By Sameer Rao

Law360 (January 4, 2021, 3:59 PM EST ) HoganWillig PLLC has asked a New York federal court to reconsider its dismissal of the Western New York law firm's challenge to the state's order to stop in-person business due to the COVID-19 pandemic.

The law firm said the Western District of New York erred in early December when it granted state Attorney General Letitia James and Gov. Andrew Cuomo's motion to dismiss the suit that HoganWillig brought against them in May, according to a memorandum filed on Thursday. HoganWillig also challenged the state's authority for issuing and enforcing executive orders that purport to target the spread of the novel coronavirus.

HoganWillig initially sued the state leaders in spring for issuing it a cease-and-desist order over its face-to-face business practices. The firm had claimed that the order and corresponding executive orders restricting business activities amounted to an abuse of power by state leaders that violated both constitutional and equal protection clause rights.

In dismissing the suit, the judge said the claims were moot, because the challenged executive orders had been lifted.

But the firm asserted that because of the threat of future executive orders and related anti-COVID-19 initiatives in its geographic region, the claims are still not moot.

"The reality is that, without any advance notice, defendants could, under their purported authority pursuant to Executive Order 202.68, declare the localities in which plaintiff conducts business a 'Red Zone,' and force plaintiff to close," the memo read. "This is precisely what defendants have done to multiple other businesses throughout the Western District of New York."

The firm also reiterated its claims' legal standing on the basis of alleged negative impacts on its business, as well as the issuance of the cease-and-desist order.

"Here, in addition to the loss of plaintiff's client base due to defendants' business closures, threatened consequences by a governmental agency or body also give standing for the instant lawsuit," the firm argued. "Plaintiff was forced to implement procedures and protocols, leading up to tooling up for electronic monitoring of its employees, that are more limiting and restrictive than the social distancing and mask mandates required by the state, all at a concrete cost to plaintiff, and will only continue to suffer such harm, costs, and expenses as defendant Cuomo's Executive Order 202.68, and 'Cluster Zone Initiative,' are now in full force and effect in Erie County."

"Moreover, despite Plaintiff's compliance with the Executive Orders, the fact of the matter is that Plaintiff's complied with unconstitutional Executive Orders, which is, in and of itself, damaging," the firm added.

HoganWillig lead counsel Steven M. Cohen told Law360 that although the attorney general's office had "backed off" on enforcement measures against the firm, including counting employees' cars in its parking lot and requiring records of attorneys' work, there remained a possibility that such measures could return. He asserted that the COVID-19 pandemic did not give authorities power to act without due process.

"Our goal here is to have his honor, Judge [John] Sinatra, look at not only the harm to our client, but to the underlying process, and to say, 'We still have a Constitution in this country, and you don't throw the Constitution in the garbage just because there's a pandemic,'" he told Law360. 

The latest filing echoes HoganWillig's other lawsuits on behalf of businesses in its region. The firm argues the businesses are facing threats of closure and lost income because of the state's allegedly specious and inconsistent enforcement of COVID-19 restrictions.

"The governor, [by] taking away people's liquor licenses, and the state health department taking away their kitchen licenses because they claim the ventilation isn't adequate in the outdoor tents, deprives people of due process in a way that the American people will not tolerate," Cohen said. "This is a nation founded on the will to be free, and if this goes on for much longer, we will see civil unrest." 

A representative for James' office deferred comment to Cuomo's office, which did not immediately return a request for comment.

HoganWillig is represented by its own attorneys, Corey J. Hogan, Steven M. Cohen, Nicholas A. Taylor, Pia Perfetto, Jeffrey B. Novak and Alex M. Neurohr. 

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 Clarice Silber and Kevin Penton. Editing by Nicole Bleier.

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