Consumers Union of U.S., Inc. v. State

840 N.E.2d 68, 5 N.Y.3d 327, 806 N.Y.S.2d 99

• Court: New York Court of Appeals
• Decided: June 20, 2005
• Status: Published

Opinions

OPINION OF THE COURT

Read, J.

The issue in these appeals is whether plaintiffs have stated a viable cause of action to challenge the legislation authorizing the conversion of defendant Empire HealthChoice, Inc., doing business as Empire Blue Cross and Blue Shield (Empire) from a not-for-profit to a for-profit corporation, and directing that certain of Empire’s assets be used for various public health and charitable purposes. For the reasons that follow, we conclude that plaintiffs’ allegations are legally insufficient to support any cognizable cause of action.

I.

Empire’s Origins and Evolution

Empire began as the Associated Hospital Service (AHS), a membership corporation¹ formed in 1934 to provide workers with affordable hospital care. AHS was an outgrowth of “the Depression and one especially disturbing consequence of it: voluntary hospitals stood on the edge of bankruptcy because they lacked the revenues to stay in business while (the cause of their problems) millions of citizens went without hospital and other needed care because they lacked the money to pay for it” (Brown, Capture and Culture: Organizational Identity in New York Blue Cross, 16 J Health Pol, Pol’y & L 651, 653 [Winter 1991]).²

AHS’s “key organizational task” when founded was to “build[ ] a financing linkage between people who needed care and hospitals that needed revenue” (id. at 655). AHS did this by offering prepaid “hospital service plans,” which channeled revenue to the hospitals and made affordable hospital care available to workers. For a monthly fee, AHS contracted with subscribers for up to 21 days of hospital care a year. AHS “work[ed] closely with the hospitals, paying them directly instead of indemnifying patients whom the hospitals then billed. [AHS] was, and was intended to be, the hospitals’ exchequer, their financial alter ego” (id.).

Hospital service plans were not unique to New York. As they spread throughout the nation, “[a] number of state departments of insurance had ruled that hospital service contracts, even if issued by one hospital, were a form of insurance and that hospital service policies could be issued only by stock and mutual insurance companies which met the established requirements as to capital stock, reserves, and assessments” (Rorem, Enabling Legislation for Non-Profit Hospital Service Plans, 6 L & Contemp Probs 528, 529 [1939]). This issue “came to a head” in New York in 1933, when the Superintendent of Insurance “advised that such a function, although desirable, could be performed only by a stock or mutual insurance company. New York civic leaders, hospital administrators and trustees, and physicians cooperated in drafting and sponsoring an enabling act” (id. at 529-530; see L 1934, ch 595; see also Comment, Group Health Plans: Some Legal and Economic Aspects, 53 Yale LJ 162, 173-174 [1943] [discussing legislation adopting statutory controls adapted to group health plans]). The result was article 14 of the Insurance Law. In 1939, the Legislature recodified the Insurance Law and replaced article 14 with article IX-C, which addressed nonprofit medical indemnity corporations as well as hospital service corporations (L 1939, ch 882). These corporations were exempt from state and local taxes and were subject to tailored requirements. Article 43 of the present-day Insurance Law, which governs nonprofit health plans, derives from articles 14 and IX-C.

At the urging of its member hospitals, AHS became the intermediary for Medicare Part A in New York in 1965. In taking on this role, Empire became even more thoroughly enmeshed in the operation of its member hospitals by specifying accounting practices, cost definitions and cost allocations for Medicare.

In 1944, United Medical Service, Inc. (UMS), also a membership corporation, was formed to provide coverage for physician services. AHS and UMS merged in 1974 to form Blue Cross and Blue Shield of Greater New York, a Type B corporation under the Not-For-Profit Corporation Law. This entity merged with Blue Cross of Northeastern New York, Inc. in 1985 and became Empire Blue Cross and Blue Shield.

Empire initially offered only group plans, but later added individual coverage. It fixed premiums according to “community rating,” in which all subscribers in a given locality are charged the same rate regardless of health risk, and allowed “open enrollment,” accepting all applicants. For many years, commercial insurers did not routinely offer health coverage, which was not viewed as profitable, and so Empire had no competition. Further, the federal government encouraged plans like Empire by granting them tax-exempt status under section 501 (c) (4) of the Internal Revenue Code ([IRC] 26 USC) as social welfare organizations.³

Empire experienced financial difficulties almost from its very beginnings because of the high costs of open enrollment and community rating. Further, commercial insurers slowly began entering the health insurance market. By using experience rating, with premiums based on claims experience, and avoiding open enrollment, commercial insurers were able to offer lower premiums to healthier groups and individuals. While Empire also used experience rating for some products, it continued its open-enrollment and community rating policies as the “insurer of last resort.”

