News — Brewer

Front Page News: New York Law Journal Reports on NRA Appeal

March 17, 2023 – The New York Law Journal reports that Brewer client the National Rifle Association of America (NRA) has appealed  the New York Supreme Court's June 2022 order that dismissed the NRA's First Amendment and Equal Protection Clause counterclaims – without discovery – against New York Attorney General Letitia James.

The front-page article, “NRA Claims NY Seeks to ‘Crush’ Gun Rights Group in Battle with AG’s Office,” chronicles the NRA’s 58-page appellate brief, including the NRA’s claim that the lower court decision dismissing the counterclaims “practically draws a roadmap for how officials can abuse state power to destroy the ability for non-profits to advocate for positions disfavored by the government.”

According to the article, “Under the lower court’s decision, so long as the targeted entity has committed any technical infraction whatsoever, it would have no redress for the blatant violation of its First Amendment rights,” the brief from Brewer, Attorneys & Counselors partner William A. Brewer III states

See the article here.

FOX News Reports on NRA Appeal

March 15, 2023 – FOX News reported today on Brewer client, the National Rifle Association of America (NRA), and its appeal of a June 2022 legal decision dismissing the Association’s First Amendment and Equal Protection Clause counterclaims against New York Attorney General Letitia James.

The article, “NRA digs in for legal fight against woke prosecutor over alleged ‘roadmap’ of abuse,” observes that the NYAG filed a dissolution lawsuit against the NRA in August 2020, following her campaign declarations in 2018 that she would investigate the NRA if she was elected. She had described the NRA as a “criminal enterprise” and “terrorist organization.” The NYAG assumed public office and, exactly as she promised her supporters, launched a campaign against the NRA in April 2019, and, approximately a year later, filed a well-publicized lawsuit against the NRA – billed by her as the suit to dissolve the NRA. The NRA filed counterclaims in July 2021, and supplemented its filing in April 2022.

The NRA alleged that James’s campaign to shut down the NRA was motivated by a desire to silence its pro-Second Amendment advocacy. On June 10, 2022, the New York Supreme Court dismissed the counterclaims without allowing discovery. Citing cases arising in the criminal context, the Court contended that the NRA was required to show that the NYAG had no probable cause to investigate it to state a claim under the First Amendment.

In its appeal, filed in the Appellate Division, First Department, the NRA states that the "lower court’s opinion practically draws a roadmap for how officials can abuse state power to destroy the ability for non-profits to advocate for positions disfavored by the government. An official can run for office with the stated aim of taking adverse action to a silence a disfavored speaker."

Brewer partner William A. Brewer III tells FOX, “The NRA believes the motivation for her [the NYAG]…campaign against the Association is clear: she desired to silence the organization and its Second Amendment advocacy.”

Click here to read the article.

New York Law Journal Reports on NRA Cert Petition to SCOTUS

February 8, 2023 — The New York Law Journal reports that Brewer client the National Rifle Association of America (NRA) is asking the U.S. Supreme Court to consider its suit against former New York Department of Financial Services Superintendent Maria Vullo, "whom the gun-rights advocacy group accused of threatening insurers because they did business with the NRA."

According to the NRA, Vullo and former New York Governor Andrew Cuomo engineered a 2018 “blacklisting campaign” against the NRA. The Association filed a lawsuit in May 2018, alleging the campaign was retaliation for the NRA’s viewpoint of speech. The State of New York filed a Motion to Dismiss, and, on November 6, 2018, U.S. District Judge Thomas J. McAvoy issued a highly-anticipated decision, which upheld the NRA’s First Amendment freedom-of-speech claims — the crux of its complaint. That decision was overturned by the United States Court of Appeals for the Second Circuit on September 22, 2022.

The New York Law Journal notes that the petition for a writ of certiorari was signed by NRA's counsel, William Brewer III, and First Amendment scholar and law professor Eugene Volokh. Together, they argue that the Second Circuit’s opinion “gives state officials free rein to financially blacklist their political opponents—from gun-rights groups, to abortion-rights groups, to environmentalist groups, and beyond.”

“It also permits selective investigations and penalties targeting business arrangements with disfavored speakers, even where the regulator premises its hostility explicitly on an entity’s political speech and treats leniently, or exempts, identical transactions with customers who lack controversial views,” they wrote.

Brewer told the Journal that reversal of the Second Circuit’s ruling is “important not only to the NRA but all advocacy groups that rely upon the protections of the First Amendment.”

NRA Files Cert Petition with U.S. Supreme Court; Seeks Review of Case Against Former New York Governmental Official Tied to “Blacklisting Campaign”

February 8, 2023 – Brewer, Attorneys & Counselors client, the National Rifle Association of America (NRA), filed a petition on February 7, 2023, for a writ of certiorari with the U.S. Supreme Court, seeking review of a controversial judgment issued by the United States Court of Appeals for the Second Circuit in NRA v. Maria T. Vullo. The matter in question is one of the nation’s most high-profile First Amendment cases. First Amendment scholar Eugene Volokh joins as counsel on the brief.

As the former Superintendent of the New York State Department of Financial Services (DFS), Vullo, at the behest of former New York Governor Andrew Cuomo, allegedly wielded DFS's regulatory power to financially blacklist the NRA – coercing banks and insurers to cut ties with the Association, in order to suppress its Second Amendment speech. The lawsuit's allegations are explosive and include backroom threats by Vullo against regulated firms, accompanied by offers of leniency on unrelated infractions if regulated entities agreed to blacklist the NRA.  

The NRA's First Amendment claims withstood multiple motions to dismiss during the course of 2018 – 2020. But in 2022, after Vullo appealed the trial court's ruling on qualified immunity, the Second Circuit struck down the NRA's claims – ruling, among other things, that in an era of “enhanced corporate social responsibility,” it was reasonable for New York's financial regulator to warn banks against servicing gun groups.  

“The NRA is pursuing judicial review of a record that is equally disturbing and unconstitutional: New York state officials weaponizing the powers of their office against a political adversary,” says William A. Brewer III, counsel to the NRA. “This case is important not only to the NRA but all advocacy groups that rely upon the protections of the First Amendment.”

Along with Volokh, Brewer is joined on the brief by firm partner Sarah B. Rogers and counsel Noah B. Peters.

Read the press release.

Read the petition. 

Law360: NY Appellate Court Reverses Times Square Hotel Ruling

December 6, 2022 – Law360 reports that Brewer client M&C New York LLC, owner of the former Novotel Times Square Hotel, has prevailed in its appeal of a lower court ruling that dismissed a breach of contract lawsuit against the hotel's former manager, hotel operator Accor Management US Inc. 

According to the report, "The appellate court favored hotel owner M&C New York (Times Square) LLC's argument that it had complied with the provisions of its hotel management agreement with operator Accor Management US Inc. when it issued an April 2019 notice of default due to the manager's alleged negligent accounting, misuse of hotel funds, unsupported payments and fee overcharges. The appeals court also rejected Accor's claims that it was protected by a safe harbor provision in section 14.3 of the hotel management agreement." 

Counsel for M&C New York, William A. Brewer III, told Law360 the decision paves the way for a trial, which is expected to shed light on Accor's management of the former Novotel Times Square. 

“This case underscores the principles that govern the relationship between owners and management companies,” says Brewer. “Our client believes Accor sought protections to which it was not entitled – and failed in its obligations to manage the property in owner’s best interest. This case is a cautionary tale for owners throughout the Accor system, and we are eager to proceed to trial.”

Read the report (subscription required). 

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.