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Law360 (August 11, 2020, 9:20 PM EDT ) New York state urged a federal judge Tuesday to toss 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, saying the firm isn't "somehow exempt" from orders aimed to protect the public health.
In a 63-page motion to dismiss, the state attorney general's office argued that none of HoganWillig PLLC's "plethora" of claims is viable, particularly since Gov. Andrew Cuomo's executive orders aim 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 says. "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."
The firm sued Cuomo and state Attorney General Letitia James in May challenging executive orders Cuomo signed in March that restricted business activities. The firm alleges that the orders violate the U.S. Constitution and that James' assertions that businesses will face civil and criminal penalties for not complying violates the firm's rights under the Equal Protection Clause.
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, New York, 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 asks 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 Tuesday, 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 performed remotely.
The state noted that it had received multiple complaints that the firm was requiring attorneys and staff to report to the office for work regardless of whether the tasks could be done remotely and the firm's insistence that it was "encouraging" workers to stay home does not comply with Cuomo's orders.
The state said ultimately the lawsuit can't move forward, because it ignores the fact that Cuomo has issued 40 executive orders related to the coronavirus and business closures since March and the orders the lawsuit complains about have been lifted. Therefore, the firm's legal challenges are moot, its business isn't being harmed and the firm doesn't have standing to state a claim for relief, the motion says.
"Any argument that plaintiff could be injured if the governor imposed new restrictions if COVID-19 infections rates increased exponentially in Western New York and that plaintiff might be injured if such [executive orders] applied to it is an accumulation of inferences that is too speculative to supply a predicate for prospective injunctive relief and does not show a real and immediate threat of injury," the motion says.
Even if the law firm could show it was being harmed, the state argues that sovereign immunity bars such claims against the governor and James. The claims also fail under the U.S. Supreme Court holding in its 1905 decision in Jacobson v. Commonwealth of Massachusetts
that "a community has the right to protect itself against an epidemic of disease which threatens its members," the motion says."It cannot seriously be disputed that limiting in-person contact in the workforce to only essential business activity bore a real and substantial relation to suppressing the spread of the COVID-19 virus," the motion says.
The state also argued that the firm's claims fail for a host of other reasons, including that they aren't adequately pleaded, they aren't supported by the evidence, they aren't ripe and they fall "woefully short" of stating a claim. The state asked the judge to grant its motion to dismiss, deny the firm fees and costs and end the case for good.
A hearing on the motion is set for Oct. 21 before U.S. District Judge John L. Sinatra Jr.
Representatives for the parties didn't immediately respond Tuesday to requests for comment.
HoganWillig is represented in-house by Corey J. Hogan.
James and Cuomo 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 Kevin Penton. Editing by Michael Watanabe.
For a reprint of this article, please contact reprints@law360.com.
