NY v NRA

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NRA Still Wants A Jury Trial In Manhattan

July 31, 2023 by 2 Comments

Judge Joel Cohen ordered all the defendants and the New York AG’s Office to give a response on the matter of how the trial should be held. That is, should it be a jury trial or not? The responses from both sides were received this past Friday (July 28th).

Surprisingly, the NRA is sticking to their demands for a jury trial. I am in agreement with NRA In Danger that this is insane. A jury trial for the NRA in Manhattan is the equivalent of a jury trial for Donald Trump in DC meaning a totally unbiased jury pool is virtually impossible to find.

According to the response embedded below, the NRA is asking that a jury trial be held to determine the facts on all the causes of action against the NRA. These would include improper administration of assets, waste, and fiduciary failures. They are claiming they are entitled to this by right. Then, after the jury has determined the facts, the NRA says they would be amenable to having Judge Cohen determine equitable relief. In other words, they want a bifurcated trial with the jury portion coming first.

This is also the position of the attorneys for Wayne LaPierre, Woody Phillips, and John Frazer.

The Attorney General’s Office agrees in part and disagrees in part with the call for a jury trial. Whereas the defendants are saying all the facts should be determined by a jury trial, the Attorney General agrees that should be only for causes of action 2 to 5 and 10 to 14. They contend on the first cause of action as well as causes of action 6 through 9 that they are not triable by a jury under New York law. They present a chart breaking this down found here in the appendix starting on page 9. So in one sense, all involved agree that a bifurcated trial – part by judge and part by jury – is called for. The difference is that the defendants want a jury trial to determine the facts in all the causes of action.

You will notice that the discussion above omits Josh Powell. That is because the attorneys for Powell filed a motion on July 13th to withdraw as counsel. Akin Gump Strauss Hauer & Feld LLP has represented Powell since the beginning of the proceedings. Powell in a separate filing gave his consent to this. A few days later Akin Gump filed motions to keep parts of the reasons for withdrawal under seal or non-public. Judge Cohen has temporarily put these under seal until a hearing can be held on August 7th.

On July 25th, the AG’s office filed a response to Akin Gump Strauss Hauer & Feld LLP’s withdrawal as counsel for Josh Powell. They took no position on Akin Gump’s withdrawal, insisted that Powell get a new attorney sooner than later, and that Judge Cohen should deny the motion to keep keep the reasons for withdrawal under seal. They assert that Akin Gump has not met it burden for sealing their submissions.

Reading closely, the reason Akin Gump and Powell are going separate ways is financial. The AG’s response said, “Powell’s Defense Counsel moved to be relieved, citing Powell’s inability to pay its legal fees.” Now that is interesting.

They also say that Powell should have only 14 days to retain a new attorney given how close the case is to going to trial. If he cannot, they say Powell should act as his own attorney or pro se in legal terms.

So to conclude, the NRA et all insist on a jury trial on all facts, the AG says only on some parts, and Josh Powell seems to have run out of money to pay his legal bills.

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NRA Wants Jury Trial In NYC

January 9, 2023 by 1 Comment

Initially, it was only the New York Office of Attorney General that was asking for a jury trial in the lawsuit against the NRA and the four defendants. However, that was a demand for jury trial on only some issues. Even though it was only on some issues, finding a jury in Manhattan that would sympathetic to a case against the NRA shouldn’t be too hard.

Today, the blog NRA In Danger reports that in response the NRA along with Wayne LaPierre and John Frazer have demanded a jury trial on all issues.

From the Demand for Trial by Jury filed by Svetlana Eisenberg on behalf of the NRA:

Therefore, the National Rifle Association of America (the “NRA”) hereby demands a trial by jury of all issues triable of right by a jury, including, but not limited to, issues of fact related to each element of (i) Plaintiff’s claims; and (ii) the NRA’s defenses. The NRA asserts this demand pursuant to, inter alia, (i) Section 2 of Article I of the Constitution of the State of New York; (ii) Section 18 of Article VI of the Constitution of the State of New York; (iii) Section 112(b)(1) of Not-For-Profit Corporation Law; and (iv) article 41 of Civil Practice Law and Rules (the “CPLR”) (including Sections 4101 and 4102 of the CPLR).

