Brewer Anti-SLAPP Expert Analysis Article Published by Law360
On January 12, 2022, Law360 published an expert analysis piece written by Brewer Partner William Brewer and Associate Will Brewer titled, “Ruling Confirms Causation is Key Under NY Anti-SLAPP Law.”
The article states, “Threats of litigation initiated for the purpose of censoring, intimidating, or punishing a person for exercising their First Amendment rights have prompted many jurisdictions to pass laws targeting strategic litigation against public participation, otherwise known as anti-SLAPP statutes.”
The article discusses how the Hon. Nancy Bannon of the New York Supreme Court recently considered and dismissed an anti-SLAPP counterclaim in a dispute between Howard M. Meyers and and LEG Q LLC (“LEG Q”) in RSR Corp. et al. v. LEG Q LLC et al., Index No. 650342/2019 (N.Y. Sup. Ct.).
The authors write, “If this ruling is any indication of how New York courts will interpret the anti-SLAPP claim in the future, counsel should take note that, at the motion to dismiss stage, an anti-SLAPP claim need not have in hand any judicial finding regarding the nature of a purportedly SLAPP lawsuit; allegations will suffice.”
The authors add, “Moreover, in light of this decision, the breadth of what constitutes a communication in connection with the ‘public interest’—reaching matters that are not purely private as between the parties—cannot be overstated.”
To read more, click here.
New York Law Journal: NRA Files Motion to Dismiss New York AG's Lawsuit for Dissolution
On September 16, 2021, The New York Law Journal and other media outlets reported that firm client the National Rifle Association of America (NRA) has filed a Motion to Dismiss the New York Attorney General's (NYAG) Amended Complaint, filed on August 16, 2021. The Motion to Dismiss claims that the NYAG seeks to dissolve the NRA in an effort to "silence the constitutionally guaranteed political speech of its 5 million members."
“Since taking office in 2019, the Attorney General has ignored evidence that dissolution is improper and that the NRA Board of Directors acted appropriately at all times,” William Brewer, counsel to the NRA, told the Journal. “The NRA will continue to confront this partisan attack—in the interest of its members and the Second Amendment freedom for which they stand.”
The NYAG's office initially filed its dissolution lawsuit in August 2020, claiming that the NRA misused funds for the personal gain of its top executives. In its Motion to Dismiss, the NRA argues that "[e]ven if the allegations against current and former executives are taken as true (as they must be, for purposes of this Motion), the NRA and its Board would be the victims of the alleged wrongdoing—not perpetrators."
The Motion to Dismiss also notes that a "federal bankruptcy court found after a review of voluminous evidence, that the NRA has undertaken a sustained effort to improve its internal compliance procedures and is in position to continue fulfilling its mission."
“The Texas federal court expressly concluded that the NRA is well-placed to continue improving governance and internal controls and to fulfill its mission, as it has since its whistleblowers came forward,” Brewer wrote. “These findings comprehensively undermine the NYAG’s contrived narrative of an organization rife with corruption that is unable to reform itself and that must, therefore, be dissolved.”
Uber Faces Trial in Lawsuit Over Sexual Assault by Driver
August 11, 2021 – The Brewer law firm announced that its high-profile lawsuit against Uber is moving forward.
U.S. District Court for the Southern District of New York Judge Lewis J. Liman overruled Uber’s motion to dismiss a 2020 lawsuit that alleges that Uber’s claims relating to rider-safety are materially deceptive. The case now moves forward.
Originally filed on September 28, 2020, the lawsuit was filed by a female passenger who alleges she was sexually assaulted during a 2018 late-night ride home from New York City. Plaintiff, identified as “Jane Doe,” alleges that Uber failed to take reasonable steps to vet the driver, who assaulted her when she drifted off to sleep. In a case that captured national headlines, plaintiff reported that she suffered physical and emotional trauma.
“Our client views this decision as an opportunity to shine a bright light on the company’s failure to protect its female passengers,” says William A. Brewer III, counsel for plaintiff. “There is no doubt that millions of female passengers rely upon Uber’s representations to provide a ‘safe ride.’ Our client experienced something hauntingly different: assault at the hands of a sexual predator.”
Plaintiff asserts that Uber makes material misrepresentations to customers regarding the safety of its services, especially for female riders. In a 42-page opinion, dated July 28, 2021, the judge writes that Uber advertises that it provides the “safest rides on the road.” The judge observes that it is reasonable for a consumer to expect that “safety” includes non-traffic-related driver behavior such as sexual assault.
“If Uber had wanted to limit its claim to the make and model, features, or maintenance of the cars, they could have said ‘connecting you to the safest cars on the road,’” writes Judge Liman. He further writes, “Plaintiff sufficiently alleges that Uber’s statements about the safety of its rides were misrepresentations that concealed safety risks. Asserting that a product in its entirety (or majority) has a quality, when in fact only a portion of that product has that quality, is materially deceptive.”
