Nat'l Rifle Ass'n of Am. v. Cuomo (350 F. Supp. 3d 94, 2018)

THOMAS J. McAVOY, Senior United States District Judge I. INTRODUCTION

Plaintiff the National Rifle Association of America ("Plaintiff" or "the NRA") commenced this action against defendants New York Governor Andrew Cuomo, both individually and in his official capacity ("Gov. Cuomo"); Superintendent of the New York State Department of Financial Services Maria T. Vullo, both individually and in her official capacity ("Supt. Vullo"); and the New York State Department of Financial Services ("DFS") (collectively, "Defendants"). In the Amended Complaint, Plaintiff asserts several federal and New York state constitutional claims, and a New York common law tort claim. See Am. Compl., Dkt. No. 37, passim . Presently before the Court is Defendants' motion pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss the Amended Complaint for failure to state claims upon which relief can be granted. Dkt. No. 40. The Court has considered the parties' briefs, see Dkt. Nos. 40, 48, 51; the briefs of amici curiae the Texas Public Policy Foundation and the American Civil Liberties Union Foundation, see Dkt. Nos. 46, 49; and entertained oral argument from the parties related to claims asserting freedom of speech and due process violations. Oral Arg. Trans., Dkt. No. 52. For the reasons that follow, Defendants' motion is granted in part and denied in part.

II. STANDARD OF REVIEW

On a Fed. R. Civ. P. 12(b)(6) motion, the Court must accept "all factual allegations in the complaint as true, and draw[ ] all reasonable inferences in the plaintiff's favor." Holmes v. Grubman , 568 F.3d 329, 335 (2d Cir. 2009) (internal quotation marks omitted). This tenet does not apply to legal conclusions. Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Similarly, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements ... are not entitled to the assumption of truth." Id. ; see also Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (stating that a court is "not bound to accept as true a legal conclusion couched as a factual allegation").

In considering a Rule 12(b)(6) motion, the Court "may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint." DiFolco v. MSNBC Cable L.L.C. , 622 F.3d 104, 111 (2d Cir. 2010). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ). A claim will only have "facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of 'entitlement to relief.' " Id. (quoting Twombly , 550 U.S. at 557, 127 S.Ct. 1955 ). "Determining whether a complaint states a plausible claim for relief [is] ... a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679, 129 S.Ct. 1937. Plausibility is "a standard lower than probability." Anderson News, L.L.C. v. Am. Media, Inc. , 680 F.3d 162, 184 (2d Cir. 2012). "[A] given set of actions may well be subject to diverging interpretations, each of which is plausible," and "[t]he choice between or among plausible inferences or scenarios is one for the factfinder." Id. A court "may not properly dismiss a complaint that states a plausible version of the events merely because the court finds that a different version is more plausible." Id. at 185. "The role of the court at this stage of the proceedings is ... merely to determine whether the plaintiff's factual allegations are sufficient to allow the case to proceed." Doe v. Columbia Univ. , 831 F.3d 46, 59 (2d Cir. 2016).

III. BACKGROUND

a. DFS Investigation into the Carry Guard Insurance Program

In October 2017, DFS initiated an investigation of the NRA's affinity Carry Guard insurance program, focusing on two insurance companies, Chubb Ltd. ("Chubb") and Lockton Affinity, LLC ("Lockton"), for underwriting and administering this program. Dkt. Nos. 37-4; 37-5. The Carry Guard program provided, among other policy coverages, (1) liability insurance to gun owners for acts of intentional wrongdoing, and (2) legal services insurance for any costs and expenses incurred in connection with a criminal proceeding resulting from acts of self-defense with a legally possessed firearm, in violation of New York Insurance Law. Dkt. Nos. 37-4; 37-5. The policies issued through the Carry Guard program were underwritten by Chubb and offered by Lockton through New York's excess line market. Dkt. Nos. 37-4 at p. 4; 37-5 at ¶ 13. As part of its investigation, DFS learned that, although it did not have an insurance producer license from DFS, the NRA engaged in marketing of, and solicitation for, the Carry Guard program. Dkt. Nos. 37-4 at pp. 4-6; 37-5 at pp. 3-5. DFS also found that Lockton and the NRA together offered at least eleven additional insurance programs (collectively "additional NRA programs") to new and existing NRA members in New York and elsewhere. Dkt. No. 37-4 at pp. 6-7. Pursuant to written agreements with Lloyd's of London ("Lloyd's") and the NRA, Lockton served as the administrator for these additional NRA programs, carrying out such functions as marketing the insurance, binding the insurance, collecting and distributing premiums, and delivering policies to insureds. Id. ¶ 16. Lloyd's and Alea London Ltd. ("Alea") served as the underwriters for these additional NRA programs, which Lockton placed through New York's excess line market. Id. ¶ 17.

Following initiation of the DFS investigation, Lockton suspended the Carry Guard program on November 17, 2017 and is no longer making Carry Guard policies available to New York residents to purchase. Id. ¶ 32. DFS's investigation revealed that Lockton and Chubb violated numerous provisions of the New York Insurance Law in connection with the Carry Guard program and the additional NRA programs. See Dkt. Nos. 37-4, ¶¶ 34-40; 375, ¶¶ 18-19 (discussed below).

The NRA alleges that throughout the investigation, DFS communicated "backchannel threats" to banks and insurers with ties to the NRA that they would face regulatory action if they failed to terminate their relationships with the NRA. Am. Compl. ¶¶ 38, 45. According to the NRA, the Chairman of Lockton called the NRA on February 25, 2018 and confided that Lockton would need to "drop" the NRA entirely for fear of losing its license to operate in New York, and the next day Lockton tweeted it would discontinue providing brokerage services for all NRA-endorsed insurance programs. Id. ¶¶ 42-43. The NRA alleges that, days later, its corporate insurance carrier severed ties with it and said it would not renew coverage at any price. Id. ¶ 44. The NRA alleges that the corporate carrier severed its ties with the NRA "because it learned of Defendants' threats directed at Lockton, and feared it would be subject to similar reprisals." Id.

b. Cuomo Press Release

On April 19, 2018, Gov. Cuomo issued a press release indicating that he was directing DFS to communicate with insurance companies and financial institutions licensed or doing business in New York and urge them to review their relationships with the NRA and similar gun promotion organizations, and consider whether such relationships "harm their corporate reputations and jeopardize public safety." Dkt. No. 37-1 ("Cuomo Press Release"). Gov. Cuomo is quoted as stating:

New York may have the strongest gun laws in the country, but we must push further to ensure that gun safety is a top priority for every individual, company, and organization that does business across the state. I am directing the Department of Financial Services to urge insurers and bankers statewide to determine whether any relationship they may have with the NRA or similar organizations sends the wrong message to their clients and their communities who often look to them for guidance and support. This is not just a matter of reputation, it is a matter of public safety, and working together, we can put an end to gun violence in New York once and for all.