Because of Empire’s critical role in New York’s health care delivery system and its high costs and continuing financial troubles, the Legislature favored it over its commercial counterparts. For example, Empire was allowed to reimburse hospitals on the basis of actual costs, while commercial insurers were required to reimburse hospital charges. When the Legislature in 1983 enacted the New York Prospective Hospital Reimbursement Methodology (NYPHRM), a system for cost controls and rate-setting at hospitals, Empire was afforded an advantage over commercial insurers, which were required to pay a surcharge over and above the rate paid by Empire. Empire was exempt from “every state, county, municipal and school tax” (see Insurance Law § 4310 ft])-

In the mid-1980’s, Empire suffered a severe blow when the United States General Accounting Office issued a report concluding that the underwriting practices of Empire and other Blue Cross plans were similar to those of commercial insurers. Congress responded by revoking the Blues’ tax exemption.⁴

In the early 1990’s, Empire was beset with management problems, high administrative expenses and fraud, all causing significant financial losses. The growth of health maintenance organizations (HMOs) in the 1990’s further eroded Empire’s subscriber base as healthier groups and individuals switched to more economical managed care plans.

By 1992, Empire’s future looked bleak. Upon applying to the Superintendent for significant rate increases, Empire suggested that without them its cash reserves would be exhausted in a matter of months. In January 1993, the Legislature averted this crisis with a $100 million cash infusion (L 1993, ch l).⁵ These funds were supposed to shore up Empire until a series of laws took effect, which were crafted to make Empire more competitive by eliminating the major distinctions between it and commercial insurers. For example, the Legislature required health maintenance organizations and commercial insurers in the small group market to use community rating (L 1992, ch 501); a “risk adjustment” process was enacted, which essentially required insurers and HMOs to compensate other providers who offered coverage to higher-risk populations (id.); and the Legislature mandated that HMOs offer policies to individuals on an open-enrollment/community rated basis (L 1995, ch 504). These statutes relieved Empire of its unique role as New York’s “insurer of last resort.” Accordingly, the Legislature soon removed the favorable rate differential that Empire had enjoyed under NYPHRM (L 1996, ch 639).

Empire’s Original Restructuring Plan

Notwithstanding state subsidies and other favorable legislative action, Empire lost roughly $800 million and half its subscriber base in the 10-year period from 1986 to 1995. In light of its deteriorating prospects, Empire decided to restructure.

Under Empire’s original restructuring plan, substantially all its assets, liabilities and businesses were to be transferred to wholly owned for-profit subsidiaries in exchange for 100% of the subsidiaries’ outstanding and newly issued common stock. This transfer was to be followed by an initial public offering in which a portion of the stock would be sold to the public. Proceeds from the offering and all outstanding stock, approximating 100% of the value of the not-for-profit’s assets, would then be transferred from “old” Empire to a newly formed tax-exempt charitable foundation “dedicated to promoting the availability and accessibility of high quality healthcare and related services to the people of the State of New York.” “Old” Empire would dissolve and “new” Empire would continue to offer health insurance, but as a for-profit corporation with greater potential for becoming and remaining competitive. Empire’s Board of Directors looked at other options, including dissolving or merging with another entity, but determined that restructuring along these lines was more desirable.⁶

This proposed restructuring was subject to the Not-For-Profit Corporation Law’s provisions governing the disposition of a corporation’s assets. For example, under N-PCL 510 and 511, Type B not-for-profit corporations may sell all their assets with Supreme Court approval and on notice to the Attorney General. After dissolution,

“[a]ssets received and held by the corporation . . . shall be distributed to one or more domestic or foreign corporations or other organizations engaged in activities substantially similar to those of the dissolved corporation ... as ordered by the court to which such plan is submitted for approval under section 1002 (Authorization of plan)” (N-PCL 1005 [a] [3] [A] [emphasis added]).

Although its financial picture had brightened somewhat by the end of 1998, Empire concluded that its not-for-profit form crippled its chances to attract sufficient capital to compete effectively in New York’s health care market. Without restructuring, Empire predicted serious future financial losses, and so actively pursued its restructuring plan with the Department of Insurance.

