Expert Testimony in NY NRA Case

I’m a little late to the party, but last week attorney Jeffrey Tenenbaum gave expert testimony about nonprofit law in the ongoing civil trial in New York against the NRA, its CEO Wayne La Pierre, and other executives. The summary by NRA Watch explains that, as an expert, Mr. Tenenbaum was not asked to evaluate particular conduct by the NRA or its executives, but to explain to the jury “what is regular and customary in the nonprofit sector.” It then goes on to summarize some of his observations of the sector, including (i) that he has “rarely seen” nonprofit organizations authorizing private jet travel for their executives, except when they need to access remote parts of the world for relief missions, (ii) that he believes that it is “very rare” for nonprofits to retroactively “ratify” conflicts of interest between the organization and individuals, and (iii) that “best practices” counsel against boards of more than 30 members because large boards make it “impossible [for individual board members] to fulfill their duties.” 

I’m all for explaining nonprofit law to juries, since it is weirdly hard for nonexperts to understand. And, obviously, I only know what I’ve read in the press about the ways that Wayne La Pierre was enriched by his decades-long leadership of the NRA (leadership that I personally believe has contributed to hundreds of needless firearm deaths in the US). But I hope the jury will not be overly influenced by whether particular actions by the NRA board and its executives are legal and/or legitimate based on how “rarely” any particular expert has seen them or whether they are considered “best practices” in the sector. Nonprofit boards should be educated about best practices in the field, of course, and should consider them when making decisions about governance structure (how many directors to have on the board, for example), policies (whether the conflict of interest policy should ever permit retroactive ratification of a potential conflict), and particular travel policies (under what circumstances private jet travel by executives could be justified). But neither New York law nor the law of any other state requires that boards adopt best practices for the field. There is no per se rule in any state (that I’m aware of) that boards never exceed 30 members, that boards may not review and approve past actions that failed to go through the conflict-of-interest process prior to occurring, or that the organization never fly its executives by private jet.

Like nonprofit boards, juries should also be educated about regular and customary practices, and it’s a good thing that the judge permitted Mr. Tenenbaum to educate this jury about them. But ultimately the jury will have to consider the specific evidence about whether the NRA and its executives violated New York law. And while it will not surprise me at all if they conclude that it did in this case, it will not be because the NRA and its executives did things that are “very rare” in the sector. It will be because they violated the public trust.

Benjamin Leff