Id.

The press release states that "DFS is encouraging regulated entities to consider reputational risk and promote corporate responsibility in an effort to encourage strong markets and protect consumers." Id. Then, following a statement that "[a] number of businesses have ended relationships with the NRA following the Parkland, Florida school shooting in order to realign their company's values," Supt. Vullo is quoted as stating:

Corporations are demonstrating that business can lead the way and bring about the kind of positive social change needed to minimize the chance that we will witness more of these senseless tragedies. DFS urges all insurance companies and banks doing business in New York to join the companies that have already discontinued their arrangements with the NRA, and to take prompt actions to manage these risks and promote public health and safety.

Id.

c. Guidance Letters

Also on April 19, 2018, Supt. Vullo issued "Guidance[s] on Risk Management Relating to the NRA and Similar Gun Promotion Organizations" ("Guidance Letters"), which encouraged financial institutions and insurance companies to consider their relationships with the NRA. Dkt. Nos. 37-2 (Guidance Letter to all insurers doing business in New York); 37-3 (Guidance Letter to the chief executive officers of all New York state chartered or licensed financial institutions). The Guidance Letter to all insurers doing business in New York is prefaced with reference to gun violence tragedies occurring at Marjory Stoneman Douglas High School, Columbine High School, Sandy Hook, Pulse night club, and the Las Vegas music festival, and indicates that there is a social backlash against the NRA and similar organizations "that promote guns that lead to senseless violence" and that "[o]ur insurers are, and have been, vital to the communities they serve for generations and are guided by their commitment to corporate social responsibility, including public safety and health." Dkt. No. 37-2, at 1. This Guidance Letter further indicates:

Insurers' engagement in communities they serve is closely tied to the business they do with their clients and customers and its impact on such communities. Often insurers report to their stakeholders that their performance is based on both their strategic business vision as well as on a commitment to society as a whole. There is a fair amount of precedent in the business world where firms have implemented measures in areas such as the environment, caring for the sick, and civil rights in fulfilling their corporate social responsibility. The recent actions of a number of financial institutions that severed their ties with the NRA after the AR-15 style rifle killed 17 people in the school in Parkland, Florida is an example of such a precedent.

The tragic devastation caused by gun violence that we have regrettably been increasingly witnessing is a public safety and health issue that should no longer be tolerated by the public and there will undoubtedly be increasing public backlash against the NRA and like organizations.

Our insurers are key players in maintaining and improving public health and safety in the communities they serve. They are also in the business of managing risks, including their own reputational risks, by making risk management decisions on a regular basis regarding if and how they will do business with certain sectors or entities. In light of the above, and subject to compliance with applicable laws, the Department encourages its insurers to continue evaluating and managing their risks, including reputational risks, that may arise from their dealings with the NRA or similar gun promotion organizations, if any, as well as continued assessment of compliance with their own codes of social responsibility. The Department encourages regulated institutions to review any relationships they have with the NRA or similar gun promotion organizations, and to take prompt actions to managing these risks and promote public health and safety.

Id. , at 1-2. The Guidance Letter to the chief executive officers of all New York state chartered or licensed financial institutions contains nearly identical language. See Dkt. No. 37-3.

d. Gov. Cuomo's Tweet

On April 20, 2018, Gov. Cuomo publicly tweeted: "The NRA is an extremist organization. I urge companies in New York State to revisit any ties they have to the NRA and consider their reputations, and responsibility to the public." Am. Compl. ¶ 51.

e. Consent Orders

In early May 2018, DFS entered consent orders with Chubb and Lockton related to its investigation ("Consent Orders").See Dkt. Nos. 37-4; 37-5. In the Consent Orders, Lockton and Chubb admitted to various violations of the New York Insurance Law. Dkt. No. 37-4, ¶¶ 34-40; Dkt. No. 37-5, ¶¶ 18-19. Lockton agreed to, inter alia , pay a monetary fine of $7,000,000; take specific actions to remedy ongoing violations of the New York Insurance Law; not participate in the future in any Carry Guard or similar programs that violate the New York Insurance Law; and not "enter into any agreement or program with the NRA to underwrite or participate in any affinity-type insurance program involving any line of insurance to be issued or delivered in New York State or to anyone known to Lockton to be a New York State resident." Dkt. No. 37-4 at pp. 12-15. The Lockton Consent Order expressly allowed Lockton to assist the NRA in procuring insurance for the NRA's own corporate operations. Dkt. No. 37-4 at p. 14, ¶ 43.

Plaintiff asserts that "DFS and Vullo have no legal basis to restrict Lockton's involvement with insurance programs that do not violate New York's Insurance Law;

nor do they have authority to regulate insurance transactions outside of New York. Nevertheless, DFS mandated that Lockton never enter into any future agreements with the NRA for legitimate and fully Complaint insurance programs in New York." Am. Compl. ¶ 56. Plaintiff maintains that Lockton would violate the Lockton Consent Order "if it markets an ordinary property, casualty, or life insurance policy in the State of New York that was accompanied by an NRA logo or endorsement -notwithstanding that a comparable logo or endorsement referencing any other affinity or common-cause organization is permissible," and contends that "[t]his provision ... is deliberate and intended to impair the NRA's ability to negotiate insurance benefits for its members, damage the NRA's goodwill among its membership, and unconstitutionally restrict the NRA's speech on the basis of political animus." Id. ¶ 57. The NRA further maintains that several of the violations assessed in the Lockton Consent Order "concern programs commonly engaged in by numerous additional affinity associations that do not publicly advocate for Second Amendment rights" but that were "not targets of Defendants' unconstitutional conduct." Id. ¶ 57; see id. ¶ 58 (citing similar actions by Lockton related to affinity programs by organizations that do not advocate Second Amendment rights). The NRA asserts that even if Lockton's conduct identified in the Consent Order "does violate insurance law, DFS's selective enforcement of such offenses as to NRA-endorsed policies-but not as to other policies marketed by Lockton in an identical fashion-constitutes impermissible viewpoint discrimination and a denial of equal protection under the law." Id. ¶ 60

Chubb agreed to, inter alia , pay a monetary fine of $1,300,000; not participate in the future in any Carry Guard, or similar programs that violate the New York Insurance Law; and not to "enter into any agreement or program with the NRA to underwrite or participate in any affinity-type insurance program involving any line of insurance." Dkt. No. 37-5, pp. 6-7. The Chubb Consent Order expressly allowed Chubb to issue insurance policies to the NRA for the NRA's own corporate operations. Dkt. No. 37-5 at ¶ 22.

