FOR THE RECORD
June 1, 2020 — The NRA has received a favorable ruling in connection with its Motion for Leave to file a Second Amended Complaint in its case against New York State Department of Financial Services (“DFS”), New York Governor Andrew Cuomo, and former DFS Superintendent Maria T. Vullo (“Vullo”).
In a June 1, 2020, order, U.S. Magistrate Judge Christian F. Hummel granted the NRA’s request to replead its selective enforcement claim.
The ruling is in response to the NRA’s December 20, 2019, filing, in which the NRA claims to have acquired compelling evidence from Lloyd’s America, Inc. (“LAI”) that Vullo and DFS “leveraged DFS’s considerable power… to inflict targeted harm on ‘gun programs’ – irrespective of whether those programs violated the law.”
According to the Second Amended Complaint, intent on inflicting damage on the NRA, “Vullo met with senior executives of Lloyd’s [of London] and LAI, and presented Defendants’ views on gun control and their desire to leverage their powers to combat the availability of firearms, including specifically by weakening the NRA.”
“We are pleased that the court granted the NRA’s motion to replead its selective enforcement claim,” says William A. Brewer III, partner at Brewer, Attorneys & Counselors and counsel to the NRA. “The NRA believes that the evidence will show that it was intentionally treated more harshly than other regulated entities – singled out to weaken gun-rights advocacy in the State of New York.”
In the NRA’s original complaint, filed on May 11, 2018, in the United States District Court for the Northern District of New York, the NRA 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.
On May 9, 2019, the Court granted Defendant’s request to dismiss certain selective-enforcement claims without prejudice to re-pleading. According to the filing, the Court explained that although the NRA had adequately alleged unequal treatment, it must explicitly allege that Defendants “were aware of such violations by the comparators yet consciously declined” to treat those violators as harshly as the NRA.
According to the December 20 filing, “In ensuing months, the NRA diligently sought discovery that would allow it to robustly re-plead its claims in the manner the Court outlined. This process was not easy, particularly with regard to discovery from the Corporation of Lloyd’s, an insurance marketplace which the NRA alleges was targeted by Defendants. Although DFS is a designated agent for service of process upon Lloyd’s, DFS refused to deliver the NRA’s subpoena, and stridently opposed any discovery or depositions that would shed light on its interactions with Lloyd’s syndicates.”
However, in June 2019, the NRA reportedly received documents from Lloyd’s that revealed Vullo was targeting the NRA.
According to the Second Amended Complaint, “During her surreptitiously held meetings with Lloyd’s executives that commenced in February 2018, Vullo acknowledged the widespread regulatory issues in the excess-line marketplace. Vullo and DFS made clear that Lloyd’s could avoid liability for infractions relating to other, similarly situated insurance policies, so long as it aided DFS’s campaign against gun groups. Against the specter of this bold abuse of her position, Lloyd’s agreed that it would instruct its syndicates to cease underwriting firearm-related policies and would scale back its NRA-related business; in exchange, DFS would focus its forthcoming affinity-insurance enforcement action solely on those syndicates which served the NRA, and ignore other syndicates writing similar policies.”