Public hearings were held in 1999, and Empire formally submitted its proposed plan to the Superintendent later that year. In the fall of 1999, the Attorney General opined that Empire’s restructuring would require a change in Insurance Law § 4301 (j) as well as Supreme Court and regulatory approval (see Press Release, Sept. 1, 1999, Spitzer Airs Concerns on Blue Cross/Blue Shield Conversion, <http://www.oag. state.ny.us/press/1999/sep/sep01a_99.html> [last updated Jan. 24, 2003], cached at <http://www.courts.state.ny.us/reporter/ webdocs/spitzer_concerns_bluecross_conversion.htm>; see also May 1999 Mem to Attorney General, Proposed Conversion to For-Profit Status by Empire Blue Cross and Blue Shield, in Josephson, Health Care Litigation: What You Need to Know After Pegram; Fiduciary Accountability; Recent Cases and Investigations; Pending Cases, 1216 PLI/Corp 581, 711).⁷ On December 29, 1999, the Superintendent issued an opinion and decision nonetheless approving Empire’s reorganization plan.

Disagreeing with the Attorney General about the need for legislative action, the Superintendent opined that section 4301 (j) “which prohibits the conversion of a not-for-profit health service corporation into a for-profit corporation, [was] not applicable to Empire’s restructuring.” According to the Superintendent, Empire’s restructuring was governed under articles 71 and 74 of the Insurance Law, and was not a “conversion” as “Empire will exchange its assets for different assets having equal value and transfer those assets to an independent entity formed to carry out not-for-profit public purposes,” and would then dissolve.

While Empire secured the Superintendent’s approval of its restructuring plan, the Attorney General’s endorsement proved more elusive. In a press release dated January 5, 2000, the Attorney General stated that he did “not oppose in principle Empire’s wish to convert,” but was “legally bound to protect the public interest when an organization that has enjoyed millions in state subsidies seeks to change its mission to earning profits for private owners” (see Statement by Attorney General Eliot Spitzer Regarding the Proposed Empire Blue Cross/Blue Shield Conversion, <http://www.oag.state.ny.us/press/2000/jan/ jan05b_00.html> [last updated Jan. 24, 2003], cached at <http:// www.courts.state.ny.us/reporter/webdocs/spitzers_statement_ bluecross_conversion.htm> [emphasis added]). He then identified several objections to the restructuring plan approved by the Superintendent, first and foremost the legal bar of Insurance Law § 4301 (j)-⁸ I* the end, Empire elected not to pursue reorganization under the 1999 restructuring plan approved by the Superintendent.

Health Care Workforce Recruitment and Retention Act

On January 25, 2002, the Legislature enacted Chapter 1 of the Laws of 2002, the Health Care Workforce Recruitment and Retention Act (Chapter 1). Chapter l’s purposes include “allowing] [Empire] to convert to a for-profit corporation, giving Empire the ability to raise the capital needed to compete effectively in the current health care market”; providing revenue from the conversion “to help health care providers recruit and retain the staff they need”; and “increasing] and improving] health care access for children, women and the working disabled” (Senate Mem in Support of L 2002, ch 1, 2002 McKinney’s Session Laws of NY, at 1639-1640).

Chapter 1 amends Insurance Law § 4301 (j) by adding five new paragraphs, including paragraph (2) specifically addressing the Attorney General’s contention that this provision would otherwise preclude Empire’s conversion.⁹ Chapter 1 also creates a new section 7317 of the Insurance Law, which directs Empire to submit a proposed plan of conversion (Insurance Law § 7317 [a] [1]) and prohibits the Superintendent from approving this plan until after he has convened public hearings and determined that it

“[would] not adversely affect the applicant’s contractholders or members, [would] protect the interests of and [would] not negatively impact on the delivery of health care benefits and services to the people of the state of New York and results in the fair, equitable and convenient winding down of the business and affairs of the applicant” (Insurance Law § 7317 [b]).

Section 7317 (f) (i) vests Supreme Court with sole jurisdiction to consider any challenge to the Superintendent’s final determination to approve the conversion, sets a 30-day limitations period, and limits judicial review to the question of whether the Superintendent acted in an arbitrary or capricious manner with respect to reaching his determination.

Section 7317 (f) (ii) specifies that “[t]his section [7317] shall be deemed to supercede all otherwise applicable laws and legal requirements” and grants Empire’s Board immunity for participation in the conversion.¹⁰ Section 7317 (f) (ii) additionally provides that

“a transaction approved by the superintendent shall be deemed for all purposes to be a transaction that is fair and reasonable to an applicant and to promote the purposes of that applicant, and the use of proceeds as described herein shall be deemed for all purposes to be a use for a purpose that is consistent with and as near as may be to the purposes for which the applicant was originally organized and subsequently operated.”

