More bar owners drop out of COVID shutdown lawsuit

Fifteen more plaintiffs are dropping out of a six-year-old lawsuit challenging then-Gov. Roy Cooper’s decision to keep North Carolina bars closed during the COVID pandemic.

A judge could decide this month to remove another 10 plaintiffs from the case.

Bar owners claim Cooper violated their rights when he forced their businesses to remain closed as others reopened during the pandemic. The North Carolina Supreme Court ruled in August 2025 that the case could proceed.

Superior Court Judge Edwin Wilson will hear arguments on Aug. 18 about whether to force Cooper and his former top health official to provide depositions in the case, which was filed in 2020 by the North Carolina Bar and Tavern Association.

The case started with more than 200 plaintiffs. Arguments during a July 7 court hearing indicated the number of plaintiffs had dropped to 52.

A court filing Friday indicated that 15 of the remaining plaintiffs dismissed all claims in the case voluntarily. The dismissal was “without prejudice,” meaning the claims could be filed again at a later date.

The plaintiffs’ lawyers filed a separate motion Friday seeking to drop their representation of another 10 bars or bar owners. A court filing indicates the lawyers have had not had contact with any of the targeted clients since April. In at least one case, lawyers have had no contact this year with a bar owner plaintiff.

The bar owners’ lawyers seek to address the issue of the 10 unresponsive bar owners during the Aug. 18 hearing.

Wilson ended a July hearing by denying bar owners’ request to bifurcate, or split, their case into two parts. The first part would have determined the governor’s liability for financial losses tied to bar shutdowns in 2020 and 2021. The second part would have involved the discovery process for assessing damages.

The bar owners’ lawyers specifically objected to lawyers from the North Carolina Department of Justice “smothering our clients” with requests for information. DOJ lawyers defended the requests as necessary to determine which bar owners have legal standing to take part in the case.

The DOJ lawyers work for North Carolina Attorney General Jeff Jackson. They represent Gov. Josh Stein, the official defendant in the case. Stein became the defendant last year when he succeeded Roy Cooper.

The governor’s lawyer suggested in July that the “mass exodus” of plaintiffs was likely tied to the requests for information during the legal process known as discovery.

“There are a lot of really small businesses,” responded Bob Orr, the former North Carolina Supreme Court justice who is helping to represent the bar owners. “After six years, many of them have given up. They’re throwing in the towel.”

Orr accused DOJ lawyers of “overcomplicating” the case. He reminded Wilson that the state Supreme Court’s decision ordered the trial court to determine whether Cooper made a reasonable decision when he ordered private bars to remain closed in 2020 as other businesses reopened.

“The burden of proving the reasonableness of the decision is on the governor,” Orr said. “The burden is not on the plaintiffs.”

Mike Tadych, also representing the bar owners, accused Cooper of performing “Kabuki theater” in 2020 when he forced private bars to remain closed while allowing restaurants, breweries, wineries, country clubs, and every other type of establishment with an alcohol license to reopen.

The state Supreme Court ruled in August 2025 that bar owners in two cases could move forward with their claims. Both lawsuits challenged Cooper’s executive orders shutting businesses down during the COVID pandemic. The Howell v. Cooper case ended in June after a successful mediation.

Bar owners in the NCBATA case filed a court document in June suggesting that state government lawyers representing Cooper are trying to shield him from providing testimony under oath as he runs for Senate.

The plaintiffs filed a “motion to compel” on June 25. It targeted Cooper and Mandy Cohen, his secretary for the Department of Health and Human Services. A court filing the following day criticized lawyers representing Cooper and Cohen for seeking a delay in dealing with the motion. The same lawyers represent Stein, who became the official defendant in the lawsuit when he succeeded Cooper last year.

“It is not clear from defense counsel’s informal motion to continue whether the request is submitted on behalf of the Defendant, one or both of the nonparty witnesses, or some combination of those jointly represented parties,” the bar owners’ lawyers wrote Friday. “However, it is apparent that the request is not motivated by a legitimate need for additional time to respond.”

“Rather, it appears to be more likely motivated by a desire to shield former Governor Cooper, who is currently running for elected office, and perhaps also former Secretary Cohen, from having to provide testimony under oath regarding the reasons for their decision to deprive the Plaintiffs of their means to make a living for over a year, while allowing many similarly situated businesses to open,” the court filing continued.

“This case has already been pending for over six years,” the bar owners’ lawyers added. “Delaying the hearing on Plaintiffs’ Motion to Compel, which would in turn delay the depositions of former Gov. Cooper and former Sec. Cohen, would prejudice the Plaintiffs by even further delaying the ultimate resolution of this case.”

The motion to compel recapped Cooper’s role in the dispute.

