Firm Filed Amicus Brief in Support of the NRA’s Petition for Certiorari 

WASHINGTON, D.C.—Boyden Gray PLLC welcomes the U.S. Supreme Court’s announcement that it has granted the National Rifle Association’s petition for certiorari in National Rifle Association v. Vullo—a case that focuses on whether the First Amendment allows the government to threaten regulated entities with adverse action if they do business with a speaker that the government views as controversial. The U.S. Court of Appeals for the Second Circuit previously dismissed the NRA’s lawsuit. 

Boyden Gray previously submitted an amicus brief in support of the NRA’s petition on behalf of financial and business law scholars Brian R. Knight, a Senior Research Fellow at the Mercatus Center at George Mason University, and George A. Mocsary, Professor of Law at the University of Wyoming College of Law. The brief discusses how financial regulators can exert outsized control over regulated firms’ decision making via nominally non-binding “guidance” letters and other informal conduct.

The brief argues: “The Court should grant the Petition because the court below erred in finding that the lack of explicit binding language or threats from the New York Department of Financial Services in its guidance letters meant that no reasonable regulated firm would consider itself bound by those letters. The reality of banking and insurance regulation is that firms frequently feel that they risk sanction if they do not comply with nominally non-binding guidance.” 

The brief further contended that, “Regulators are able to exercise a level of control over regulated firms that can make them look more like co-managers of the firm than outside regulators, including, for example: influencing what lawful products they offer or decline to offer, and deciding whether banks can open new locations or change locations, whether the bank and insurance company can do business at all, and whether to remove the firms’ directors and officers and even ban them from the industry.”

The brief was recently covered by the newsletter, Capital Account, which noted the brief “took particular issue with the ability of regulators to use ‘informal statements and guidance’ to influence firms . . . out of the public view.” 

Read the full amicus brief here.