The plan of conversion submitted by Empire pursuant to Chapter 1 was similar in many ways to the plan approved by the Superintendent in 1999. This plan accomplishes Empire’s conversion through a transfer of assets, the creation of new for-profit corporations and a holding company, and a stock sale. Chapter 1 modifies Empire’s original plan in one key respect, however. Rather than dedicating 100% of the assets freed upon conversion to a charitable foundation, Chapter 1 calls for 95% of the fair market value of the for-profit entity to be transferred to a “public asset fund” (Insurance Law § 4301 [j] [4]; § 7317 [e]). The remaining 5% is to be transferred to a “charitable organization” (Insurance Law § 4301 [j] [5]; § 7317 [k] [1]) that shall operate as a tax-exempt organization pursuant to IRC § 501 (c) (3) and whose mission is expansion of access to health care generally.¹¹

The public asset fund is to be managed by a board of directors consisting of five members, three appointed by the Governor and one each appointed by the Temporary President of the Senate and the Speaker of the Assembly (Insurance Law § 4301 Ij] [4] [B]). The net proceeds in the fund are to be transferred to the preexisting Tobacco Control and Insurance Initiatives Pool (Insurance Law § 4301 [j] [4] [O]; see also Public Health Law § 2807-v). Chapter 1 directs that the funds be used for recruiting and retaining nonsupervisory health care workers with direct patient care responsibilities (L 2002, ch 1, part A, §§ 1, 1-b, 2, 7-b); the Elderly Pharmaceutical Insurance Coverage (EPIC) program, a state-sponsored prescription plan for needy senior citizens (id. § 29); treatment for breast and cervical cancer (id. § 60); Medicaid for disabled persons (id. § 69); quality improvement programs for nursing homes (id. §§ 5, 26); and assistance for other public health programs.¹² Any residual funds would go to the previously created Health Care Initiatives Pool (Public Health Law § 2807-Z) and be distributed proportionally among its purposes (L 2002, ch 1, part A, § 23). These purposes include programs benefitting uninsured and underinsured children (Child Health Plus), and expanded and catastrophic health care programs, as well as rural health care delivery and access programs (see Public Health Law § 2807-l [1]).

II.

On August 20, 2002, plaintiffs filed a complaint in Supreme Court challenging Chapter 1. Plaintiffs include Empire subscribers whose premiums and benefits will allegedly be adversely affected by the conversion, and organizations that work with chronically ill individuals whose work will allegedly be made more difficult when Empire’s assets are no longer dedicated to not-for-profit purposes. The defendants include the State and various of its entities, and Empire, including the members of its Board.

The complaint consists of eight¹³ causes of action. Plaintiffs allege that Chapter 1 violates the Due Process Clause of article I, § 6 of the State Constitution and the Contract Clause of article I, § 10 of the Federal Constitution; Chapter 1 deprives plaintiffs and Empire of property rights without due process of law; Chapter 1 effects an unauthorized taking of Empire’s and plaintiffs’ private property interests in violation of article I, § 7 of the State Constitution and the Fifth and Fourteenth Amendments of the Federal Constitution; the conversion is invalid because the members of Empire’s Board failed to follow the procedures in the Not-For-Profit Corporation Law; and the members of Empire’s Board breached their fiduciary duties by agreeing to the conversion authorized by Chapter l.¹⁴ The supposition common to these causes of action—the heart of plaintiffs’ grievance—is that assets from the restructuring are not going to be used to further Empire’s historic charitable purposes.

Plaintiffs sought judgment declaring that Chapter 1 violates the state and federal constitutions and enjoining defendants “from taking any action to carry out the unconstitutional directives of the Legislation”; declaring that the members of Empire’s Board breached their fiduciary duty; and enjoining the Board from proceeding with any conversion or other disposition of assets without complying with the Not-For-Profit Corporation Law. Plaintiffs summarized the relief sought as “a permanent injunction prohibiting the conversion or, in the alternative, requiring all conversion proceeds to be paid to a foundation that will carry on Empire’s charitable mission.”

This lawsuit and Empire’s conversion progressed along parallel paths. Empire submitted the new required plan to the Superintendent in June 2002; in this litigation, Empire and the State filed pre-answer motions to dismiss. In October 2002, the Superintendent approved the plan, and plaintiffs filed their opposition to the motions. In November 2002, plaintiffs requested provisional relief directing that any proceeds from the stock sale be held by the Comptroller in a separate account during the litigation’s pendency;¹⁵ they did not seek to block the stock sale, which took place on November 8, 2002.¹⁶ Supreme Court granted plaintiffs the provisional relief that they requested.