The NRA maintains that "[a]lthough DFS restricts Lockton from participating in any affinity-type insurance programs with the NRA in New York or with New York residents, Defendants' restrictions in the Chubb Consent Order contain no geographic constraint whatsoever. Instead, the Chubb Consent Order purports to limit Chubb's involvement with the NRA anywhere, and everywhere, in the world." Am. Compl. ¶ 63. Plaintiff contends that "DFS allows Chubb to continue to underwrite affinity-type insurance programs with other affinity or common-cause organizations that do not publicly advocate for Americans' Second Amendment rights, so long as Chubb undertakes 'reasonable due diligence to ensure that any entity involved ... is acting in compliance with the Insurance Law ....' The only plausible explanation for the DFS's complete exclusion of NRA-endorsed policies, even those 'in compliance with the Insurance Law,' is that Defendants seek to misuse DFS's power to deprive the NRA of insurance and financial services, on the sole ground that Defendants disapprove of the NRA's viewpoint regarding gun control." Id. ¶ 64 (quoting Dkt. No. 37-5 at ¶ 22).

f. May 2018 Press Releases

Also in May 2018, DFS issued two press releases detailing its investigation into the Carry Guard program, the violations of the New York Insurance Law, and the Consent Orders ("DFS Press Releases"). Def.

App. at A & B. In its May 2, 2018 Press Release announcing that Lockton had agreed to pay a $7 million fine, DFS states that the NRA Carry Guard insurance program unlawfully provided liability insurance to gun owners for certain acts of intentional wrongdoing and improperly provided insurance coverage for criminal defense in a crime involving a firearm. Def. App. at A. The press release also indicates that the NRA, "which does not have a license from DFS to conduct insurance business in New York, actively marketed and solicited for the Carry Guard program ...." Id. It further indicates that "DFS will not tolerate conduct by any entity, licensed or otherwise, in contravention of New York Insurance Law, especially when that conduct is such an egregious violation of public policy designed to protect all citizens," and that the Consent Order with Lockton was part of DFS's continuing efforts to "uphold and preserve the integrity of New York law." Id.

The May 7, 2018 Press Release announcing that Chubb had agreed to pay a $1.3 million fine contains language identical to that in the Stockton press release related to the illegality of the Carry Guard insurance program and the NRA's active marketing and solicitation for the Carry Guard program even though it is not licensed to conduct insurance business in New York. Def. App. at B. DFS describes the Consent Order with Chubb as "another step in addressing the unlicensed and improper activity connected with the NRA's unlawful Carry Guard program," and states that DFS will "continue its comprehensive investigation into [the] matter to ensure that the New York Insurance Law is enforced and that consumers are no longer conned into buying so-called 'self-defense' insurance coverage." Id. The press release also indicates that Chubb has agreed to refrain from, inter alia , "[e]ntering into any other agreement or arrangement, including any affinity type insurance program involving any line of insurance involving a contract of insurance involving the NRA, directly or indirectly." Id.

g. Response to Guidance Letters and Consent Orders

Shortly after the Consent Orders were made public, Lloyd's announced that it would terminate all affinity insurance programs associated with the NRA, citing the DFS investigations. Am. Compl. ¶ 65. The NRA alleges that it also encountered "serious difficulties" replacing its corporate insurance carrier, and that "nearly every" potential replacement carrier "has indicated that it fears transacting with the NRA specifically in light of DFS's actions against Lockton and Chubb." Id. ¶ 66. The NRA further alleges that following the Guidance Letters, "multiple banks" withdrew their bids in the NRA's Request for Proposal ("RFP") process "based on concerns that any involvement with the NRA ... would expose them to regulatory reprisals." Id. ¶ 67. Plaintiff contends: "Defendants' campaign is achieving its intended chilling effect on banks throughout DFS's jurisdiction. Speaking 'on the condition of anonymity,' one community banker from Upstate New York told American Banker magazine that in light of the apparent 'politically motivated' nature of the DFS guidance, '[i]t's hard to know what the rules are' or whom to do business with, because bankers must attempt to anticipate 'who is going to come into disfavor with the New York State DFS' or other regulators. Other industry sources told American Banker that, 'such regulatory guidelines are frustratingly vague, and can effectively compel institutions to cease catering to legal businesses.' " Id. ¶ 68 (quoting Neil Haggerty, Gun issue is a lose-lose for banks (whatever their stance) , AMERICAN BANKER (Apr. 26, 2018). The NRA asserts that it suffered tens of millions of dollars in damages as a result of Defendants' actions, which "includ[es], without limitation, damages due to reputational harm, increased development and marketing costs for any potential new NRA-endorsed insurance," id. ¶ 69, ¶ 111 (same), and "lost royalty amounts owed to the NRA." Id. ¶ 80. The NRA further asserts that without access to essential banking and insurance services, "it will be unable to exist as a not-for-profit or pursue its advocacy mission." Id. ¶ 70.

IV. DISCUSSION

1. Freedom of Speech

Count One alleges that "Defendants' actions-including but not limited to the issuance of the April 2018 [Guidance] Letters and the accompanying backroom exhortations, the imposition of the Consent Orders upon Chubb and Lockton, and the issuance of the Cuomo Press Release-established a 'system of informal censorship' designed to suppress the NRA's speech." Am. Compl. ¶ 75 (quoting Bantam Books, Inc. v. Sullivan , 372 U.S. 58, 71, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963) ). Plaintiff asserts that Defendants took these actions "with the intent to obstruct, chill, deter, and retaliate against the NRA's core political speech." Id. ¶ 76. Plaintiff contends that these actions "constitute a concerted ef fort to deprive the NRA of its freedom of speech by threatening with government prosecution services critical to the survival of the NRA and its ability to disseminate its message," and amount to "an 'implied threat[ ] to employ coercive state power' against entities doing business with the NRA." Id. ¶ 77 (quoting Okwedy v. Molinari , 333 F.3d 339, 342 (2d Cir. 2003) ). Plaintiff maintains that Defendants' actions have caused "financial institutions doing business with the NRA to end their business relationships, or explore such action, due to fear of monetary sanctions or expensive public investigations." id. ¶ 78, and, in turn, "resulted in significant damages to the NRA, including but not limited to damages due to reputational harm, increased development and marketing costs for any potential new NRA-endorsed insurance programs, and lost royalty amounts owed to the NRA." Id. ¶ 80.