The court observes that Uber had data on the “safe/unsafe composition of its driver pool” at the time of plaintiff’s assault due to the company’s sexual assault data, yet “There is no indication from the pleadings that Uber has shared that data with customers or created a feature to flag drivers that have been reported.” As alleged in plaintiff’s lawsuit, in December 2019, Uber reported nearly 6,000 reports of sexual assaults during its rides in the United States in 2017 and 2018. Approximately 89 percent of the victims were women or female-identifying individuals.
The judge writes, “…Plaintiff has sufficiently alleged that Uber’s misrepresentations concealed a foreseeable risk covering sexual assault of a rider by a driver, which then materialized. Plaintiff has also sufficiently alleged that her reliance on Uber’s misrepresentations caused the loss she suffered – her assault.” Therefore, he concludes that Plaintiff stated a viable claim for negligent misrepresentation.
The decision concludes, “The Court will permit Plaintiff an opportunity to amend the complaint to add allegations that support Uber owed a duty to Plaintiff and its passengers as a common carrier. Plaintiff will also be permitted to amend the complaint with additional facts regarding Uber’s knowledge of Hussain’s [the driver] propensity for sexual assault.”
Plaintiff’s deadline to file an amended complaint is August 27, 2021.
El Paso Times Reports on Lawsuit Against Chrysler Brought by Texas Dealership Owner
On August 9, 2021, the El Paso Times published a front-page article reporting that Brewer client Richard C. Poe II has sued Chrysler, as he fights for control of his Texas dealerships.
The article reported that in a lawsuit filed in federal court in Michigan, Poe claims that Chrysler conspired with three of his father’s business associates and their appointed dealership manager to prevent Poe from taking control of the dealerships.
William Brewer, counsel to Poe, told the Times, “Chrysler knew Richard was the heir apparent. When Dick Poe passed away, the one with legitimate control was Richard, but Chrysler began refusing to talk to Richard and awarded the dealership (control) to the interlopers."
The Times reported that the lawsuit lists the dealerships “derivatively” as plaintiffs along with Poe.
“Because he has an ownership interest in the dealerships," Poe has the legal right to file the lawsuit on behalf of the dealerships so they can receive restitution from Chrysler, Brewer said in a statement. “Naturally, those in control are critical of his efforts to bring this action" because the lawsuit includes allegations against them, he added.
Brewer News Release - Chrysler Faces Conspiracy and Breach of Contract Claims by Texas Dealership Owner
Dallas, Texas…July 19, 2021 – Brewer, Attorneys & Counselors announced that its client Richard C. Poe II, a fourth generation retail automobile dealer from Texas, filed a federal lawsuit in Michigan against FCA US LLC, formerly known as Chrysler Group LLC (“Chrysler”), accusing the automotive company of joining a conspiracy to damage Poe and unlawfully profiting from doing so.
Poe is from El Paso, Texas, and owns an interest in the oldest Chrysler dealership in Texas through Poe Management, Inc. (“PMI”). Filed on July 19, 2021, in the U.S. District Court for the Eastern District of Michigan, the lawsuit alleges “a betrayal of that historic business relationship between the Poe family and Chrysler” in which Chrysler joined a conspiracy seeking to prevent Poe from controlling the two Chrysler automotive dealerships. Poe’s great grandfather A.B. Poe opened what is now the oldest Chrysler dealership in Texas in 1928.
PMI is the general partner of the two Limited Partnership plaintiffs that own the Poe family dealerships in El Paso: Dick Poe Motors, L.P., a Texas limited partnership that owns the Dick Poe Chrysler/Jeep dealership, and Dick Poe Dodge, L.P., a Texas limited partnership that owns the Dick Poe Dodge/Ram dealership.
The lawsuit alleges that Chrysler joined the conspiracy against Poe by disregarding his legal rights, acting to limit his access to information, allowing a change in management without following proper procedures, and benefitting from the underlying conspiracy. The suit seeks millions in damages.
“As the rightful owner of these longtime Chrysler automotive dealerships, Richard Poe II believes Chrysler’s betrayal cost him millions in damages,” says William A. Brewer III, partner at Brewer, Attorneys & Counselors and counsel to Poe. “Our client believes Chrysler helped effect an improper change of control of the dealerships, so it could benefit from the sale of lucrative ‘reinsurance’ products that were previously underwritten by companies owned by Poe.”
The lawsuit alleges that Anthony E. Bock, a certified public accountant who worked for Poe’s father Dick Poe, abused his fiduciary relationship and joined a conspiracy with the intent to remove Poe from control over the dealerships in order to enrich the corporation. The lawsuit alleges that the others involved in the conspiracy were Karen G. Castro, the former office manager for Dick Poe, Paul O. Sergent, a lawyer who represented the Poes for several years; and Gery A. Reckelbus, a dealership manager.
