Law360: NRA Seeks 2nd Circ. Rehearing In Free Speech Dispute

October 11, 2022 - Law360 reports that Brewer client, the National Rifle Association of America (NRA), is asking a "Second Circuit panel for a rehearing after the court found that an investigation into insurers partnered with the NRA and statements by a former New York official advising NRA-affiliated businesses to assess their reputational risks did not violate the gun advocacy group's constitutional rights."

The NRA filed a petition for rehearing en banc on October 6, 2022, asserting that the three-judge panel that overturned its free speech win ignored "clearly-established law that selective enforcement regimes violate the First Amendment." The panel's decision reversed a district court ruling, resulting in the dismissal of individual claims against former Department of Financial Services Superintendent Maria Vullo.  

"The NRA believes, as do most First Amendment scholars, that a government official should not be allowed to target her political enemies and then weaponize the power of her office against that group. The concept, which is unremarkable, restrains 'viewpoint discrimination,'" William A. Brewer III, counsel for the NRA, said in a statement to Law360.

"Numerous legal experts and constitutional scholars join the NRA in recognizing the First Amendment forbids such action. The association will continue to pursue this matter in support of its members and their constitutional freedoms," Brewer said.

Read the report (subscription required). 

First Amendment Watch Reports on Second Circuit Dismissal of NRA Claims Against NY State Financial Regulator

October 4, 2022 – First Amendment Watch, a project of Arthur L. Carter Journalism Institute at New York University, published an article chronicling the NRA's First Amendment lawsuit against former New York Department of Financial Services Superintendent Maria Vullo. On September 22, 2022, the United States Court of Appeals for the Second Circuit reversed a lower court decision and dismissed claims against Vullo individually. 

The case stems from the 2018 “blacklisting campaign” against the NRA, in which, the NRA alleges, former New York Governor Andrew Cuomo and Vullo attempted to coerce banks and other financial institutions from doing business with the NRA. As is noted by First Amendment Watch, a host of legal experts, including the ACLU, sided with the NRA and recognized the implications of such actions.

As reported, NRA attorney William A. Brewer III of Brewer, Attorneys & Counselors described the Second Circuit decision as “unfortunate” because Vullo never sat for a deposition to share what may have been happening behind closed doors. 

Brewer further told First Amendment Watch that the issue at hand is that government officials should not single out opposing viewpoints and then use their power to silence them. “He [Cuomo] clearly targeted his longtime adversary, the NRA, and enlisted Vullo,” Brewer said.

Although the NRA’s claims against Cuomo are not encompassed by this ruling, the decision will, the NRA believes, encourage exactly the corrupting effects scholars have warned against.

The NRA, according to Brewer, is weighing all of its options and “anxiously wants to get the case to trial against former Gov. Cuomo.” First Amendment Watch reports that, in regard to this decision, the NRA could either file a motion to rehear en banc, meaning the entire court reconsiders the case, or accept the decision and file a writ of certiorari.

“I think there’s little or no chance that the NRA will not pursue one of those options given how important this precedent is,” Brewer said. If none of them is successful, he believes “there’s a significant likelihood that the NRA would take this up to the Supreme Court, where the NRA is no stranger.”

Read the report here. 

Brewer Comments on Ruling That Dismisses NRA Claims

September 23, 2022 – Law 360 and several other media outlets quoted William A. Brewer III in connection with recent developments regarding the NRA’s lawsuit against former New York Department of Financial Services (NYDFS) Superintendent Maria Vullo. A panel of three Democratic appointees in the Second Circuit Court of Appeals has reversed repeated holdings by the trial judge in the NRA’s First Amendment case against Vullo – and dismissed the claims against Vullo individually.

The case stems from the 2018 “blacklisting campaign” against the NRA, in which, the NRA alleges, former New York Governor Andrew Cuomo and Vullo attempted to coerce banks and other financial institutions from doing business with the NRA.

The NRA is investigating its options, under belief that the Second Circuit’s decision misstates facts of the case and gravely weakens First Amendment protection for controversial speakers who wish to access financial markets. 

