Columnist David French published a commentary in the National Review, “To Limit the Second Amendment, New York Attacks the First,” dated August 7, 2018, that offers support of a lawsuit filed by the NRA against New York Governor Andrew Cuomo and the New York State Department of Financial Services (DFS). Brewer, Attorneys & Counselors represents the NRA in the matter.
The suit alleges that the state violated the NRA’s First Amendment rights in connection with regulatory guidance issued to financial institutions urging them to not do business with the NRA. French writes that Governor Cuomo has no right to threaten financial institutions that do business with the NRA.
French writes, “State officials have their own free-speech rights, yes, but those free-speech rights do not include the right to use express or implied threats to wield state power against disfavored viewpoints.” In comments directed at Cuomo, he wrote that “the instant that malice translates into state action aimed at speech is the instant the Constitution holds you to account.”
NYLJ Reports on Firm’s Representation of NRA, Amended Complaint
The New York Law Journal reported on an amended complaint filed by Brewer, Attorneys & Counselors on behalf of the NRA against New York Governor Andrew Cuomo and the New York State Department of Financial Services (DFS). The front-page article, “NRA Claims Economic Hardship Fighting NY Insurance Regs,” dated August 1, 2018, reports that the complaint alleges that without injunctive relief, the NRA could be forced to cut services for its members. Partner William Brewer was quoted as stating that the NRA is “suffering setbacks” due to the state’s actions.
“The amended complaint raises concerns about the material impacts to the NRA as a result of the actions of Governor Cuomo and DFS,” Brewer said. “Our client is suffering setbacks with respect to the availability of insurance and banking services—as a result of a political and discriminatory campaign meant to coerce financial institutions to refrain from doing business with the NRA. The actions of defendants are a blatant attack on the First Amendment rights of our organization.”
The lawsuit was filed in May 2018, after the state advised insurers to cut ties with the NRA. The suit argues that the state violated the NRA’s First Amendment rights in connection with regulatory guidance issued to financial institutions urging them to not do business with the NRA.
Hamra Trust Sues Transamerica, Alleges Improper Universal Life Insurance Premium Increases
Brewer, Attorneys & Counselors, filed a lawsuit on July 19, 2018, against Transamerica Life Insurance Company (“Transamerica”) accusing it of improperly implementing a plan to increase premiums by 168 percent on a multimillion-dollar universal life insurance policy purchased nearly two decades ago. The suit was filed in the United States District Court for the Central District of California on behalf of Michael K. Hamra, trustee of the Sam F. Hamra, Jr. and June S. Hamra Irrevocable Trust (“the Trust”).
The lawsuit involves a “TransSurvivor” policy purchased by the Trust from Transamerica in 1999 on the lives of Sam and June Hamra. The policy includes a death benefit of $5,000,000. Over the years, the Trust paid, and continues to pay, millions of dollars in premiums for the policy. However, in a notice sent by Transamerica to the Trust and all other TransSurvivor policyholders in April 2018, Transamerica announced that it would implement a 39 percent monthly deduction rate (“MDR”) increase on the policy in each of the next three policy anniversary dates – on a compound basis. The increase translates to an extraordinary total increase of 168 percent, plaintiffs allege.
According to the complaint, Transamerica did not offer any contractual justification for the increase. The complaint alleges that Transamerica’s conduct violates the express language of the policy and the implied covenants of good faith and fair dealing, as well as California’s Unfair Competition Law.
“Sadly, Transamerica’s anti-consumer conduct continues unabated,” the complaint states. “Plaintiff’s insureds are now in their eighties and, due to age-related underwriting considerations, life insurance protection from other sources is either unavailable or prohibitively expensive. Therefore, Transamerica’s actions strip Plaintiff of any life insurance protection unless [the Trust] accedes to Transamerica’s improper demands.”
Significant Mobile Gaming Lawsuit Brought by App Developer Color Switch Proceeds
In an important development for Color Switch LLC and Color Switch Productions, Inc. (“Color Switch”), a federal judge in California granted a motion to allow Color Switch to serve a lawsuit against Fortafy Games DMCC (“Fortafy”) via email.
Color Switch attorneys Brewer, Attorneys & Counselors (“Brewer”) attempted multiple times to serve the lawsuit on Dubai-based Fortafy, but found the Fortafy company was not present at its listed address in the United Arab Emirates. Plaintiffs sought permission to serve Fortafy by alternative means, and U.S. Magistrate Judge Jennifer L. Thurston with the United States District Court for the Eastern District of California, granted the motion on May 21, deciding that service via email is “appropriate in this action.”
