Insurance Journal Reports on Supreme Court Hearing NRA Case
November 6, 2023 – The Insurance Journal reported today on the U.S. Supreme Court agreeing to hear the NRA’s First Amendment case against former New York Department of Financial Services Superintendent Maria Vullo.
As reported, “The NRA has claimed that former New York Department of Financial Services Superintendent Maria T. Vullo infringed its First Amendment rights when she spoke out against gun violence and issued a press release and guidance letters urging banks and insurance companies in New York to consider not doing business with gun groups including the NRA.”
The NRA was appealing a 2022 ruling by the New York-based 2nd U.S. Circuit Court of Appeals, which said Vullo's actions did not constitute unlawful conduct. The appeals court ruling "gives state officials free rein to financially blacklist their political opponents," the NRA's lawyers said in court papers.
The NRA’s lawyer, William A. Brewer, said the NRA is ready to argue its case before the Supreme Court.
“We are grateful the Supreme Court will review this First Amendment case and excited by the opportunity to argue to the Court that a government regulator cannot take adverse action against its political enemies,” said Brewer in a statement. “The ruling from the Second Circuit condones public officials having unbridled power to attack those with whom they disagree.”
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NBC, CNN, and Others Report on Supreme Court Granting Review of NRA Case
November 4, 2023 - NBC News, CNN, The New York Times, The Hill, and other media outlets reported today that the U.S. Supreme Court has agreed to hear the NRA's free speech case against Maria Vullo, the former head of the New York State Department of Financial Services.
As reported by NBC, "The Supreme Court on Friday agreed to hear the National Rifle Association's claim that a New York state official's alleged role in urging companies to end ties with the gun rights group constituted unlawful coercion."
The NRA was appealing a 2022 ruling by the New York-based 2nd U.S. Circuit Court of Appeals, which said Vullo's actions did not constitute unlawful conduct. The appeals court ruling "gives state officials free rein to financially blacklist their political opponents," the NRA's lawyers said in court papers.
As reported by The Hill, "In April 2018 — two months after the deadly mass shooting at a Parkland, Fla., high school — Maria Vullo, former superintendent of the New York State Department of Financial Services, urged banks and insurers to consider the “reputational risks” of working with the NRA, according to court filings. The gun rights group filed suit against Vullo and former New York Gov. Andrew Cuomo (D), saying the NRA had “suffered tens of millions of dollars in damages” due to the officials’ “blacklisting” of the group in violation of their First Amendment rights.
The Brewer firm has represented the NRA in this matter since 2018.
Speaking of today's developments, Brewer partner William A. Brewer III said, "We are grateful the Supreme Court will review this First Amendment case and eager to argue to the Court that government officials who take adverse action against their political enemies do so at their own risk. The ruling from the Second Circuit, which the Court will review, condones public officials having unbridled power to attack those with whom they disagree. Lawyers live for these moments: the opportunity to advocate for clients on their most important matters – on the biggest stage.”
See below to read more:
“Supreme Court takes up NRA coercion claim against former New York official,” NBC
“Supreme Court to hear NRA’s claim a New York agency coerced businesses to drop ties to gun rights group,” CNN
“Supreme Court to Hear N.R.A.’s Free Speech Case Against New York Official,” The New York Times
“Supreme Court to hear NRA free speech lawsuit against NY official,” The Hill
Brewer Firm Achieves Step Forward for NRA and Free Speech with Supreme Court Decision to Hear Case
New York, New York. November 3, 2023 – Brewer, Attorneys & Counselors announced today that the Supreme Court accepted the case National Rifle Association of America v. Maria T. Vullo for review. The decision is a landmark development in one of the most closely watched First Amendment cases in decades.
“We are grateful the Supreme Court will review this First Amendment case and eager to argue to the Court that government officials who take adverse action against their political enemies do so at their own risk,” says William A. Brewer III, counsel to the NRA. “The ruling from the Second Circuit, which the Court will review, condones public officials having unbridled power to attack those with whom they disagree. Lawyers live for these moments: the opportunity to advocate for clients on their most important matters – on the biggest stage.”
With the Supreme Court granting certiorari in NRA v. Vullo, the court will consider a critical First Amendment issue – whether the government can threaten regulated entities, like banks and insurers, with adverse action should they refuse to "drop" controversial speakers based on their speech. The Brewer firm has represented the NRA on this matter since its inception.
In a May 2018 lawsuit, the NRA alleged that Vullo, at the behest of former New York Governor Andrew Cuomo, took aim at the NRA and conspired to use the regulatory power of the New York Department of Financial Services (DFS) to “financially blacklist” the NRA – coercing banks and insurers to cut ties with the Association to suppress its pro-Second Amendment speech. The NRA argues that Vullo’s actions were meant to silence the NRA – using “guidance letters,” backroom threats, and other measures to cause financial institutions to “drop” the Association.