Count Two alleges that these same actions by Defendants "were in response to and substantially caused by the NRA's political speech regarding the right to keep and bear arms. Defendants' actions were for the purpose of suppressing the NRA's pro-Second Amendment viewpoint. Defendants undertook such unlawful conduct with the intent to obstruct, chill, deter, and retaliate against the NRA's core political speech." Id. ¶ 86. Like with Count One, Plaintiff alleges that Defendants' actions have "caused financial institutions doing business with the NRA to end their business relationships, or explore such action, due to fear of monetary sanctions or expensive public investigations," id. ¶ 87, and caused the same damages to the NRA as alleged in Count One. Id. ¶ 90.

Because the alleged "censorship campaign" challenged in Count One, and the alleged illegal retaliation asserted in Count Two, are based upon the same conduct, caused the same response from regulated entities doing business with the NRA, and resulted in the same damages, and because the lion's share of the parties' First Amendment freedom-of-speech arguments are addressed to both causes of action, see e.g. Def. Mem. L. pp. 17-30; Pl. Mem. L. pp. 6-21; Pl. Mem. L. p. 9 ("Taken together, Defendants' threatened and actual regulatory reprisals constitute a cohesive censorship-and-retaliation campaign."), the Court addresses these counts together.

The First Amendment guards against government action "targeted at specific subject matter," a form of speech suppression known as content based discrimination. Reed v. Town of Gilbert, Ariz. , --- U.S. ----, 135 S.Ct. 2218, 2230, 192 L.Ed.2d 236 (2015) ; see Rosenberger v. Rector & Visitors of Univ. of Virginia , 515 U.S. 819, 829-30, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) (Government action aimed at the suppression of "particular views ... on a subject," and which discriminates based on viewpoint, is "presumptively unconstitutional."). The Guidance Letters and the Cuomo Press Release indisputably are directed at the NRA and similar groups based on their "gun promotion" advocacy. However controversial it may be, "gun promotion" advocacy is core political speech entitled to constitutional protection. The Guidance Letters and Cuomo Press Release's comments directed to this protected speech provides a sufficient basis to invoke the First Amendment on these claims.

Defendants argue that the Guidance Letters and Cuomo Press Release are merely government advocacy protected under the government-speech doctrine. The government-speech doctrine provides that the government does not need to be viewpoint-neutral when it chooses to express its own viewpoint on a topic of public interest. Matal v. Tam , --- U.S. ----, 137 S.Ct. 1744, 1758, 198 L.Ed.2d 366 (2017). But while "the government-speech doctrine is important-indeed, essential-it is a doctrine that is susceptible to dangerous misuse." Matal , 137 S.Ct. at 1758. If read to allow not only government advocacy, but also government action, it could be used to "silence or muffle the expression of disfavored viewpoints." Id. For this reason, courts "must exercise great caution" in applying this doctrine. Id.

The Guidance Letters and Cuomo Press Release, read in isolation, clearly fit into the government-speech doctrine as they address matters of public importance on which New York State has a significant interest. See Centro De La Comunidad Hispana De Locust Valley v. Town of Oyster Bay , 868 F.3d 104, 115 (2d Cir. 2017) (public safety is a significant governmental interest); British Int'l Ins. Co. v. Seguros La Republica, S.A. , 212 F.3d 138, 143 (2d Cir. 2000) ("New York shares with its citizens a significant interest in ensuring that businesses in the heavily regulated insurance industry have sufficient funds within the state where they conduct business to fulfill each individual insurance claim."); see also Def. Mem. L., at 31 ("[T]he Guidance Letters were issued to advance the State's interest in ensuring that insurers and financial institutions doing business in New York consider whether business relationships with the NRA, and other similar groups, may jeopardize their corporate reputations and public safety.... Management of corporate reputations and risks to New York State businesses, and promotion of public safety and corporate responsibility in an effort to encourage strong markets and protect consumers are certainly significant government interests."0; Oral Arg. Trans. at 33 ("[The NRA] agree[s] that risks that affect the soundness of financial institutions are the type that DFS is properly charged with regulating, and reputation risks can even do that in some situations.") Yet Plaintiff does not cite the Guidance Letters and Cuomo Press Release in isolation, but rather contends that these documents, when read in the context in which they were issued, amount to "threats that deliberately invoked DFS's 'risk management' authority to warn of adverse action if institutions failed to support Defendants' efforts to stifle the NRA's speech and to retaliate against the NRA based on its viewpoint." Am. Compl. ¶ 48. For the reasons that follow, the Court finds that Plaintiff has stated plausible First Amendment freedom of speech claims.

" 'First Amendment rights may be violated by the chilling effect of governmental action that falls short of a direct prohibition against speech.' " Zieper v. Metzinger , 474 F.3d 60, 65 (2d Cir. 2007) (quoting Aebisher v. Ryan , 622 F.2d 651, 655 (2d Cir.1980) ); see also Dorsett v. Cty. of Nassau , 732 F.3d 157, 160 (2d Cir. 2013) ("To plead a First Amendment retaliation claim a plaintiff must show: (1) he has a right protected by the First Amendment; (2) the defendant's actions were motivated or substantially caused by his exercise of that right; and (3) the defendant's actions caused him some injury.") ). As applicable to the allegations in Counts One and Two, "the First Amendment prohibits government officials from encouraging the suppression of speech in a manner which 'can reasonably be interpreted as intimating that some form of punishment or adverse regulatory action will follow the failure to accede to the official's request.' " Zieper , 474 F.3d at 65-66 (quoting Hammerhead Enters., Inc. v. Brezenoff , 707 F.2d 33, 39 (2d Cir.1983) ). In determining whether government statements impede upon First Amendment rights, "what matters is the 'distinction between attempts to convince and attempts to coerce.' " Id. , at 66 (quoting Okwedy v. Molinari , 333 F.3d 339, 344 (2d Cir. 2003) (per curiam ).