WTF?!

I have to agree 100% with NRA In Danger when they wrote:

This is insanity, we can find no other word for it, and our attorney friends agree. The judge seems actually to be impartial and concerned with doing the right thing. Why would NRA and LaPierre demand to be tried instead by a Manhattan jury? If we searched, could we find a worse group to try NRA?

I can think of no rationale reason for the NRA to demand a jury trial. The only person who benefits is Bill Brewer as he runs up the billings. Did the NRA Board of Directors even have any input into this? Or is it still the Special Litigation Committee making the decisions?

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Special Master’s Report From NY v. NRA

May 14, 2022 by 2 Comments

One of the latest documents posted in the New York Attorney General’s case agains the NRA has an interesting tidbit in it. It is a report from the Special Master to the court. While most of the report deals with the length of the deposition scheduled for Wayne LaPierre, it notes that clarification is sought on whether Paul Payne is being represented by Brewer, Attorneys and Counselors.

Where have we heard that name before?

Oh, yes. It was in the bonus episode of Season 2 of Gangster Capitalism podcast. That episode described how Payne worked as a special assistant to Wayne LaPierre and how he was responsible for organizing the campaign to elect the Wayne-selected candidate for 76th Director. Monies from NRA dues were used to pay the travel and lodging expenses of “volunteers” to campaign for the candidate. I personally saw them in action at the NRA Annual Meeting in Dallas where they pushed Herb Lankford and in Tucson where they pushed Jim Wallace. Both succeeded against reform candidates.

You can listen to the episode in the embedded player. Note that both Dezarae Payne, his ex-wife, and Michael Schwartz are still active Second Amendment activists.

I fully expect these folks to be out in force in Houston campaigning for Isaac Demerest against Frank Tait. It was obvious in Tucson that, even after being exposed by the Gangster Capitalism podcast, Wayne and his cabal have no shame when it comes to their openly corrupt actions of using member’s dues to stack the board.

The complete Special Master’s report to the court is below. See item (iii) where Payne’s name is mentioned.

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Motion To Intervene Denied

September 9, 2021 by 2 Comments

As I said earlier today, there was the hearing on the Motion to Intervene this afternoon.

After hearing the arguments for and against, Judge Joel Cohen denied the Motion.

The basis for his decision as I can understand it is that having only two member representing the interests of the members was not enough. He kept referring to a 5% of the membership rule as the minimum needed to intervene. Even though the attorneys for the intervenors said they were representing a class of members, the judge disagreed. He kept coming back to the argument that if you let one group intervene then you have to let others intervene.

While it was assumed a sitting director would be joining the Motion to Intervene today, Judge Cohen said he could only rule on the motion in front of him. He did not rule out a revised Motion to Intervene with a sitting director as one of the intervenors.

It is a hell of thing when you have a group on one side that wants to do away with the NRA and a group on the other side that wants to keep looting it with no one allowed in the middle representing the millions of dues paying members.

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Motion To Intervene Hearing Today

September 9, 2021 by

The hearing on the Motion to Intervene on behalf of the members of the NRA in the dissolution lawsuit will be held this afternoon. Judge Joel Cohen issued a notice on Tuesday that the hearing will proceed as scheduled. It is set for 2:30pm in Manhattan.

In his letter to the court on announcing a sitting director of the NRA would be joining the Motion to Intervene, attorney Taylor Bartlett gave the court the option of postponing it as he expected both the NRA and the NY Attorney General’s Office would ask for time. Bartlett did note that they were ready to go.

We will know the name of the director or directors who will be joining the suit later today. Given a sitting director has the absolute right to intervene and thus has standing, it will be interesting to hear the arguments against allowing it.

If I can find an audio link to the hearing, I will post it.

Stay tuned!

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NRA Dissolution Lawsuit Promises To Get More Interesting

September 3, 2021 by 2 Comments

In June, Frank Tait and Mario Aguirre filed a motion seeking to intervene on behalf of NRA members in the NRA dissolution case brought by New York Attorney General Letitia James. Their contention, rightly in my opinion, was that no one was adequately representing the approximately five million NRA members.