Brewer told Law 360, "The Second Circuit's decision regarding the NRA's claims against Ms. Vullo misstates the facts, and offends the First Amendment. "[The decision] endorses a radical idea: that financial regulators can selectively punish businesses to advance 'public policy,' including 'social issues' such as gun control.  This is a derogation of the First Amendment that should not prevail."

 To read more, click here.

Bloomberg Law Chronicles Legal Misfortunes of Case Against NRA

August 10, 2022 – Bloomberg Law reported today on the legal misfortunes of a plaintiff’s pursuit of Brewer client the National Rifle Association of America (NRA). The reporting notes the potential demise of a 2019 lawsuit filed by former NRA donor David Dell’Aquila.

According to the article, “The NRA contends the lawsuit is baseless.” 

“The majority of Mr. Dell’Aquila’s claims have been rejected by the courts—evidence this is a frivolous pursuit,” NRA lawyer William A. Brewer III said in a statement. “The NRA’s commitment to good governance is clear.”

To read more, click here.

Business Insider: NRA Pushes Back Against NY Attorney General's Demand for Independent Monitor

June 7, 2022 — Business Insider has published an article stating that Brewer client the NRA is "fighting back against New York Attorney General (NYAG) Letitia James' demand for an independent monitor who would oversee the gun group's operations, calling the idea 'intrusive, unnecessary and unprecedented.'"

On March 2, 2022, a New York court struck down attempts by NYAG James to dissolve the NRA – delivering a big win for the NRA. Since that loss, the NYAG "has amended her complaint but added no new factual allegations," the NRA states in its new court filing. 

"Rather, she asserts a new cause of action which seeks the intrusive, unnecessary and unprecedented appointment of an 'independent' compliance monitor to oversee the administration of the NRA, answerable to the NYAG's own office as well as the Court," the filing says. 

"There is no colorable practical need, and no legal basis, for the NYAG to contrive a de facto takeover of the NRA to replace her defunct dissolution claims," according to the filing. 

"Rather, the parties should proceed with discovery and trial on the NYAG's previously existing claims, and the new one should be dismissed."

To read more, click here.

CNBC Reports on Potency of NRA, Brewer Statement on Uvalde, Texas and Representation of Association

May 27, 2022 — CNBC publishs the report, “The National Rifle Association’s Lobbying Machine is Still Potent Despite Financial Woes That Reduced Its Clout.” 

The article states that the NRA’s “financial filings and lobbying disclosures show the group still has the means” to advocate for Second Amendment freedom — and is expected to play an active role in the upcoming midterms. 

The article notes that the NRA continues to have the “support of a key advisor that helped it weather its recent financial and legal troubles.” 

Brewer, Attorneys & Counselors, has represented the NRA since 2018 in connection with several legal and regulatory issues. As an example, in March, the firm and the NRA successfully defeated dissolution claims against the NRA by the New York Attorney General. The NYAG filed a lawsuit in August 2020 seeking to shut down the Association — an action that has drawn the rebuke of many legal experts and constitutional scholars, including the ACLU. 

The article reports that the Brewer firm has no plans to stop representing the Association. 

The firm said that it will “honor our commitments to the Association, its leadership, and millions of law-abiding members.” 

Regarding the recent school shooting in Uvalde, Texas, the firm said in a statement, “This was an incomprehensible tragedy – the act of a deranged person. We extend our prayers and deepest sympathies to the victims, their families and this entire community. We also join others in the call to provide protection in our schools – to make them safe and secure.”

To read more, click here.

New York Law Journal, Others Report on NRA Victory

March 4, 2022 — A front-page article in today’s New York Law Journal, “Manhattan Judge Rejects NY AG’s Effort to Dissolve National Rifle Association,” reports that a ruling by Manhattan Supreme Court Justice Joel Cohen dismissed New York Attorney General Letitia James’ effort to dissolve the organization.

The report notes that Cohen found that dissolving the NRA “could impinge, at least indirectly, on the free speech and assembly rights of millions of members” of the NRA.

The report adds that NRA lead attorney William Brewer applauded the ruling, stating, “This is a victory not only for the NRA, but all who believe in the right to free speech and association.”