The NRA's First Amendment freedom-of-speech claims turn on the allegations that Defendants issued threats to financial institutions and insurers "that DFS ... will exercise its extensive regulatory power against those entities that fail to sever ties with the NRA." Am. Compl. at p. 2. The First Amendment "require[s] courts to draw fine lines between permissible expressions of personal opinion [by public officials] and implied threats to employ coercive state power to stifle protected speech." Hammerhead , 707 F.2d at 39. On the one hand, public officials are free to promote their views about public welfare, including by using their bully pulpits to "cajole[ ] and exhort" others to repudiate positions or groups the officials view as pernicious. Gravel v. United States , 408 U.S. 606, 625, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972) ; see X-Men Sec., Inc. v. Pataki , 196 F.3d 56, 70 (2d Cir. 1999) ("[W]e have noted that where a public official, without engaging in any threat, coercion, or intimidation, 'exhort[ed]' private entities not to distribute a board game whose ideas the official viewed as pernicious, the official's speech did not violate any constitutional right of the game's authors.") (quoting Hammerhead , 707 F.2d at 39 & n.6 ). On the other hand, "oral or written statements made by public officials' could give rise to a valid First Amendment claim where comments of a government official can reasonably be interpreted as intimating that some form of punishment or adverse regulatory action will follow the failure to accede to the official's request." Okwedy , 333 F.3d at 342 (internal quotation marks, brackets, and citation omitted). Thus, the critical question here is whether Defendants' statements, including the Guidance Letters and Cuomo Press Release, threatened adverse action against banks and insurers that did not disassociate with the NRA.

When a question exists whether government speech contains a threat of future enforcement action, the First Amendment requires the Court to "look through forms to the substance." Bantam Books, 372 U.S. at 67, 83 S.Ct. 631. "While the precise language" of the Cuomo Press Release and Guidance Letters "is certainly important," the Second Circuit has "never held that it is the only relevant factor in determining whether a public official has crossed the line 'between attempts to convince and attempts to coerce.' " Zieper , 474 F.3d at 66 (quoting Okwedy , 333 F.3d at 344 ). Rather, the First Amendment requires the Court to consider all the circumstances, including "the entirety of the defendants' [alleged] words and actions," to determine "whether they could reasonably be interpreted as an implied threat." Id. In making this determination, the Court examines a number of factors, including: (1) the Defendants' regulatory or other decisionmaking authority over the targeted entities, see Okwedy , 333 F.3d at 343 ("[T]he existence of regulatory or other direct decisionmaking authority is certainly relevant to the question of whether a government official's comments were unconstitutionally threatening or coercive...."); (2) whether the government actors actually exercised regulatory authority over targeted entities, see Bantam Books, 372 U.S. at 68-69, 83 S.Ct. 631 (the fact that the defendant's notices were "invariably followed up by police visitations" as one factor that was relevant in determining that the notices "serve[d] as instruments of regulation"); Rattner v. Netburn , 930 F.2d 204, 210 (2d Cir. 1991) (suggesting that "unannounced visits by police personnel" might be relevant in determining whether the defendants' actions could be reasonably viewed as an implicit threat), (3) whether the language of the allegedly threatening statements could reasonably be perceived as a threat; Zieper , 474 F.3d at 66 (citing Rattner , 930 F.2d at 210 (noting that "a threat was perceived and its impact was demonstrable") ); Backpage.com, LLC v. Dart , 807 F.3d 229, 233-35 (7th Cir. 2015) ; and (4) whether any of the targeted entities reacted in a manner evincing the perception of an implicit threat. See Bantam Books, 372 U.S. at 68, 83 S.Ct. 631 ("The Commission's notices, phrased virtually as orders, reasonably understood to be such by the distributor, invariably followed up by police visitations, in fact stopped the circulation of the listed publications ex proprio vigore ."); Rattner , 930 F.2d at 205-10 (holding that a village trustee's letter to the village's chamber of commerce expressing concern about the plaintiff's political advertisement in the chamber's newsletter and containing a list of businesses at which the trustee shopped, which the chamber's directors viewed as threatening boycott or other retaliatory action by the Village, could "reasonably be viewed as an implicit threat," largely because "a threat was perceived and its impact was demonstrable").

When Defendants' statements and alleged conduct is examined in its totality, there are sufficient allegations to state plausible freedom-of-speech claims.

Supt. Vullo and DFS clearly have regulatory authority over the targeted entities. Supt. Vullo is charged by the New York Financial Services Law with taking all actions that she "believes necessary to ... ensure the continued solvency, safety, soundness and prudent conduct of the providers of financial products and services" in the State of New York to "encourage high standards of honesty, transparency, fair business practices and public responsibility." N.Y. Fin. Serv. L. § 201(b)(2), (5). "Reputational risk - the risk that negative publicity regarding an institution's business practices will lead to a loss of revenue or litigation - is just one of the threats to a bank or insurer's safety and soundness on which the Superintendent has previously issued guidance." Def. Reply Mem. L., at 7 (citation omitted). While it is within Supt. Vullo's province to issue the Guidance Letters, she also has the authority to initiate investigations and civil enforcement actions against regulated entities, as well as the power to refer matters to the attorney general for criminal enforcement. N.Y. Fin. Serv. L., Art. 3, § 301(b), (c)(4). The authority to institute enforcement proceedings is one factor supporting a plausible contention that the Guidance Letters are part of an attempt to convey implied threats of coercive action against regulated entities doing business with the NRA.

Further, the government actor need not have direct power to take adverse action over a targeted entity for comments to constitute a threat, provided the government actor has the power to direct or encourage others to take such action. See Bantam Books, 372 U.S. at 66-68, 83 S.Ct. 631 (observing that, although the Rhode Island Commission to Encourage Morality in Youth lacked the "power to apply formal legal sanctions," it had the authority to initiate investigations and recommend prosecutions, thereby imbuing the Commission's "advisory notices" with extra weight, since "[p]eople do not lightly disregard public officers' thinly veiled threats to institute criminal proceedings against them if they do not come around"); Okwedy , 333 F.3d at 344 ("Even though Molinari lacked direct regulatory control over billboards, [PNE Media, LLC ("PNE"), a company that produces and displays billboards,] could reasonably have feared that Molinari would use whatever authority he does have, as Borough President, to interfere with the 'substantial economic benefits' PNE derived from its billboards in Staten Island."). Based on Gov. Cuomo's press release wherein he indicates he is directing DFS to issue the Guidance Letters, it is a reasonable inference that he has the power to direct DFS take other official action, including the commencement of enforcement investigations against regulated institutions. Thus, there is a reasonable basis to conclude that he has the power to effectuate regulatory action against entities doing business with the NRA.

