This past week, the U.S. Supreme Court issued an opinion in NRA vs. Vullo.  This case involves a claim that a New York state financial regulator threatened banks and insurance companies with investigation if they did not cease ties with the NRA.  The essence of the claim is that this threat was improper and was intended to coerce these companies to stop dealing with the NRA and was done in an attempt to suppress the NRA’s constitutionally-protected speech.  In a 9-0 decision by Justice Sotomayor (which could be her last majority opinion of the term) with two concurrences, the Supreme Court reinstated this claim.

There was a second case argued that day, Murthy v. Missouri, which involves more indirect claims of coercion.  The Supreme Court did not consolidate these two cases into one opinion, and (at least so far) it did not issue a per curiam opinion directing the lower to court to reconsider Murthy in light of Vullo.  As such, particularly in light of the concurrences in Vullo, it seems that, at least, some of the justices see factual distinctions between the two cases (as they should).  Until the Supreme Court issues the decision in Murthy, it will not be clear where the Supreme Court is drawing the line between persuasion/encouragement and coercion.  As such, I will not be commenting on the rule established by this case.  Instead, I am going to focus on the procedural aspects of this case.

The key procedural feature is this case is that it arises from a motion to dismiss.  A motion to dismiss is a common practice in civil cases.  (Motions to dismiss are less common in criminal cases because many states have standard form charges.)  A civil case begins with a plaintiff filing an initial pleading.  That pleading is required to set forth enough information to demonstrate that they have a legally-recognized claim for relief.  Some jurisdictions require more detailed facts than others, but the general rule is that the plaintiff must plead enough facts to demonstrate that the defendant(s) have harmed the plaintiff in a way that allows the plaintiff to seek redress from the court.  In theory, by signing this pleading, the attorney for the plaintiff is representing to the court that the attorney believes that they can prove the allegation (either currently have the evidence supporting the claim or have a reason to believe that they will be able to obtain that evidence through the jurisdiction’s discovery process). Continue Reading...