The article follows positive reports from many news organizations, including the Associated Press, The Wall Street Journal, CNN, and the Daily Caller, among others. To read more in the NYLJ, click here.

Brewer News Release - NRA Prevails Over NYAG: Court Rules Association Cannot be Dissolved

March 2, 2022 — The National Rifle Association of America (NRA) scored a major legal victory today, as a New York court struck down attempts by the New York Attorney General to dissolve the 150-year-old organization. Following a two-hour hearing on December 10, 2021, the Hon. Joel M. Cohen of the New York State Supreme Court issued an opinion today that vindicates the NRA’s position:  the NYAG’s effort to shut down the Association ran afoul of common sense, New York law, and the First Amendment.  

“This is a resounding win for the NRA, its 5 million members, and all who believe in this organization,” says NRA President Charles Cotton. “The message is loud and clear:  the NRA is strong and secure in its mission to protect constitutional freedom.”

The NRA will defend against the surviving claims in the lawsuit – but today’s ruling declares that the NYAG cannot shut down the Association or seize its assets.  

 “We applaud the court’s recognition that dissolution is neither appropriate nor justified,” says William A. Brewer III, partner at Brewer, Attorneys & Counselors and counsel to the NRA. “We look forward to continuing the defense of the NRA – and proving that it acts in the best interests of its members and the Second Amendment freedoms in which they believe.”  

Emphasizing that the NRA is “a prominent advocacy organization that represents the interests of millions of members,” the court said the NYAG failed to meet the “rigorous” standard for state-sponsored dissolution of such a group – and her attempt raised free speech concerns. 

In an opinion, dated March 2, 2022, Justice Cohen writes, “The Attorney General’s claims to dissolve the NRA are dismissed.” It adds, “The Complaint does not allege that any financial misconduct benefited the NRA, or that the NRA exists primarily to carry out such activity, or that the NRA is incapable of continuing its legitimate activities on behalf of its millions of members.”

The NRA has argued that it has demonstrated a commitment to good governance, and long believed that the NYAG’s case was part of a political vendetta. NYAG James famously vowed to “target the NRA” and “investigate the legitimacy of the NRA as a charitable organization” while on the campaign trail in July 2018 – before spending even one day in office and without any evidence of wrongdoing. She filed a lawsuit in August 2020 seeking to shut down the Association.

The NRA has successfully proven there was no legal precedent or factual basis for the NYAG’s scorched-earth, politicized approach.

The court observes, “The Attorney General cites no case in which she or her predecessors have sought – much less obtained – dissolution under analogous circumstances.” The opinion also states, “…dissolving the NRA could impinge, at least indirectly, on the free speech and assembly rights of its millions of members. While that alone would not preclude statutory dissolution if circumstances otherwise clearly warranted it, the Court believes it is a relevant factor that counsels against State-imposed dissolution, which should be the last option, not the first.” 

In addition to the dissolution claims, the court also dismissed claims by the NYAG for unjust enrichment and violations of the Prudent Management of Institutional Funds Act. 

Against the backdrop of the NYAG’s lawsuit, the NRA is pursuing its own legal action against James. In a legal filing, dated February 23, 2021, the NRA responded to the August 2020 lawsuit filed by the NYAG. The filing alleges that her case is part of a crusade to silence a powerful political opponent – and its stated purpose to defend the Second Amendment.

According to the NRA’s filing, “James’s threatened, and actual, regulatory and civil reprisals are a blatant and malicious retaliation campaign against the NRA and its constituents based on her disagreement with the content of their speech. This wrongful conduct threatens to destroy the NRA and chill the speech of the NRA, its members, and other constituents, including like-minded groups and their members.”

Brewer adds, “Today’s developments underscore the simple truth that since taking office in 2019, the Attorney General has pushed a contrived narrative about the NRA in her attempt to support a dissolution claim that is improper. This is a victory for not only the NRA, but all who believe in the right to free speech and association.”

Attorneys for the NRA in this matter are William A. Brewer III, Sarah Rogers and Svetlana Eisenberg.