DFS actually exercised regulatory authority over Chubb and Lockton, two regulated entities that fall within the same scope of DFS's authority as the entities addressed in the Guidance Letters and Cuomo Press Release. But this fact, by itself, does not help Plaintiff's claims because Chubb and Lockton admitted violations of New York insurance laws. There are also no allegations that DFS exercised regulatory authority over entities other than Chubb and Lockton. Nevertheless, the Amended Complaint asserts that, during the course of the DFS investigations into Chubb and Lockton, "DFS communicated to banks and insurers ... that they would face regulatory action if they failed to terminate their relationships with the NRA, ... indicating that any business relationship whatsoever with the NRA would invite adverse action." Am. Compl. ¶ 38. This is a powerful factual allegation linking the recommendations in the Guidance Letters and Cuomo Press Release that regulated entities consider (and possibly end) their associations with the NRA, and the enforcement actions carried out by DFS against Chubb and Lockton. At this stage of the litigation, the Court must accept this factual allegation as true. Further, the NRA notes that the Chubb and Lockton Consent Orders, which imposed several million dollars in monetary penalties and permanently prohibited those entities from participating in any NRA-endorsed insurance program in New York State, were announced just two weeks after the Cuomo Press Release and Guidance Letters were issued. Id. ¶ 54. Viewing the allegations in the light most favorable to the NRA, and drawing reasonable inferences in its favor, the temporal proximity between the Cuomo Press Release, the Guidance Letters, and the Consent Orders plausibly suggests that the timing was intended to reinforce the message that insurers and financial institutions that do not sever ties with the NRA will be subject to retaliatory action by the state. See Wrobel v. Cnty. of Erie , 692 F.3d 22, 32 (2d Cir. 2012) ("A causal relationship can be demonstrated either indirectly by means of circumstantial evidence, including that the protected speech was followed by adverse treatment, or by direct evidence of animus."); see also Catanzaro v. City of New York , 486 Fed. Appx. 899, 902 (2d Cir.2012) ("Where a plaintiff has not alleged a specific connection between protected speech and an adverse action, 'causality can be shown through a close temporal proximity between the employer's awareness of protected conduct and the adverse action.' ")(quoting Nagle v. Marron , 663 F.3d 100, 110 (2d Cir. 2011) ); Housing Works, Inc. v. City of New York, 72 F.Supp.2d 402, 424 (S.D.N.Y.1999) (concluding that the proximity in time between the plaintiff's protected speech and the defendants' conduct constituted indirect evidence of an improper motive). The backroom exhortations combined with the timing of the publically announced Consent Orders provides strong support for Plaintiff's claims.

The Court must also assess whether the language of the Cuomo Press Release and the Guidance Letters could reasonably be perceived as a threat. In the Cuomo Press Release, insurance companies and financial institutions are "urged" to "consider reputational risk that may arise from their dealings with the NRA or similar gun promotion organizations," "take prompt actions to manag[e] these risks," and "join the companies that have already discontinued their arrangements with the NRA." The Guidance Letters contain similar language, "encourag[ing] regulated institutions to review any relationships they have with the NRA or similar gun promotion organizations, and to take prompt actions to managing these risks and promote public health and safety." While neither the Guidance Letters nor the Cuomo Press Release specifically directs or even requests that insurance companies and financial institutions sever ties with the NRA, a plausible inference exists that a veiled threat is being conveyed. Viewed in the light most favorable to the NRA, and given DFS's mandate-" effective state regulation of the insurance industry" and the "elimination of fraud, criminal abuse and unethical conduct by, and with respect to, banking, insurance and other financial services institutions," N.Y. Fin. Servs. Law § 102(e), (k) -, the Cuomo Press Release and the Guidance Letters, when read objectively and in the context of DFS's regulatory enforcement actions against Chubb and Lockton and the backroom exhortations, could reasonably be interpreted as threats of retaliatory enforcement against regulated institutions that do not sever ties with the NRA. See Okwedy , 333 F.3d at 344 ("Because the district court was considering a motion to dismiss, it should have viewed the language of Molinari's letter in the light most favorable to plaintiffs."); id. at 342 (holding that a jury could find that the defendant's letter contained an implicit threat of retaliation where it invoked the defendant's position as the Borough President of Staten Island, pointed out that the targeted company "owns a number of billboards on Staten Island and derives economic substantial benefits from them," and directed the company to contact the defendant's legal counsel and chair of his anti-bias task force); Rattner , 930 F.2d at 206-10 (holding, on motion for summary judgment, that there were genuine issues of material fact about whether Defendant's letter-stating that Plaintiff's publication "raises significant questions and concerns about the objectivity and trust which we are looking for from our business friends"-was "threatening or coercive").

Finally, targeted entities' reactions to the perception of an implicit threat is a factor the Court should consider. Defendants argue that no individual company was singled out or coerced as a result of Defendants' public statements, Def. Mem., L., at 22, but such specific targeting is not required in order to make out a First Amendment claim in these circumstances. See Hammerhead , 707 F.2d at 39 (noting that "not a single store was influenced by [defendant's allegedly threatening] correspondence"). The Amended Complaint includes numerous allegations regarding the perception of a threat by New York insurers and financial institutions, and its impact on the NRA's ability to procure insurance and banking services from target entities. See Am. Compl. ¶¶ 42, 44, 65-68. These allegations sufficiently support the contention that New York insurers and financial institutions took specific actions in response to their perceptions of a threat.

The allegations in the Amended Complaint are sufficient to create a plausible inference that the Guidance Letters and Cuomo Press Release, when read together and in the context of the alleged backroom exhortations and the public announcements of the Consent Orders, constituted implicit threats of adverse action against financial institutions and insurers that did not disassociate from the NRA.

