, Judith Persichilli.
A substitution of attorney was filed with the court Friday, a day after Arzberger moved to withdraw himself and his firm as counsel for the gym.
In a Thursday certification for that motion, Arzberger said "significant differences as to the approach to our representation of our clients have developed, and the relationship between attorney and the clients have deteriorated to the point that further representation is not in the clients' best interest."
"To protect attorney-client privilege, I am only at liberty to disclose that our clients wish us to pursue a specific litigation strategy, and as [an] attorney practicing before this court, I am unable to accommodate the request," Arzberger wrote.
Arzberger declined to comment Friday on his reasons for withdrawing from the case and the "specific litigation strategy" that the gym wanted him to pursue.
The shake-up in Atilis Gym's legal representation comes as the state asked Superior Court Judge Robert T. Lougy on Thursday to slam the business with sanctions of about $15,497 for each day it continues to violate the judge's July 24 order, which found the gym in contempt of an earlier order to limit operations. The state also is seeking attorney fees of $10,481.
The state indicated that the proposed sanctions were designed to potentially drain the $152,298 that Atilis Gym has raised through GoFundMe "for the express purpose of paying fines, penalties, and court costs related to its non-compliance with closure orders."
"Because the daily monetary sanction amount must deplete this stockpile in order to disincentivize Atilis Gym from remaining open, the daily monetary sanction amount cannot be lower than $15,229.80 per day — calculated to deplete the current stockpile within 10 days, and representing a figure in excess of the daily addition to the stockpile," the state said.
The legal battle kicked off in May with the present suit and a related federal action after the gym opened in defiance of Gov. Phil Murphy's nonessential business ban during the pandemic. A federal judge on June 19 reasoned that the fight belonged in state court.
The governor later eased restrictions on gyms, saying they could offer "individualized indoor instruction by appointment only where an instructor is offering training to an individual, and the individual's immediate family members, household members, caretakers, or romantic partners," according to a June 26 executive order.
If multiple simultaneous instructions took place, they had to happen in separate rooms or be separated by a floor-to-ceiling barrier, the executive order said.
Judge Lougy on July 20 directed the gym to comply with those modified rules. Four days later, the judge held the business in contempt after the state filed a motion detailing continued noncompliance that was unearthed by health department inspectors and a surveillance team.
Atilis Gym co-owners Ian Smith and Frank Trumbetti were then arrested July 27 on charges of contempt, obstruction and violation of the New Jersey Disaster Control Act. The men were later released.
In the state's pending sanctions bid, officials claimed Thursday that Smith and Trumbetti kicked down a barricade on the gym's premises on Aug. 1 and let in patrons as a crowd of onlookers cheered.
"Defendant Atilis Gym's brazen conduct is abhorrent to an organized judicial system, jeopardizes the public health and the safety of New Jersians, and must not be tolerated," according to the state.
New Jersey is represented by Stephen Slocum of the attorney general's office.
The gym is represented by John McCann.
The case is Persichilli v. Atilis Gym of Bellmawr, case number MER-C-48-20, in the Superior Court of New Jersey, Mercer Vicinage Chancery.
--Additional reporting by Jeannie O'Sullivan. Editing by Abbie Sarfo.
For a reprint of this article, please contact reprints@law360.com.