In the trial court, the NRA's First Amendment claims withstood multiple motions to dismiss. But in 2022, after Vullo appealed the trial court’s ruling, the Second Circuit struck down the NRA’s claims. The court ruled that in an era of “enhanced corporate social responsibility,” it was reasonable for New York's financial regulator to warn banks and insurance companies against servicing pro-gun groups based on the supposed “social backlash” against those groups’ advocacy. The court also ruled that Vullo’s guidance – written on her official letterhead and invoking her regulatory powers – was not a directive to the institutions she regulated, but rather a mere expression of her political preferences.
On February 7, 2023, the NRA petitioned the U.S. Supreme Court, seeking review of the Second Circuit decision.
The Court granted review on the following question: Does the First Amendment allow a government regulator to threaten regulated entities with adverse regulatory actions if they do business with a controversial speaker, as a consequence of (a) the government’s own hostility to the speaker’s viewpoint or (b) a perceived “general backlash” against the speaker’s advocacy?
“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,” the NRA states in its petition. The Association argues that the Second Circuit erroneously opened the door to unrestrained harassment of advocacy groups by state officials, and seeks to have it closed.
Brewer engineered a legal and public advocacy campaign that included the filing of seven amicus briefs representing 40 individuals and organizations in support of the NRA.
The amicus briefs include those from state attorney generals from Montana and 17 other states, in addition to a brief filed jointly by Texas and Indiana. Various business and legal scholars, the Foundation for Individual Rights and Expression (FIRE) and the Gun Owners of America, among others, also submitted briefs.
Unfortunately, this is not the first time state officials have leveraged their regulatory power to suppress a disfavored civil rights organization or choke off disfavored speech. The NRA's petition to the Court emphasizes a long line of First Amendment cases – from seminal decisions involving the NAACP in 1958, to the Supreme Court's storied Bantam Books decision in 1963 – that forbid such tactics.
The American Civil Liberties Union (ACLU) has voiced its support for the NRA.
In August 2018, ACLU Legal Director David Cole wrote that, “…they [New York public officials] cannot use their regulatory authority to penalize advocacy groups by threatening companies that do business with those groups. And here the state has admitted, in its own words, that it focused on the NRA and other groups not because of any illegal conduct, but because they engage in ‘gun promotion’ – in other words, because they advocate a lawful activity.” The ACLU wrote that dismissing the NRA’s case “would set a dangerous precedent for advocacy groups across the political spectrum. Public officials would have a readymade playbook for abusing their regulatory power to harm disfavored advocacy groups without triggering judicial scrutiny.”
Eugene Volokh joins Brewer in representing the NRA, along with Brewer Partner Sarah B. Rogers and firm counsel Noah Peters.
Brewer Firm Featured in Law 360 Profile
November 2, 2023 – Brewer partner William A. Brewer III was part of a “meet the attorneys” profile in Law 360. The article comments on Brewer and senior associates Will Brewer IV and Samantha Daniels, all representing client Julia Rix in her lawsuit against the Polsinelli law firm and two firm partners. The profile explores background information about the Brewer firm, its compensation structure, and work in the philanthropic arena.
With respect to the Rix matter, the article says, “Julia I. Rix sued Polsinelli in September, alleging two older, married senior partners ‘insisted on late-night rendezvous, communicated their sexual interest in her and forced unwanted physical intimacy. An international corporate attorney, she says she was fired without cause after reporting the alleged misconduct to the head of human resources.”
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Law 360: NRA Tells Justices AG's Probe Basis Needs More Inquiry
October 19, 2023 – Law 360 reported today on emerging developments in the case by the New York Attorney General against the National Rifle Association of America (NRA).
According to the reporting, Brewer counsel “Noah Peters told the Appellate Division, First Department, that a judge got it wrong when he dismissed the NRA's claim that the attorney general's political statements were the motivating force behind her civil financial fraud action accusing the NRA's leaders of funneling millions of dollars into their own pockets. The nonprofit has said James flaunted her hatred of the organization while campaigning in 2018. She won election that November.”
The June 2022 dismissal would "essentially insulate any retaliatory action undertaken by the attorney general so long as the attorney general could later point to some probable cause for her action," Peters told the four justices.
Read the article here.
National Law Journal, Others Report on Sexual Harassment Lawsuit
September 21, 2023 – The National Law Journal (NLJ) reports on a lawsuit from Brewer client Julia Rix against Polsinelli law firm. The lawsuit alleges that Rix was “sexually harassed by two senior firm shareholders and that when she reported the misconduct, Polsinelli ‘retaliated’ by terminating her employment,” according to the NLJ.
As reported, “The plaintiff, Julia Rix, claims that she was ‘repeatedly hounded’ by the two shareholders who ‘insisted on late-night rendezvous, communicated their sexual interest in her, and forced unwanted physical intimacy’ over her two years of work at the firm. She filed suit last Friday in the Superior Court of the District of Columbia, seeking $20 million.
The lawsuit was filed against Polsinelli and the shareholders, referenced in the suit as Dov Scherzer, a senior technology and privacy attorney, and Gabriel Dabiri, leader of the firm’s private credit and cross-border finance practice and the firm’s New York office managing partner.”
The NLJ article was preceded by reports in the ABA Journal, Above the Law, and Law 360.