Contrary to Defendants' argument, actual chilled speech is not necessary to make out a plausible First Amendment claim. "Chilled speech is not the sine qua non of a First Amendment claim. A plaintiff has standing if he can show either that his speech has been adversely affected by the government retaliation or that he has suffered some other concrete harm. Various non-speech harms are sufficient to give a plaintiff standing." Dorsett v. Cty. of Nassau , 732 F.3d 157, 160 (2d Cir. 2013). The NRA's allegations of significant interference with its business relationships, see Am. Compl. ¶¶ 65-67, 69-70, and the damages caused by Defendants' actions, id. ¶¶ 80, 87, are sufficient to establish a First Amendment injury. See, e.g., Bantam Books , 372 U.S. at 64 n.6, 83 S.Ct. 631 ("Appellants' standing has not been, nor could it be, successfully questioned. The appellants have in fact suffered a palpable injury as a result of the acts alleged to violate federal law, and at the same time their injury has been a legal injury. The finding that the Commission's notices impaired sales of the listed publications, which include two books published by appellants, establishes that appellants suffered injury.")(citation omitted); see also Burwell v. Hobby Lobby Stores, Inc. , 573 U.S. 682, 134 S.Ct. 2751, 2770, 189 L.Ed.2d 675 (2014) ("[A] law that operates so as to make...beliefs more expensive in the context of business activities imposes a burden on [First Amendment Rights]."); Zherka v. Amicone , 634 F.3d 642, 646 (2d Cir. 2011) ("Allegations of loss of business or some other tangible injury as a result of a defendant's [retaliatory] statements would suffice to establish concrete harm."); Davis v. Vill. Park II Realty Co. , 578 F.2d 461, 463 (2d Cir. 1978) (reversing dismissal of a complaint by president of a tenants' association who claimed that the owner of a federally funded housing project had threatened her with eviction in retaliation for her advocacy of tenants' rights).

The fact that the alleged impact of Defendants' statements and actions was commercial in nature does not remove the case from the First Amendment's protections, or necessarily require a lesser level of scrutiny. See Sorrell v. IMS Health, Inc. , 564 U.S. 552, 566, 131 S.Ct. 2653, 180 L.Ed.2d 544 (2011) (Commercial activity is "no exception" to the principle that the First Amendment "requires heightened scrutiny whenever the government creates a regulation of speech because of disagreement with the message it conveys.")(internal quotation marks omitted). While commercial speech may generally be subject to intermediate scrutiny, "viewpoint discrimination is scrutinized closely whether or not it occurs in the commercial speech context." Wandering Dago, Inc. v. Destito , 879 F.3d 20, 39 (2d Cir. 2018). The Amended Complaint contains sufficient allegations plausibly supporting the conclusion that Defendants' actions were taken in an effort to suppress the NRA's gun promotion advocacy. See Am. Compl. at ¶¶ 21, 76, 78, 86. Moreover, the NRA's allegations that Defendants' enforcement actions against Lockton and Chubb impeded the NRA's ability to enter contracts for lawful affinity insurance plans, but did not take similar action against other membership organizations that did not engage in gun promotion advocacy, see Am. Compl. at ¶¶ 36-37, provides a plausible basis to conclude that Defendants sought to impose a content-based restriction on NRA-affiliated businesses based on viewpoint animus that serves no substantial government interest.

In the end, the allegations of direct and implied threats to insurers and financial institutions because of these entities' links with the NRA, and the allegations of resulting harm to the NRA's operations, are sufficient to make out plausible First Amendment freedom-of-speech claims. While the NRA may not be able to establish the factual predicates for these claims, it has presented sufficient allegations to allow them to go forward. Accordingly, those portions of Defendants' motion directed to Counts One and Two are denied.

b. Freedom of Association

Count Three alleges a violation of the NRA's rights to freedom of association as protected by the First and Fourteenth Amendments to the United States Constitution, and by Article 1, Section 8 of the New York Constitution. Am. Compl. ¶¶ 93-106. In this regard, the NRA alleges that "Defendants' actions-including but not limited to the issuance of the April 2018 [Guidance] Letters and the accompanying backroom exhortations, the imposition of the Consent Orders upon Chubb and Lockton, and the issuance of the Cuomo Press Release-are, in effect, limiting the NRA's ability to continue to operate as an ongoing entity and engage in political advocacy." Id. ¶ 96. Plaintiff contends that "financial institutions previously doing business with the NRA ... are ending their business relationships, or exploring such action, due to fear of monetary sanctions or expensive public investigations." Id. , ¶ 97. In this regard, the NRA contends that it "has spoken to numerous carriers in an effort to obtain replacement corporate insurance coverage; nearly every carrier has indicated that it fears transacting with the NRA specifically in light of DFS's actions against Lockton and Chubb. Furthermore, multiple banks withdrew their bids following the issuance of the April 2018 Letters, based on concerns that any involvement with the NRA-even providing the organization with bank-depository services-would expose them to regulatory reprisals." Id. The NRA maintains that without appropriate insurance and banking services, it will be unable to continue "its existence as a not-for-profit organization and fulfill its advocacy objectives." Id. ¶ 98; see id. ¶ 99. Plaintiff asserts that "Defendants' actions were taken to specifically target the NRA's and its members' right to associate and express their political beliefs in order to banish pro-Second Amendment views from New York. Believing they could not directly bar the NRA from operating in New York, Defendants instead engaged in a censorship scheme to directly, substantially, and significantly infringe the NRA's and its members' right to associate by depriving it of critical insurance and banking services." Id. ¶ 100.

The First Amendment protects association "for the purpose of engaging in ... activities protected by the First Amendment." Roberts v. U.S. Jaycees , 468 U.S. 609, 617-18, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984). The NRA associates with its members for the purpose of engaging in political advocacy advancing Second Amendment rights, including through letter-writing campaigns, peaceable public gatherings, and other grassroots "lobbying" activities. See Am. Compl. at ¶ 95. Association for purposes of Second Amendment advocacy is an activity protected by the First Amendment. See Smith v. Arkansas State Highway Employees , 441 U.S. 463, 464, 99 S.Ct. 1826, 60 L.Ed.2d 360 (1979) (The First Amendment "protects the right of associations to engage in advocacy on behalf of their members."); NAACP v. Alabama , 357 U.S. 449, 462, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958) (the First Amendment protects the right "to engage in association for the advancement of beliefs and ideas"); Tabbaa v. Chertoff , 509 F.3d 89, 101 (2d Cir. 2007) ("Plaintiffs unquestionably had a protected right to express themselves through association at the [Reviving the Islamic Spirit] Conference."); Brady v. Colchester , 863 F.2d 205, 217 (2d Cir. 1988) ("[t]he Supreme Court has recognized a freedom to associate with others to pursue goals independently protected by the first amendment-such as political advocacy...,"0(internal quotation marks and citation omitted).