The lawsuit was filed on March 26, 2018. In granting the motion, the judge noted that, “…Fortafy has clearly indicated its preference to only communicate through email, and the co-founders of Fortafy have recently been in contact with Plaintiffs through several email addresses.” The judge added, “Thus, service at the addresses identified by Plaintiffs satisfies the due process requirement for the service method to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”
Color Switch seeks a declaration that it is the rightful owner of the game it developed, and seeks damages for the infringement of its copyright and theft of its property rights from Fortafy.. Fortafy published the Color Switch game app but refused to return the game and related property when the parties’ agreement ended in December 2017, essentially holding the game “hostage” and preventing millions of users from accessing it. The Color Switch game was created by famed developer David Reichelt. The gaming app has been downloaded more than 200 million times.
Bill Brewer praised the court’s decision. “We appreciate the court’s interest in this issue, and look forward to pursuing this matter further,” Brewer said. “We believe this case underscores the rights and responsibilities of parties involved in the development, design and marketing of gaming applications.”
Brewer Client NRA Sues New York Governor Andrew Cuomo, New York State Department of Financial Services Over Alleged Attack on First Amendment Rights
Brewer, Attorneys & Counselors is representing The National Rifle Association of America (“NRA”) in a lawsuit against the New York State Department of Financial Services (“DFS”), New York Governor Andrew Cuomo, and DFS Superintendent Maria T. Vullo alleging violations of the NRA’s First Amendment rights.
Filed on May 11, 2018, in the United States District Court for the Northern District of New York, the lawsuit claims that Cuomo, Vullo, and DFS engaged in a “campaign of selective prosecution, backroom exhortations, and public threats” designed to coerce banks and insurance companies to withhold services from the NRA. The NRA argues that such tactics vastly overstep DFS’s regulatory mandate, and seek to suppress the speech of Second Amendment supporters and retaliate against the NRA and others for their political advocacy. The lawsuit seeks millions of dollars in damages to redress harms inflicted by the DFS campaign.
“Political differences aside, our client believes the tactics employed by these public officials are aimed to deprive the NRA of its First Amendment right to speak freely about gun-related issues and in defense of the Second Amendment,” says William A. Brewer III, partner at Brewer, Attorneys & Counselors and counsel to the NRA. “We believe these actions are outside the authority of DFS and fail to honor the principles which require public officials to protect the constitutional rights of all citizens.”
Reuters, Insurance Journal, and other media outlets reported on the lawsuit.
Kansas City Star Reports on Firm Client NRA
The Kansas City Star reported on Brewer, Attorneys & Counselors’ representation of the National Rifle Association (NRA) in a lawsuit against insurance broker Lockton Companies, alleging that Lockton breached its contract to administer the NRA Carry Guard insurance program for the association. The article titled “Months after getting out of NRA insurance business, headaches pile up for Lockton,” is dated May 7, 2018.
"The NRA believes that Lockton violated its fiduciary obligations – to the detriment of the organization, insurance program it was entrusted to run, and the policyholders who obtained protections by those insurance products," firm partner William A. Brewer III told the Star. "For almost 20 years, the NRA relied on Lockton as the subject-matter expert with respect to various insurance products that were offered to NRA members and other law-abiding gun owners."
Firm Client NRA Sues Insurance Broker
Brewer, Attorneys & Counselors represents the National Rifle Association (NRA) in a lawsuit against insurance broker Lockton Companies, alleging that Lockton breached its contract with the NRA in connection with the NRA Carry Guard insurance program.
The Wall Street Journal first reported on the lawsuit in an article, “National Rifle Association Sues Its Insurance Broker,” dated May 4, 2018. The lawsuit against Lockton was filed in federal court on May 4 in northern Virginia. According to press reports, Lockton was fined $7 million by New York regulators and agreed to no longer provide various insurance programs in New York.
Bloomberg News also reported on the filing and quoted the complaint: “In the face of this politically motivated coercion, Lockton should have honored its fiduciary obligations and longstanding business relationship with the NRA and taken full responsibility for any compliance related concerns…Simply put, Lockton ceased to protect the NRA and its interests.”
Bloomberg quoted firm partner William A. Brewer III on the lawsuit.
“The NRA will take appropriate steps to make sure law-abiding gun owners in New York and across the country have access to the insurance coverage they need,” Brewer told Bloomberg News. “Such actions unduly burden the free market system and impact law-abiding members of the NRA.”
Law360 Reports on Sanctions Against Transamerica
In an article dated January 10, 2018, Law360 reported that a California federal judge ordered Transamerica Life Insurance Company to pay nearly $200,000 in sanctions for obstructing the discovery process in a lawsuit brought by Brewer, Attorneys & Counselors on behalf of DCD Partners, LLC.
DCD Partners sued Transamerica in 2015 alleging that it increased life insurance premiums on a predominantly African-American church congregation in South Los Angeles. In September 2017, a jury awarded DCD Partners more than $5.6 million.
The sanctions relate to Transamerica’s conduct in responding to discovery requests in late 2016. “We appreciate the attention of the court to this matter,” William A. Brewer III told Law360. “Our clients believe this decision and monetary award validates what they have believed all along — that defendants sought to frustrate their pursuit of discovery in this important matter.”
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