On February 28, 2003, Supreme Court granted defendants’ motions to dismiss the complaint in its entirety. Preliminarily, the court determined that plaintiffs, who were subscribers to Empire health plans,¹⁷ had demonstrated a threatened injury in fact (anticipated premium increases) and therefore had standing. Conversely, the court concluded that organizational plaintiffs did not have standing either because their supposed injury in fact was too speculative, or because the interests that they sought to assert were not germane to their organizational purposes.

Supreme Court dismissed plaintiffs’ claim against the State for impairment of contract “for the self-evident reason that there can be no impairment of a contract absent a contractual relationship” (citing Ballentine v Koch, 89 NY2d 51 [1996] [benefit program authorized by statute does not involve contract rights]). The court dismissed plaintiffs’ due process claim against the State on the ground that statutes “are always vulnerable to subsequent statutory amendment or repeal,” and that the alterations here did not amount to a deprivation of due process; and dismissed the takings claims because, “[e]ven if it is assumed, without deciding, that plaintiffs have a property interest in Empire’s assets (a highly dubious assumption), the claims . . . must fail because the Statute does not require Empire to convert” (citing Meriden Trust & Safe Deposit Co. v Federal Deposit Ins. Corp., 62 F3d 449, 455 [2d Cir 1995] [where a company “voluntarily subject(s) itself to a known obligation . . . no unconstitutional taking occur(s)”]). In addition, the court dismissed plaintiffs’ claims against Empire alleging violation of the Not-For-Profit Corporation Law and breach of fiduciary duty, noting that Chapter 1 “supersedes all inconsistent common-law and statutory duties” (see Insurance Law § 7317 Kl [ii]).

Supreme Court, however, also concluded that the facts alleged “clearly suffice to support a cause of action for violation of Article III, § 17 (unnumbered subsection 12) of the State Constitution,” the Exclusive Privileges Clause. Accordingly, the court granted plaintiffs permission to serve an amended complaint and left the restraining order in effect.

The amended complaint, filed on March 31, 2003, alleges only that the Legislature violated article III, § 17 of the State Constitution “by specifically applying to and granting the privilege of conversion to only . . . Empire.”¹⁸ This time around, plaintiffs sought judgment declaring that Chapter 1 was unconstitutional; declaring that the conversion already undertaken was illegal and requesting rescission of the stock sale; enjoining defendants from “taking any further action to carry out the unconstitutional directives of the Legislation”; enjoining the Board from proceeding with any conversion or other disposition of assets without complying with the Not-For-Profit Corporation Law; and directing the Comptroller to “return all proceeds received from Empire as a result of its conversion ... to the owners of shares of Empire, proportional to the number of shares owned.”

In April 2003, defendants moved to dismiss the amended complaint. On October 2, 2003, Supreme Court granted Empire’s unopposed motion to dismiss with respect to the individual members of its Board, but denied the motions with respect to the State and Empire, and denied the motion to vacate the temporary restraining order. The Court held that Chapter 1 violates article III, § 17 of the State Constitution by giving Empire a right otherwise denied to other not-for-profit insurers; that is, the right to convert under Insurance Law § 4301 (j) (1). The parties cross-appealed and the Appellate Division unanimously affirmed both orders. Upon the parties’ application, the Appellate Division granted leave to appeal and certified to us the question of whether its decision and order affirming Supreme Court’s orders was properly made.

III.

Plaintiffs’ Standing

Plaintiffs’ claims fall into two distinct categories for purposes of analyzing standing: that Empire’s Board violated fiduciary duties and the Not-For-Profit Corporation Law; and that Chapter 1 violates individual constitutional rights (property, contract and due process rights).¹⁹ Plaintiffs have standing to assert these claims only if they have “a sufficiently cognizable stake in the outcome so as to cast[ ] the dispute in a form traditionally capable of judicial resolution” (Community Bd. 7 of Borough of Manhattan v Schaffer, 84 NY2d 148, 155 [1994] [citations and internal quotation marks omitted]).

Plaintiffs are not within any of the classes of parties authorized by the Not-For-Profit Corporation Law to challenge the Board’s conduct (see N-PCL 720 [b]).²⁰ Consequently, they rely on Alco Gravure, Inc. v Knapp Found. (64 NY2d 458 [1985]) for standing to press their claims against Empire. There, a foundation was established as a New York not-for-profit corporation with the purpose of aiding employees of businesses associated with Joseph P Knapp. The foundation’s trustees sought to amend the certificate of incorporation to promote a broader range of charitable purposes so that they could transfer the foundation’s assets to a North Carolina foundation, which did not assist individuals and was tax-exempt. The Attorney General did not object to this amendment; Supreme Court approved it.