The "first question [the Court] must answer" in determining whether Plaintiff states viable freedom-of-association claims "is whether and to what extent [D]efendants' actions burdened" Plaintiff's right to associate for the purpose of engaging in Second Amendment advocacy. Tabbaa , 509 F.3d at 101. "To be cognizable, the interference with [Plaintiff's] associational rights must be 'direct and substantial' or 'significant.' " Fighting Finest, Inc. v. Bratton , 95 F.3d 224, 228 (2d Cir. 1996) (quoting Lyng v. Int'l Union , 485 U.S. 360, 366, 367 & n. 5, 108 S.Ct. 1184, 99 L.Ed.2d 380 (1988) ). "Mere incidental burdens on the rig ht to associate do not violate the First Amendment." Tabbaa , 509 F.3d at 101.

Plaintiff's allegations, accepted as true for purposes of this motion, indicate that "nearly" every insurance carrier, and "multiple" banks have expressed a fear of transacting with the NRA or withdrawn their bids for services to the NRA because of Defendants' actions as discussed above. While the Court accepts, at it must, that many insurance carriers and banks have refused to offer services to the NRA, and that insurance coverage and banking services are necessary for the NRA to continue its advocacy activities, Plaintiff has not asserted that it is unable to obtain any insurance coverage or any banking services so it can continue its operations. Moreover, even accepting the allegations that multiple insurers and banking institutions have expressed an unwillingness to offer services to the NRA due to Defendants' actions, there are no allegations plausibly supporting the conclusion that Defendants' actions directly and substantially, or significantly, interfered with the NRA's associational rights. Rather, the Amended Complaint alleges that the Guidance Letters, Consent Orders, press releases, and "backchannel threats" affect insurers and banking institutions' willingness to offer services to the NRA which, in turn, creates a "risk" that the NRA might not be able to offer associational activities such as (1) media coverage through NRATV, (2) circulation of publications and magazines, (3) meetings, rallies, conventions and assemblies, (4) educational programs, Am. Compl. ¶ 98, and (5) letter-writing campaigns. Id. at ¶ 95. But the Amended Complaint fails to sufficiently allege that Defendants' actions directly and significantly, or substantially, hampered the NRA's right to associate with its members. While the NRA's ability to obtain insurance coverage and banking services from entities regulated in New York state may be impaired by Defendants' actions, this imposes only an incidental burden on the NRA's right to engage in expressive association. Cf. Lyng , 485 U.S. at 367, 108 S.Ct. 1184 (concluding that a burden is merely incidental when it is "exceedingly unlikely" that a defendant's actions would prevent someone from exercising his or her associational rights) (internal quotation marks omitted).

The cases of Healy v. James , 408 U.S. 169, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972), and Tabbaa, supra , cited by Plaintiff in support of its freedom of association claims, are clearly distinguishable. In Healy , the Supreme Court held that a college's denial of official recognition to a student organization constituted a substantial burden on association. 408 U.S. at 183, 92 S.Ct. 2338. Here, Defendants took no action like the college in Healy that directly impacted the NRA's right to meet with its members for expressive association. In Tabbaa, the Second Circuit held that the "plaintiffs suffered a significant penalty, or disability, solely by virtue of associating at the [Reviving the Islamic Spirit] Conference" because they were detained for lengthy periods of time, interrogated, fingerprinted, and photographed when others, who had not attended the conference, did not have to endure these measures. Tabbaa , 509 F.3d at 102. Here, there are no allegations that Defendants imposed a penalty upon NRA members who participated in NRA advocacy events. Similarly, there are no plausible allegations that the Defendants imposed a penalty upon the NRA for associating with its members for Second Amendment advocacy purposes. While the NRA argues that the Consent Orders were the result of speech-motivated regulatory decisions, the Consent Orders indicate that Chubb and Stockton agreed that their conduct related to NRA insurance programs violated New York insurance law. The fact that these insurance companies agreed that their conduct violated New York law does not support a plausible claim that the Defendants imposed a penalty upon the NRA for associating with its members. See e.g. Arcara v. Cloud Books, Inc. , 478 U.S. 697, 707, 106 S.Ct. 3172, 92 L.Ed.2d 568 (1986) (The "First Amendment is not implicated by the enforcement of laws directed at unlawful conduct having nothing to do with...expressive activity."). Further, the Lockton Consent Order provides that "Lockton may assist the NRA in procuring insurance for the NRA's own corporate operations," Dkt. No. 37-4 at ¶ 43, and the Chubb Consent Order provides that "the NRA may itself purchase insurance from Chubb for the sole purpose of obtaining insurance for the NRA's own corporate operations." Dkt. No. 37-5 at ¶ 22. These two clauses undermine the NRA's claim that DFS intended to coerce insurers and banks into not doing business with the NRA and thereby penalized the NRA.

The allegations in the Amended Complaint are, at most, that the Defendants' actions "make it more difficult" for the NRA "to exercise [its] freedom of association" through NRA activities, but "did not prevent [the NRA] ... from associating [with its members] nor burden in any significant manner [its] ability to do so." Fighting Finest , 95 F.3d at 228. This fails to state plausible freedom-of-association claims. Accordingly, Defendants' motion directed to Count Three is granted. If Plaintiff seeks leave to amend this claim, it should be done through a formal Rule 15 motion.

d. Equal Protection

Count Four alleges that Defendants engaged in selective enforcement of the New York insurance laws in violation of the NRA's rights to equal protection of law as secured by the Fourteenth Amendment to the United States Constitution, and by Article 1, Section 11 of the New York Constitution. Am. Compl. ¶¶ 108-113. In this regard, the NRA alleges that Defendants "knowingly and willfully violated the NRA's equal protection rights by seeking to selectively enforce certain provisions of the Insurance Law against Lockton's affinity-insurance programs for the NRA. Meanwhile, other affinity-insurance programs that were identically (or at least similarly) marketed by Lockton, but not endorsed by 'gun promotion' organizations, have not been targeted by DFS's investigation." Id. at ¶ 107. Plaintiff further contends that "Defendants' selective enforcement of the Insurance Law against the NRA and its business partners is based on the NRA's political views and speech relating to the Second Amendment." Id. ¶ 110. Plaintiff maintains that "Defendants' actions have resulted in significant damages to the NRA, inclu