Back in 2019, “essential business” were considered by the Federal government, to include (in order of total percentage in global industry) health care, food and agriculture, industrial and manufacturing (specifically for food and pharmaceuticals), and government. When Doomsday struck in 2020, and closures were being mandated in Gotham City, the Gotham City governor listed specific “essential businesses” that were allowed to be opened, which, when you read his descriptions, pretty much included every business you can think of. Grocery stores were essential. Healthcare providers. Financial services such as banks and accountants, and of course attorneys. Transportation was deemed essential, including services such as auto and bike repair.
All contractors were deemed essential, such as electricians and plumbers. Landscaping, except for purely cosmetic reasons, was deemed essential. News and media were essential, thus including every digital marketing company. Of course, schools and religious institutions were essential. As such, nearly every business one could think of was “essential”, and if you wanted to remain open and operating, a business found an angle to have themselves fall under some category or another.
Even Professor Hugo, the evil diabolical mad scientist, who performs unsanctioned procedures on victi… um, patients. He stayed open, on the basis that he performs “medical procedures” such as “pain management”, through his hypnosis and surgical techniques.
Now, in his wisdom, the Gotham governor also declared that any persona guarantor for a non-essential business was exempt from paying rent, and essentially could avoid having to pay any guarantee on rental arrears.
As you’d expect, Professor Hugo didn’t pay his rent, and his landlord hired my firm to sue Hugo’s business for rental arrears, and go after Hugo for the personal guarantee. Hugo turned around to cry that he should fall under the governor’s exemption. After all, his brand of “medical procedures” were not explicitly listed in the essential business list.
We sued, filed a motion for summary judgment, and Hugo made his argument that since he was ordered to close, he should fall under the governor’s rules.
The Court held, “We explicitly reject the Defendant’s affirmative defense of impossibility and frustration of purpose. As Plaintiff’s counsel properly points out, and demonstrates from exhibits from Professor Hugo’s website, Hugo was open and operating during the lease term, and never closed. As they held themselves out to be an essential business during that time, that cannot have their cake and eat it too.”
Sometimes, the good guys win, and justice served, even in Gotham City.