“On 17 March 2020  — St. Patrick’s Day, typically the busiest day of the year for bars — Gov. Coooper issued Executive Order 118,” the court filing explained. “This order allowed limited drive-through, carry-out, and delivery operations of certain ‘permitted food establishments,’ but required the closure of Plaintiffs’ bars entirely.”

On May 20, 2020, a new Cooper executive order “permitted seven of the eight types of bars in North Carolina to re-open pursuant to guidelines,” according to the motion. “The plaintiffs were of the eighth type of bar, so they were required to remain closed.”

Eight days later, Cooper said in a media briefing “his decision to exclude Plaintiffs’ bars from Phase 2 re-opening was based on ‘data and science’ and ‘daily briefings from doctors and healthcare experts,’” the motion added.

The following day — May 29, 2020 — lawyers working the plaintiffs requested public records related to the “data and science” and the briefings. The governor “did not provide any records responsive to the request” until September 2020. “In the meantime, Gov. Cooper kept most of Plaintiffs’ bars closed in their entirety,” the motion explained.

“From 17 March 2020 through 14 May 2021 Gov. Cooper’s Executive Orders prohibited Plaintiffs’ bars from operating either entirely or on any reasonably profitable basis,” according to the motion. “The other seven types are bars were permitted to reopen and survive.”

With the case back at the trial court level this year, the bar owners issued deposition subpoenas for Cooper and Cohen on March 17. Lawyers representing Cooper, Cohen, and current Gov. Josh Stein took issue with the subpoenas.

They “did not allow a reasonable time for compliance, because the witnesses would need significant time to refresh their recollections and were not available on the designated dates” in April, according to the court filing.

“The subpoenas were unreasonable and oppressive because the deponents were ‘executives,’ who may only be deposed if they have ‘unique or special knowledge of the facts at issue’ and other less burdensome means have been exhausted,” the defendants’ lawyers argued. The subpoenas also “had not been properly served.”

The bar owners’ lawyers tried again for depositions on May 26-27. Lawyers for Cooper and Cohen responded with a letter repeating their earlier objections. The letter also argued that “[d]iscussions that Governor Cooper and Dr. Cohen may have engaged in regarding the issuance of the executive orders may be protected by the attorney-client privilege and/or deliberative process privileges.”

The defense letter “closed by inviting discussion of a resolution of the matter that would not involve former Gov. Cooper and Sec. Cohen appearing for depositions,” according to the bar owners’ motion.

Now the plaintiffs are asking Wilson to order depositions from Cooper and Cohen within 45 days of his ruling on the motion to compel.

The state Supreme Court split, 5-2, in ruling last year that bar owners working with NCBATA could proceed with their case.

“According to the trial court, Cooper’s executive orders restricted full operation of plaintiffs’ establishments for over 400 days while permitting other businesses to reopen,” Justice Phil Berger Jr. wrote for the majority. “Plaintiffs argue that the closure and differing treatment violated constitutional and statutory guarantees. Governor Cooper contends that the measures were based on science and data and were necessary responses to an ongoing emergency.

“But even in a declared emergency, the powers of those who act on behalf of the people have limits, and the citizens of this state rejected ‘because I said so’ governance long ago,” Berger added. “However well-intentioned government actors may be, they are constrained by the enduring commands of the Constitution; and constitutional guarantees cannot be suspended in this state by executive fiat.”

Berger cited the 2024 Kinsley v. Ace Speedway case, in which “we unanimously established a workable Fruits of Labor test.”

The high court tasked a trial judge with addressing the “fruits of labor” claims. The Supreme Court rejected other pieces of the case dealing with equal protection claims and alleged violations of the Emergency Management Act and Public Records Act.

Justice Allison Riggs wrote for the two dissenting Democrats.

“The Corum claim of the North Carolina Bar and Tavern Association (the Association) under the Fruits of Their Own Labor Clause should be barred on the basis of sovereign immunity because the members of the Association have an adequate alternate remedy under the law, a claim for compensation under the North Carolina Emergency Management Act,” Riggs wrote. “Thus, I would conclude that the trial court properly entered judgment in favor of the Governor on his motion to dismiss the Fruits of Their Own Labor claim.

“[T]he Association has not met its burden of forecasting evidence that (1) there was not a ‘proper government purpose for the [state action]’; or (2) the ‘means chosen to effect that purpose’ were not ‘reasonable,’” Riggs added. “Although the Association claimed otherwise in its complaint, it put on no competent evidence in seeking summary judgment that the Governor’s stated purpose for entering Executive Order 141 — slowing the spread of COVID-19 to save lives — was an improper purpose or that the Governor’s actual purpose was something different.”

“More bar owners drop out of COVID shutdown lawsuit” was originally published on www.carolinajournal.com.