Aleo Gravure’s New York employees sued the foundation seeking to enjoin the transfer. We found standing by applying principles of trust law, noting that while a “possible beneficiary of a charitable trust” does not normally have standing to sue for enforcement of the trust (only the Attorney General does), this general rule may yield where “a particular group of people has a special interest in funds held for a charitable purpose, as when they are entitled to a preference in the distribution of such funds and the class of potential beneficiaries is sharply defined and limited in number” (id. at 465). The Aleo Gravure plaintiffs had standing because, as employees of a Knapp company, they remained the primary beneficiaries of the foundation’s charitable purposes and so could seek to stop the foundation from adding new beneficiaries.

Here, the mission ascribed to Empire by plaintiffs—“high quality, affordable care for as much of the population as possible”—inures to the public as a whole, not to a “particular group of people” with a “special interest in funds held for a charitable purpose.” As subscribers to Empire’s health plans, plaintiffs cannot and do not claim that they have any greater right to Empire’s assets than the public as a whole. Plaintiffs are not comparable to Aleo Gravure’s New York employees, who were beneficiaries of a private trust as potential recipients of loans from the foundation. Plaintiffs are merely purchasers of health insurance, parties to a commercial transaction with Empire.

Next, plaintiffs’ standing to enforce alleged violations of their individual constitutional rights cannot be taxpayer-based as they do not complain that public funds have been misused. Standing under Aleo Gravure is unavailable to them because their constitutional claims are directed not at the not-for-profit corporation, but at Chapter 1 and the government’s alleged violation of their constitutional rights. Standing to assert these claims is completely intertwined with the nature of the rights supposedly violated.

The only property right that plaintiffs assert is “dedication of Empire’s assets to its charitable mission.” Plaintiffs, either as subscribers to Empire’s health plans or as members of the public as a whole, however, do not have an enforceable “property interest” in the value of Empire’s assets or in the dedication of those assets to Empire’s mission (see Soon Duck Kim v City of New York, 90 NY2d 1, 6 [1997] [“Because the State defines the rights and obligations that constitute property in the absence of any superseding Federal law, the threshold step in a takings inquiry is to determine whether, in light of the existing rules or understandings of State law, plaintiffs ever possessed the property interest they now claim has been taken by the challenged governmental action” (citation and internal quotation marks omitted)]; see also Board of Regents of State Colleges v Roth, 408 US 564, 577 [1972] [“To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it”]). Without a property interest to enforce, there can be no standing (see Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 772, 773 [1991] [standing requires injury in fact, “an actual legal stake in the matter being adjudicated,” as well as an injury within the zone of interests, “tying the in-fact injury asserted to the governmental act challenged”]).

Further, plaintiffs have not established injury in fact on account of an anticipated increase in their premiums or reduction in benefits. This supposed injury is flatly contradicted in the Superintendent’s final determination, and plaintiffs chose not to challenge this aspect of his determination in their CPLR article 78 proceeding. Even assuming injury in fact, plaintiffs have not linked this purported injury (i.e., increased premiums and/or reduced benefits) to the wrong that they seek to redress—the Legislature’s neglect to “dedicate] . . . Empire’s assets to its charitable mission”—or the “principal remedy” that they seek to right this supposed wrong—implementation of Empire’s original restructuring plan (i.e., directing 100% of Empire’s value to a tax-exempt, IRC § 501 [c] [3] charitable foundation). If anything, this alleged injury could only arguably (that is, again ignoring the Superintendent’s final determination) be connected to the Legislature’s authorization of Empire’s changeover from a not-for-profit to a for-profit insurer, not the disposition of the conversion’s proceeds. Plaintiffs, however, do not contest Empire’s change in corporate form.

In fact, what plaintiffs actually seek here is quasi-derivative standing to vindicate Empire’s interests. They argue that Chapter 1 has disabled both the Attorney General, the traditional guardian of the public interest and trust beneficiaries, and the Board, which has a duty of obedience to honor Empire’s not-for-profit mission, from fulfilling their customary roles. The Attorney General, they assert, has been “defrocked” by virtue of his statutory obligation to defend the Legislature’s enactments. Because the statute immunized its actions, the Board has no incentive to jeopardize conversion by questioning whether Chapter 1 diverts Empire’s property from its traditional not-for-profit purposes. As a consequence, only the subscribers remain to champion Empire.

