Suing in a Class Action Claiming a COVID Closure or Restriction Is an Unconstitutional Taking for Which Fair Compensation Is Required

Suing in a Class Action Claiming a COVID Closure or Restriction Is an Unconstitutional Taking for Which Fair Compensation Is Required

By Thomas R. Theado, Esq.

You own a restaurant. Its occupancy permit allows seating of 112. COVID restrictions limit your seating to 42, and you have to close at 10:00 p.m.

You had a bustling hair-styling salon until mid-March. COVID regulations required you to close, for months.

You understand why these restrictions were imposed. You support social distancing and the public’s safety. You understand that the seating you lost and the shop that closed were for the public’s benefit. But (you ask yourself) why is the cost, the burden, of providing that benefit only mine to bear? Why can’t the citizenry that’s benefitting from my loss help pay for the benefit that they’re receiving? It shouldn’t be just on me. Is that fair?

It’s probably not lawful.

When the government — a health department or a city or the county or the state — takes private property, it must pay the owner fair compensation — not what the government says is fair, but what the owner agrees is fair or what a court decides, after considering all the evidence and arguments, is fair. That’s nothing new. That’s a constitutional guarantee. If the government needs five feet of your yard to widen the road in front of your house, the government can take those five feet so long as it pays you fair compensation. Shouldn’t that rule apply to COVID closures and restrictions?

You’re not challenging the regulations. But should your closed or restricted business bear all the burden alone? Shouldn’t the government, that takes the seating or closes the shop, pay fair compensation for what it takes? The cost of what helps everyone — schools, policing, fire protection, child protection, streets — should be borne by everyone. That’s the fair thing to do, and that’s what the law requires.

But a small restaurant or a four-chair styling salon can’t afford to take on the government. And that’s where another legal tool can come to the rescue — class-action litigation, where a few injured persons sue on behalf of many similarly injured persons. In a class action, the claims of many persons are combined to allow substantial, expensive litigation that a single business can’t afford. And, if successful, the class action benefits every class member.

Questions? Please give Our Team a call at 440.695.8000.

 

This article provides an overview and summary of the matters described therein. It is not intended to be and should not be construed as legal advice on the particular subject.