ABA Journal Reports on Sexual Harassment Lawsuit Against Polsinelli
Sept. 19, 2023 – The American Bar Association (ABA) Journal reports on a lawsuit by Brewer client Julia Rix against Polsinelli, accusing the firm and two of its partners of sexual harassment. According to the article, “A former international corporate attorney at Polsinelli has alleged that she experienced ‘callous gaslighting’ and retaliation by the law firm when she complained about sexual harassment by two influential senior partners.”
The article continues, “In a $20 million lawsuit filed Sept. 15, plaintiff Julia I. Rix said she was ‘repeatedly hounded’ by the two male partners who wanted her to join them for after-hours drinks and hotel meetings. She was also forced ‘to endure salacious comments about her appearance’ and subjected to an unwanted kiss in ‘one sordid episode,’ the suit alleges.” As reported, Rix’s suit, filed in Washington, D.C., civil court, alleges breach of contract, violations of Title VII of the Civil Rights Act, violations of Washington, D.C., human rights law, and infliction of emotional distress.
Brewer partner William A. Brewer III said in a statement to the ABA Journal: “Like many other women in the legal industry, our client claims she was subjected to unwanted sexual harassment at the hands of senior leaders in the firm. Our client believes that Polsinelli not only failed to protect her but revictimized her by failing to properly investigate her allegations. When our client bravely stepped forward to report the abuse she endured, she claims the firm did the unimaginable: immediately terminated her employment. She filed this matter to lay bare a culture of harassment that has victimized many in the workplace and has been intentionally shielded from public view. That ends today.”
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Dallas Morning News Publishes Brewer Storefront Op-Ed on Election Timing
August 31, 2023 — The Dallas Morning News published an op-ed in the Opinion section Thursday by partner William A. Brewer III and Marie Brewer calling for the elimination of off-cycle May local elections in Texas and moving elections on-cycle to November to improve voter participation. The article reflects the Brewer Storefront’s continued dedication to enforcing and promoting the Voting Rights Act in Texas communities. The Storefront is the firm’s community-service legal affiliate.
The commentary follows:
In Texas, discriminatory voting practices that depress minority voter participation remain the norm. The Supreme Court’s recent decision in Allen vs. Milligan, upholding Section 2 of the Voting Rights Act, could spark legal challenges to our state’s local and state election systems going forward.
In our state, the Election Code mandates that general and special elections be held on one of the uniform election dates: the first Saturday in May, or the Tuesday after the first Monday in November. Although the code allows for elections to be held “on-cycle” (when state and federal elections occur), many local school board and city council elections are still held in May rather than November.
The timing of elections significantly impacts voter turnout. Experts, like political scientist Sarah F. Anzia, argue that the date of an election is the single greatest factor impacting voter turnout and composition. Other states recognize this and have adjusted their local elections accordingly. New York recently joined California, Arizona and Nevada in moving off-cycle local elections to coincide with statewide and national elections. These states point to increasing voter turnout and opportunity, specifically minority turnout, as the reason for the shift.
Fewer than 25% of Americans vote in elections for their local mayor and city council members, and turnout in off-cycle local elections averages over 30% lower than local elections held during presidential elections. In Texas, the situation is even more alarming. This past May, several major counties could not even reach 10% voter turnout.
All voting systems should aim to increase voter participation, and off-cycle elections especially warrant particular attention due to their disproportionate impact on minority voters. When off-cycle elections are moved on-cycle, minority groups increase their share of the electorate by up to 10 percentage points. Moreover, when local elections coincide with presidential elections, a larger share of voters come from families earning under $30,000 annually, while the share of voters earning more than $100,000 decreases.
When local elections are synchronized with national or statewide elections, the election date garners greater attention and accessibility across all voter groups. Conversely, off-cycle elections result in lower participation by large portions of eligible voters, and minority groups are disproportionately affected.
The past decade of social science research establishes that off-cycle elections undeniably affect voter participation and the makeup of voters who turn up at the ballot box, producing a voter pool that is not representative of the entire community.
As the courts have recognized, factors such as homeownership, education and income are strongly associated with voter turnout. Racial disparities in those factors can therefore contribute to racial disparities in political participation as well.
Although there may have been legitimate concerns in the 1800s and early 1900s that prompted off-cycle elections, such as the desire to separate local races from corrupt and partisan elections held at the federal and state level, there were also more problematic reasons aimed at discouraging voter participation from certain demographics.
Many local Texas communities, with a long history of racial discrimination, still experience disparities in wealth, education and homeownership. It is evident that under the totality of circumstances, off-cycle elections violate Section 2 of the Voting Rights Act. This was not a direct argument in Allen vs. Mulligan, but the case is instructive on many levels: It fosters the belief that voting rights should be protected and any barriers to equal opportunity should be eliminated. And with such a viable alternative of switching to on-cycle elections, there is no reason for this practice to persist where minority groups already struggle to make their voices heard.
Our institutions work best when they are welcoming and inclusive. Texas should embrace the learnings of the recent Supreme Court decision — and awaken to the many ways in which the Voting Rights Act can be used to foster political opportunity.