This argument is winning. Aleo Gravure in its particulars does not support plaintiffs’ standing, as already discussed. Still, we recognized in Aleo Gravure that there may be “special interest” factors causing us to relax the usual rules of standing in a specific case where a charitable interest is involved (64 NY2d at 465).²¹ The Attorney General’s and the Board’s disability are special interest factors here. Further, while plaintiffs are not true beneficiaries, as subscribers they benefit from whatever vestiges may remain from Empire’s traditional role as the “insurer of last resort” for those New Yorkers otherwise unable to obtain needed health care. Nor can we ignore the billions of dollars at stake. Accordingly, because of the Attorney General’s and the Board’s unique position after the adoption of Chapter 1, we hold that plaintiff subscribers have standing to prosecute this action solely for purposes of protecting Empire’s not-for-profit assets.

Takings

Plaintiffs invoke both article I, § 7 (a) of the State Constitution (“[p]rivate property shall not be taken for public use without just compensation”) and the Fifth Amendment to the Federal Constitution (“nor shall private property be taken for public use, without just compensation”) to support their claims that Chapter 1 constitutes an illegal taking of Empire’s private property. They allege that Chapter 1 effected an exaction, a regulatory taking and a per se taking.

1. Exaction

In Matter of Smith v Town of Mendon (4 NY3d 1, 10 [2004]), we held that “[enactions are defined as land-use decisions conditioning approval of development on the dedication of property to public use” (citations and internal quotation marks omitted). A condition placed on land use is an exaction, and therefore an unconstitutional taking, if the condition lacks an “essential nexus” with the state interest for which it is imposed (see Nollan v California Coastal Comm’n, 483 US 825, 837 [1987]), and is not “rough[ly] proportional ]” to the impact of the proposed development (see Dolan v City of Tigard, 512 US 374, 391 [1994]).

In Town of Mendon, we rejected the petitioners’ claim that the Planning Board’s conditioning of site plan approval upon acceptance of a conservation easement was an exaction. We did not reach the “essential nexus” and “rough proportionality” tests, deciding that exaction analysis does not apply “where there is no dedication of property to public use and the restriction merely places conditions on development” (4 NY3d at 12). We have confined our exaction analysis to those cases where the condition affects a property owner’s “right to exclude others,” and where a fee is imposed “in lieu of the physical dedication of property to public use” (id., citing Twin Lakes Dev. Corp. v Town of Monroe, 1 NY3d 98 [2003]).

Plaintiffs ask us to find that Chapter 1 imposes an exaction on Empire because conversion is conditioned upon Empire’s dedication of its not-for-profit assets to legislatively articulated public and charitable purposes. We decline to accept plaintiffs’ invitation to expand our exaction analysis beyond the realm of land-use regulation.²² Even if we were to do so, however, Chapter 1 passes both the “essential nexus” and “rough proportionality” tests.

The challenged condition placed on Empire’s property is the dedication of not-for-profit assets to the recruitment and retention of health care workers and public health programs. But Empire began as a captive of hospitals, and has always inhabited a borderland between a government-sponsored entitlement program, such as Medicaid, and a commercial insurer. Empire has traditionally functioned as both a financing device for hospitals and a means to make economical health care available to as many New Yorkers as possible. The dedication of conversion assets to support public health programs and to recruit and retain health care workers is wholly consistent with these activities. In short, there is not only a nexus but a direct correlation between the State’s interest in enacting Chapter 1—allowing Empire to continue to carry out its dual historic mission—and the condition imposed—that Empire’s not-for-profit assets be used for the public health purposes specified in Chapter l.²³

The “essential nexus” test does not mirror N-PCL 1005 (a) (3) (A), which calls for distribution of a Type B not-for-profit’s assets upon dissolution to “one or more domestic or foreign corporations or other organizations engaged in activities substantially similar to those of the dissolved corporation” (emphasis added) (see also Matter of Multiple Sclerosis Serv. Org. of N.Y. [New York City Ch. of Natl. Multiple Sclerosis Socy.], 68 NY2d 32 [1986]).²⁴ This appeal is not here pursuant to N-PCL 511 and so section 1005’s quasi cy pres test does not apply to Empire’s conversion. In any event, it does not follow, as plaintiffs seem to assume, that under N-PCL 1005 Empire’s not-for-profit assets would have to be distributed entirely to a tax-exempt, IRC § 501 (c) (3) charitable foundation. Indeed, another not-for-profit insurer arguably more nearly qualifies as an entity engaged in substantially similar activities. Although plaintiffs liken Empire to a “private charity” and refer to “donors,” history does not bear out the analogy. Empire has never relied on philanthropy or carried out an explicitly charitable agenda. As already noted, Empire’s former federal tax-exempt status was based on IRC § 501 (c) (4) as a social welfare organization. Empire was never a section 501 (c) (3) charity; Empire did not enroll subscribers for free.²⁵

Finally, the condition is “roughly proportional” to the impact of Empire’s conversion because if Empire were to convert through any other mechanism—i.e., the Not-For-Profit Corporation Law—it would be required to dedicate its not-for-profit assets to purposes similar to those for which it was formed—i.e., promoting hospitals and access to health care. Thus, Chapter 1 places conditions on Empire’s property similar to those that could have been imposed in the sale of its assets and dissolution under the Not-For-Profit Corporation Law.

