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Notes -
The 2nd Circuit has ruled in NRA v. Vullo:
Most of the charges against the state and its direct actors had already been dismissed earlier, either under 11th Amendment or qualified immunity prongs. But this dismisses the last of them.
To summarize, the National Rifle Association alleged that the New York Department of Financial Services held backroom meetings where DFS told an insurance provider that, while aware of widespread violations of a specific law both among many insurers and for that specific provider, if the provider dropped gun-related clients, DFS would not bring claims against non-gun-related contracts. And Lloyd's did, demonstrably, drop the NRA, something the NRA argued in a still-partially-redacted-pleading in this case. And the NRA ended up needing to go with self-insurance, entirely coincidentally to any insurance company offering policies in the state falling under the NYDFS regulatory umbrella.
But the written settlement agreement provided to a court said that Lloyd's could still contract with the NRA. And DFS did issue a few (much-smaller) penalties against one or two other providers, after a lower court did not dismiss some of the claims in this case. So it's ok!
I should mention, to start, that this did get an amici brief from the ACLU. You could write this up as 'even the ACLU thought it was an infringement of rights', or you could write it up as principles overcoming politics (if, coincidentally, in a doomed case), or even just paranoid caution lest that whole "First they came for..." poem ring true. But not something that everyone did, and even many closer to the NRA's perspectives covered the case with less sincere analysis.
This is still in the motion to dismiss phase, two years in. At this phase, the courts are supposed to treat even remotely plausible factual claims in a pleading in the light most favorable to the plaintiffs, and it's hard to read this decision as having actually done so. It's possible, if unlikely, for the NRA to appeal the case. But along with the difficulty of gaining evidence of some of the alleged specific claims (it's almost certain that the redacted parts of some affidavits include specific whistleblowers in DFS or a regulated insurance agency or agencies, and very likely that there were few enough people in those meetings to count without taking off one's shoes), this highlights both the cost and the low likelihood of success for not just this case, but this class of cases. This is not the sort of lawsuit your average LLC could afford to bring, and there are some adjacent attack surfaces that would beggar even many larger businesses in months if not weeks. The NRA could afford (insufficient) self-insurance and kept some of its normal practices going, but the writing is on the wall, and no small number of real-world programs and ranges have already begun the process of trying to build away or around its likely failure.
For another, because this is in the motion to dismiss phase, this isn't particularly useful as a truth-finding tool. It is entirely possible that the NRA's lawyer completely made up the alleged behavior. It's possible that the Department of Financial Services was actually having daily or hourly meetings threatening legal action unless regulated agents acted against disliked organizations. Indeed, a lot of the legal action on the docket revolved around staying early discovery. Which is necessary to prevent the use of the courts for harassment when bringing meritless charges... but means that the real answer is that the courts do not care.
They aren't meant to be mechanisms to resolve political disputes or find out the actual facts at controversy; at best, they settle a very small and specific subset of disputes, and the scope and limits of that process can be surprising.
I was thinking about this recently. Prosecutorial discretion needs to be curbed. It should not be legal for the government to use police power to exchange immunity for a criminal on the condition that the criminal harms a noncriminal. How do the courts not see the problem in allowing the government to subcontract with criminals to make the legally immune hitmen?
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Basically 2nd said it's OK for the government to condition prosecution on "correct" partisan-based behavior - i.e. "either you close accounts of all Republicans or we are going to audit your bank until the angels sound their trumpets and hound your mercilessly for every tiny paperwork violation like you're Al Capone". I can't really find words beyond "welcome to the Banana Republic of America" to react to this.
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An attempt to understand one small corner of this story: am I to believe that the current situation is that DFS knows of many instances of Lloyd's breaking the law, but is not going to go after them?
This does not seem like a stable equilibrium. Are all of these violations only of rules specific to New York, so that there's no information other regulators/prosecutors might be interested in? And somehow, Lloyd's doesn't suffer reputational damage (in the form of increased scrutiny by other regulators) as a result of it being public knowledge that they're conspiring with DFS to get off the hook for no good reason?
Another thing I'm not following: what does NRA need insurance for? Sure, every organization needs insurance for one reason or another, but this story is written as if NRA's need for insurance is particularly large. What's that insurance covering?
The NRA alleges that NYDFS was aware of many other circumstances where Lloyd's and other covered insurance providers were in violation of the law, but verbally offered to Lloyd's employees that, if Lloyd's closed all activities with the NRA, to resolve any non-NRA conflicts via Lloyd's providing a remediation report without a fine or consent decree.
Some of these interpretations are probably specific to recent periods in New York, such as exactly where and when a non-insurer can advertise an insurer's products. Others are broader, and the NRA's CarryGuard program faced similar intervention in Washington State contemporaneously with the New York investigation. And there is an awkward question about how much these rules were predictable interpretations of existing regulation.
I don't know if it does -- and, if it does, I'm skeptical reputational harm is a valid legal tort against state actors acting in their official role -- but it doesn't really matter. Lloyd's did not and pretty clearly will not bring a civil case against New York; another part of the legal charlie foxtrot in this case involved the NRA having to jump through a ton of hoops to serve a subpeona to Lloyd's while trying to get further evidence. They're the ones who would be harmed under this theory, and the courts generally don't accept third-party legal complaints.
While both general liability insurance and Directors and Officers insurance are a good plan for any sufficiently large organization, the controversial nature of the NRA makes it a far greater requirement. The organization and its leadership are routinely targeted with both valid and
spuriousnovel civil litigation, with a tremendous variance in cost of defense, on top of the normal risks. This both impacts the business's bottom line -- even an ultimately dismissed case where the plaintiff is required to pay legal fees and isn't judgement proof is a major cost, and that's not the most common result -- and also results in a feedback loop where now the only people willing to be on the NRA's board are those who don't care about potential personal liability.The NRA offer(ed) multiple major in-person conventions and meetings, and these are major parts of its role as an advocacy group. Nearly all sites require some level of insurance coverage by specific types and grades of insurer just to rent space. Because of the NRA's unusual size, controversial nature, and purpose, these requirements were likely more severe than any other comparable organization.
The NRA offers a variety of insurance programs (underwritten or otherwise provided by regulated insurances) as part of its financial model. While most of its revenue comes from membership fees, training services, etc, these were not a trivial source. And while the NRA has not been completely frozen out from all insurance providers, note that the NRA did not allege that DFS wanted Lloyd's to stop coverage in New York. Not every insurance provider has been cowed from handling NRA-related services, but this almost certainly has impacted both the cost of services and the available profit margin for them.
Some of the insurance products, such as range insurance, are major parts of its outreach, services, and recruitment tools. The NRA was one of the few big programs that can consistently offer good and affordable range insurance, and that's one reason a large number of gun clubs required or encouraged membership, for example. While the changes here are not the sole reason a lot of ranges are starting to look at different options and providers, or devolve to self-insurance -- again, not every insurance provider has been cowed from handling gun-related services, and the NRA has been decidedly less popular for other reasons -- but this seriously undermines the long-term viability of the organization.
DFS does not solely regulate insurance providers, but also banks and merchant services. These are kinda important in a much more short-term framework.
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