An ongoing legal dispute between the owners of White Flint Mall and Lord & Taylor, now entering its third year, may soon be resolved.
A federal judge has scheduled a jury trial in the case, which is set to begin July 28 in U.S. District Court for the District of Maryland in Greenbelt. The trial is scheduled to last eight days and end on Aug. 7, according to court records.
The jury will then be tasked with determining what damages, if any, Lord & Taylor should receive based on its claim that the mall’s owners, Lerner Enterprises and the Tower Cos., violated a 1975 easement agreement by moving forward with redevelopment plans and closing the mall.
Scott Morrison, a trial attorney with Katten Muchin Rosenman LLP, who is representing the mall’s owners, said Thursday he expects the trial to take place as scheduled because no settlement talks are taking place.
“If it doesn’t settle, it’ll go” forward, Morrison said. He added that both sides will receive more information about the trial schedule at a hearing Monday before Judge Roger W. Titus.
Morrison said White Flint plans to call six witnesses to make its case, while Lord & Taylor, the plaintiff, plans to call 53 witnesses.
Morrison said the retailer hasn’t informed White Flint’s owners about how much money it may be seeking in monetary damages or if it plans to seek other damages.
An attorney for Lord & Taylor did not respond to a request for comment about the damages it seeks Thursday.
Lord & Taylor claims the mall’s owners violated a clause in the easement agreement that states they would maintain the mall as a “first-class, high-fashion retail shopping center” until at least 2042.
Since the beginning of the year, the mall has been closed with security guards patrolling its exterior. However, the Lord & Taylor store, which is attached to the mall building, remains open.
Michelle Gambino, a trial attorney with Greenberg Traurig LLP, which is representing Lord & Taylor, wrote in a May email that, “While Lord & Taylor is not against change, it is against having its rights bulldozed over.” She also wrote that the retailer plans to hold White Flint accountable “for the substantial damages it has caused to a store that has been in existence for over 35 years in Montgomery County.”
In order to help make its case, Lord & Taylor filed a motion in June asking that the jury be allowed to visit the mall site during the trial.
“Without question, a view of the property will give the jury a comprehensive and firsthand understanding of the Mall, its design, layout and surroundings, and a better appreciation of the impact [the] proposed redevelopment will have on the site,” Lord & Taylor’s attorneys wrote in the motion.
White Flint’s attorneys responded in a motion by saying a tour of the site would be “a total waste of time” and argued there’s no evidentiary value in “parading the jury around” the mall building that’s currently being demolished. On Thursday, Judge Titus agreed with White Flint's attorneys and ordered the jury does not need to see the mall site.
Both sides’ strategies are becoming more apparent as dozens of motions are filed ahead of the trial. Lord & Taylor appears to be gearing up to prove that the mall’s owners have significantly damaged the profitability of its store by closing the mall. On the other side, the mall’s owners appear ready to make the case that redevelopment of the site would increase the profitability of the retail store over the long-term.
A resolution to the case could enable the mall owners to move forward with their development plan. In 2012, Montgomery County approved a sketch plan to redevelop the mall with more than 2 million square feet of retail and office space, more than 2,400 apartment units, a hotel and an estimated 13 acres of public open space. County leaders describe the project as a key piece of an updated White Flint or Pike District urban corridor along Rockville Pile.
In May, Robert Brewer, a land use attorney representing the mall’s owners, said the mall could submit its first-phase site plan to the county’s planning department a few months after the case is resolved.