According to the complaint, 10 days before his death in May 2015, Dick Poe caused an illegal share issuance from PMI that resulted in Richard Poe II becoming a minority shareholder. The lawsuit alleges that within days of Dick Poe’s death, Bock and Castro were named co-independent executors of Dick Poe’s estate in a will that was prepared by Sergent. Bock and Castro subsequently appointed themselves directors of PMI. They then moved to remove Richard Poe II from control over PMI and “unlawfully obtained” Chrysler’s approval of Reckelbus as the “dealer principal” for the dealerships in question.
The lawsuit asserts that Chrysler worked with the conspirators and aided them with their tortious acts by refusing to respond to correspondence from Richard Poe II or his attorneys, refusing to meet with Richard Poe II, and refusing to send notices to Richard Poe II as required by law and by contractual agreements, among other actions.
“Chrysler repeatedly failed and refused to communicate with Richard; failed, on multiple occasions, to respond to voice mails and written communications from Richard and his attorneys; and repeatedly obfuscated its internal decision process and reasons (if any) for denying Richard his rightful place as the successor of the historic, nearly 100-year-old family business,” the complaint alleges.
The lawsuit alleges seven causes of action: a breach of implied covenant of good faith and fair dealing, breach of contract, tortious interference with dealership sales and service agreements, tortious interference with prospective business relationships, fraudulent concealment and fraud by non-disclosure, conversion, and civil conspiracy.
The lawsuit states, “Chrysler chose not to communicate with Richard and answer his questions. Instead, Chrysler cut Richard out of the loop and began engaging in other tortious conduct with the Relevant Non-Party conspirators.” The lawsuit alleges that with the change of control effected by Chrysler, the conspirators stopped purchasing vehicle protection products that were underwritten by Richard Poe II. Instead, defendants funneled those sales to Chrysler.
“Our client aims to hold Chrysler accountable for its alleged role in this scheme, and to also shine a bright light on the company’s business dealings with dealership owners across the country,” Brewer says.
New York Law Journal: Judge's Ruling Allows NRA's First Amendment Claims to Proceed
On March 15, 2021, the New York Law Journal reported that a ruling by U.S. District Judge Thomas McAvoy of the Northern District of New York allows the NRA's First Amendment claims against New York state officials to move forward with discovery.
The lawsuit argues that New York state officials violated the NRA's First Amendment rights to express its political views.
“This important decision reaffirms that all public officials, even Gov. Cuomo and Maria Vullo, the former superintendent of the New York State Department of Financial Services, are accountable under the First Amendment,” said William Brewer, counsel to the NRA. “It will allow the NRA to pursue discovery and bring important evidence to light—to expose the communications and coordinated efforts of New York officials and others to harm the NRA and impinge its Constitutional freedoms. The message is clear: the NRA will stand up to those who unlawfully interfere with its Second Amendment advocacy.”
The article reports that Judge McAvoy denied qualified immunity to former New York Department of Financial Services (DFS) superintendent Maria Vullo, noting that "a question of material fact exists" as to whether Vullo "explicitly threatened" an insurer with DFS enforcement unless it broke ties with the NRA.
The Hill Reports on NRA Countersuit Against New York Attorney General Letitia James
On February 24, 2021, The Hill reported that firm client, the National Rifle Association of America (NRA), filed a counter lawsuit against New York Attorney General Letitia James accusing her of "weaponizing" her power against the group.
Filed in the New York Supreme Court, the legal filing states, “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.”
William Brewer, counsel to the NRA, told The Hill in a statement that the group believes "the NYAG’s actions are retaliatory and reflect ‘selective use’ of regulatory oversight against the Association in violation of constitutional rights."
"The NRA will continue to confront the NYAG’s weaponization of power – to the benefit of the Association, its millions of members, and all who believe in constitutional freedom," Brewer said.
The New York Times Reports the NRA Intends to Reincorporate in Texas
On January 15, 2021, The New York Times reported that the National Rifle Association of America (NRA) plans to reincorporate in Texas and has filed for bankruptcy protection.
According to the report, the NRA is seeking to "circumvent New York's legal jurisdiction" after New York Attorney General Letitia James filed a lawsuit in August 2020 seeking to dissolve the Association.
“Under this plan, the Association wisely seeks protection from New York officials who it believes have illegally weaponized their powers against the NRA and its members,” William A. Brewer III, the NRA’s lead outside attorney, told the Times.
The article notes that NRA CEO and EVP Wayne LaPierre says the plan "represents a pathway to opportunity, growth and progress."
“Obviously, an important part of this plan is ‘dumping New York,’” LaPierre added. “The NRA is pursuing reincorporating in a state that values the contributions of the NRA, celebrates our law-abiding members, and will join us as a partner in upholding constitutional freedom. This is a transformational moment in the history of the NRA.”
Texas Governor Greg Abbott hailed the NRA news, tweeting: “Welcome to Texas – a state that safeguards the Second Amendment.”
Additional information about the NRA's plan to reincorporate in Texas can be found at www.nraforward.org.
Read more from The Times here.