As you might expect, both the Attorney General and the NRA have objected to this. A hearing is currently scheduled for September 9th to hear arguments relating to this motion.

Last year, I had some discussions with others who were interested in seeing an intervenor motion filed in the dissolution lawsuit. One of the major issues brought up was that there was some doubt that under New York that members themselves would have standing. It was thought that only a sitting director would have standing to intervene in the dissolution lawsuit.

We now know, thanks to a letter filed this afternoon with the court by Taylor Bartlett, attorney for Tait and Aguirre, that this issue will now be off the table. There will be one, if not two, sitting directors joining the motion to intervene on behalf of the members of the NRA.

William Brewer himself, the world’s most brilliant attorney according to some of the lesser minds on the NRA board, wasted no time filing a letter to the judge stating that he found the request for leave by the intervenors to file an amended motion “improper”. He then indicates in so many words that the NRA is prepared to fight this motion.

I have been told confidentially the name of one of the potential directors who will be joining in the motion to intervene. As such, I respect that trust and will hold off on announcing the name until it is announced in the court proceedings.

I would also point you to a post this afternoon by David Codrea concerning this letter to the court by Taylor Barlett for his take on it.

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Clues To NRA’s Legal Strategy

January 16, 2021 by 2 Comments

Attorney Sarah Rogers of Brewer, Attorneys and Counselors, filed a “Notice of Suggestion” before the US Judicial Panel on Multidistrict Litigation yesterday. It was in regard to the NRA and Sea Girt LLC’s filing for Chapter 11 bankruptcy in the US Bankruptcy Court for the Northern District of Texas.

From the Notice of Suggestion:

Section 362(a) (Automatic Stay) of the Bankruptcy Code automatically prohibits, inter alia, the following:
* the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title;
* the enforcement, against the debtor or against property of the estate, of a judgment obtained before the commencement of the case under this title;
* any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate.

I think that tells you exactly what the legal strategy formulated by William Brewer III is for the NRA. It is to use bankruptcy as a means to stop or put a hold on the cases involving Ackerman McQueen, David Dell’Aquila, and the State of New York. That is, at least in Federal court.

It gets more interesting according to a book put out by the American Bankruptcy Institute entitled, Bankruptcy Issues for State Trial Court Judges Third Edition.

Federal law allows the removal of civil actions from state court to federal district court if jurisdiction exists under 28 U.S.C. §1334 (the federal jurisdictional provision that creates a bankruptcy case). The petition for
removal must be filed in the district court to which the matter is removed. Removal is to the federal district court for the jurisdiction in which the state court matter is pending, not to the district in which the bankruptcy case is pending. Consequently, if the bankruptcy case is in a different federal district, a motion for change of venue to that district may be filed after the matter is removed.

The book goes on to say that this applies to all courts, state and Federal. However, if you examine the case against the NRA by the Attorney General of New York Letitia James, it probably is might be stayed against the NRA but not against Wayne LaPierre, Woody Phillips, John Frazer, or Josh Powell. That is because a §362 stay applies to the property of the estate, property of the debtor, and the debtor. The individuals named by James in the dissolution lawsuit are not debtors in a bankruptcy filing.

However, there is an exception to a §362 that I’m sure the State of New York will seek to use:

The commencement or continuation of an action or proceeding by a governmental unit to enforce its police or regulatory power. Examples would be prosecution under a rubbish ordinance, an action to close a restaurant for health code violations, or litigation to determine the debtor’s liability for consumer protection violations and liquidation of the amounts owed for those violations. The exception extends to enforcement of a judgment, other than a money judgment, obtained by a governmental unit to enforce its police or regulatory power. Section 362(b)(4)

The regulatory power involving the NRA would be that of New York’s ability to regulate charities which is the basis of the dissolution suit. It will be up to the judge hearing the dissolution lawsuit to decide whether the stay resulting from the bankruptcy filings apply. I’m sure that New York will argue that it doesn’t just as the NRA’s lawyers will argue that it does.

I should remind the reader that I’m not a lawyer and that case law usually is of greater importance than the how the law is written. In other words, how a law is interpreted by the courts trumps how the legislature wrote the law.

