National Review Columnist Endorses Firm’s New York Lawsuit on Behalf of NRA
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.”
Albany Times Union Columnist Writes About Firm’s Case
Albany Times Union Columnist Chris Churchill wrote a column dated August 6, 2018, titled “Cuomo targets the NRA – and free speech” that refers to a lawsuit brought by the firm on behalf of the National Rifle Association (NRA) against New York Governor Andrew Cuomo and the state Department of Financial Services (DFS) and its Superintendent, Maria T. Vullo. The suit alleges that the state violated the NRA’s First Amendment rights in connection with regulatory guidance issued to financial institutions urging them not to do business with the NRA.
Churchill writes that Cuomo’s attack on the NRA “is more harmful to the First Amendment than the Second” Amendment because Cuomo has “essentially weaponized the state’s regulatory authorities to go after a political organization with which he disagrees.” Churchill also refers to the lawsuit alleging that Cuomo “is using the power of state government to pressure banks and insurance companies to stop doing business with the gun rights group.” Additionally, Churchill quotes directly from the lawsuit’s allegation that Cuomo is running a “blacklisting campaign.” He concludes that, “What Cuomo is doing – using the power of the state to target a political enemy – is tyrannical.”
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.”
National Review Piece Expresses Support of Firm Lawsuit
A commentary written by R.J. Lehmann published in the National Review on June 4, 2018, titled “New York’s Assault on the NRA Sets a Dangerous Precedent” expresses support for a lawsuit filed by the firm. The firm is representing the National Rifle Association (NRA) in a lawsuit filed against New York Governor Andrew Cuomo and the state Department of Financial Services (DFS) and its Superintendent, Maria T. Vullo.
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. Lehmann writes that the DFS’ “behavior sets a dangerous precedent that should trouble citizens across the political spectrum.”
He adds: “Seeing regulators open this Pandora’s box should be deeply concerning to those on both the right and the left. One easily could imagine similar motivated prosecutions of financial-services firms that do business with Planned Parenthood, tobacco companies, tech firms, the solar industry, or even the political campaigns of rival parties. The precedent set by these blatantly political regulatory actions undermines not only the insurance market, but the rule of law.”
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.”
Wall Street Journal Opinion Piece Focuses on Lawsuit Filed by the Firm
The Wall Street Journal published an opinion piece on May 15 by James Freeman, assistant editor of the WSJ editorial page, in support of a lawsuit filed by the firm. The piece, “The NRA vs. Authoritarianism,” explores an alleged effort by New York Governor Andrew Cuomo and the New York State Department of Financial Services (DFS) to attack the First Amendment rights of the National Rifle Association (NRA) through “guidance” (to not do business with the NRA) provided to businesses that are regulated by DFS.
Mr. Freeman writes, “Read the lawsuit filed on Friday by the National Rifle Association against New York Gov. Andrew Cuomo, his Department of Financial Services, and its Superintendent Maria Vullo. Also check out the governor’s April 19 press release on the topic. Then imagine that the target of Mr. Cuomo’s recent assault on political speech is anyone other than the gun-rights group.”
The Freeman opinion piece continues, “…it’s wrong to use powers intended to ensure the health of financial institutions to silence those with whom the governor disagrees on public policy. The main “reputational risk” here for financial companies is that they will serve clients who are unpopular in the governor’s office. If Mr. Cuomo can then freeze the otherwise law-abiding clients out of the financial system, he can put them out of business. That’s tyranny, and if the Cuomo precedent stands against the NRA, count on it being used against other controversial speakers in the future.”
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.