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Letitia James Responds To NRA Move

January 15, 2021 by 2 Comments

New York Attorney General Letitia James has responded to the legal moves by the National Rifle Association to reincorporate in Texas.

NEW YORK – New York Attorney General Letitia James today released the following statement after the National Rifle Association (NRA) declared it would seek bankruptcy protections in federal court, as well as sought to reincorporate its nonprofit status in the state of Texas:

“The NRA’s claimed financial status has finally met its moral status: bankrupt. While we review this filing, we will not allow the NRA to use this or any other tactic to evade accountability and my office’s oversight.”

In August, Attorney General James filed a lawsuit against the NRA, Executive Vice-President Wayne LaPierre, and three of LaPierre’s current or former top executives for failing to manage the NRA’s funds; failing to follow numerous state and federal laws, as well as the NRA’s own bylaws and policies; and contributing to the loss of more than $64 million in just three years for the NRA. The suit was filed against the NRA as a whole, LaPierre, as well as former Treasurer and Chief Financial Officer Wilson “Woody” Phillips, former Chief of Staff and the Executive Director of General Operations Joshua Powell, and Corporate Secretary and General Counsel John Frazer.

According to a story on the bankruptcy filing by Reuters, it is thought the move will put the New York lawsuit on hold and may remove James’ power over the NRA through the reincorporation. Maybe yes, maybe no.

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Brewer Represents NRA But Not LaPierre?

September 1, 2020 by 4 Comments

All the filings for the lawsuit brought by the Attorney General of New York seeking dissolution of the NRA are online. You can see when the individual defendants were served and in what manner.

Both Josh Powell and Wilson “Woody” Phillips had their attorneys file a “stipulation of service” which also granted them time to respond. This was done two weeks ago. Interestingly, they each have hired attorneys with big name firms. Powell’s attorney is Mark MacDougall who is a partner with Akin Gump in DC and was formerly a Federal prosecutor. Likewise, Phillips’ attorney Seth Farber, a partner with Winston Strawn in New York, was also a former Federal prosecutor.

John Frazer was personally served at home in Virginia two weeks ago. The description of the person accepting the service fits that of John Frazer himself.

Here is where it gets interesting. It seems Wayne LaPierre and/or his security guards not only refused service at both the office and his home in Great Falls, Virginia, but is not being represented by Bill Brewer.

Stephen Gutowski of the Free Beacon noticed that in this filing that was done this past Saturday. He posted about it on Twitter earlier this evening. If you double-click on the embedded tweet you can see the filing. Look at paragraph 2.

Regardless of who is or will be Wayne’s attorney, I really don’t think the judge presiding over the case will look too kindly on the petulant manner in which Wayne and his henchmen treated the process server. The other three individual defendants accepted service politely or had their attorneys reach out to accept it.

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Quote Of The Day

August 9, 2020 by 4 Comments

I read a most interesting article by Anthony DeWitt in Richochet. It concerned the suit brought by NY Attorney General Letitia James to dissolve the NRA. It is entitled “Wayne’s World is Crumbling”.

DeWitt, like many of us, is pretty angry the NRA’s future has been put in jeopardy thanks to Wayne LaPierre and his cronies. As he notes, nothing has been proved yet and it is still a list of allegations. Nonetheless, he is feeling used and abused by Wayne and his crowd of grifters and has no problem with James taking them to task.

The meat of the issue which DeWitt points out is just whom is the victim.

If the smoke proves to be from a fire, and the mirrors turn out to be a true reflection of the leadership of the NRA, then I have no quarrel with her taking on LaPierre and his alleged co-conspirators who have allegedly defrauded the membership. I have no quarrel with her investigation demonstrating that the NRA Board of Directors is little more than a bunch of chained and costumed characters in an S&M bondage flick. But let’s remember, they defrauded the membership, not the state of New York, and the membership is not perpetrator, they’re the victim. What the NY AG proposes is, in fact, just shooting everyone.

DeWitt is correct. The victim here are the 5 million members of the NRA whose dues and donations have provided a very nice lifestyle for a bunch of grifters and hanger’s on.