2. Regulatory Taking

Governmental regulation of private property effects a taking if it is “so onerous that its effect is tantamount to a direct appropriation or ouster” (see Lingle, 544 US at —, 125 S Ct at 2081). To determine whether a regulation is proper or goes “too far,” a court must consider the factors identified in Penn Central Transp. Co. v New York City (438 US 104 [1978]; see Lingle, 544 US at —, 125 S Ct at 2085 [holding, for the first time, that the “substantially advance legitimate state interests” test identified in Agins v City of Tiburon (447 US 255, 260 [1980]) “is not a valid method of identifying regulatory takings”]). The primary, but not exclusive Penn Central inquiry turns on “the extent to which the regulation has interfered with distinct investment-backed expectations” (544 US at —, 125 S Ct at 2082 [quoting Penn Central, 438 US at 124]).

First, we note that the compulsion normally present in takings claims is not present in Chapter 1. Chapter 1 does not compel Empire to convert. Rather, Chapter 1 authorizes Empire to convert; conversion only takes place if Empire so chooses (see Meriden Trust, 62 F3d at 455 [voluntary action by bank under statute cannot be a regulatory taking]; Garelick v Sullivan, 987 F2d 913, 916 [2d Cir 1993] [“where a service provider voluntarily participates in a price-regulated program or activity, there is no legal compulsion to provide service and thus there can be no [regulatory] taking”]).²⁶

Plaintiffs contend that Empire had no true choice in the matter, that conversion under Chapter 1 was compelled because it was Empire’s only realistic option for survival. But any duress stemmed from Empire’s inability to prosper as a not-for-profit organization, not from pressure exerted by the State. From at least as early as 1997, Empire planned to convert, merge or dissolve.

In any event, Chapter 1 does not unduly interfere with Empire’s legitimate property interests. As we noted in our exaction discussion, the dedication of conversion assets to support public health programs and to recruit and retain health care workers is wholly consistent with Empire’s historic mission. Chapter 1 allows Empire to continue as a for-profit corporation, placing it in a better competitive position than otherwise would have been its lot. Since Empire’s Board has determined that the most feasible way of continuing as a provider of health insurance in New York is through restructuring, it cannot be said that Chapter l’s dedication of Empire’s not-for-profit assets to public health purposes unduly interferes with Empire’s legitimate property interests or “investment-backed expectations.”

3. Per Se Taking

Plaintiffs allege that the transfer of the stock sale’s proceeds to the public asset fund constitutes a per se taking because it is a “direct physical invasion” of Empire’s property (see Loretto v Teleprompter Manhattan CATV Corp., 458 US 419, 426 [1982]). This claim is without merit. There can be no direct physical invasion where a corporation voluntarily elects to proceed under a statute allowing it to convert from a financially distressed not-for-profit to a new for-profit entity.

Due Process

Plaintiffs allege that Chapter 1 deprives Empire of its property interests without due process of law. This claim is based on article I, § 6 of the State Constitution and the Fifth Amendment of the Federal Constitution, made applicable to the states by the Fourteenth Amendment, which provide that no person shall “be deprived of life, liberty, or property, without due process of law.”

Plaintiffs contend that process is lacking because Chapter l’s procedural safeguards do not encompass any input from the public, the Attorney General or Supreme Court into how Empire’s not-for-profit assets are to be deployed. To the contrary, however, Chapter 1 provides Empire with process and plaintiffs with a remedy to grieve many of the Superintendent’s determinations.

First, Empire had to choose to proceed with the conversion. Second, public hearings were required. Third, the Superintendent could only approve the conversion if he first determined that it would not adversely affect Empire’s subscribers or “the delivery of health care benefits and services to the people of the state of New York” (Insurance Law § 7317 [b]). Finally, if plaintiffs took issue with the Superintendent’s approval of the plan, they had the right to challenge it in a CPLR article 78 proceeding.

Contract Clause

Plaintiffs contend that Chapter 1 violates article I, § 10 (1) of the Federal Constitution, which provides that “[n]o State shall . . . pass any . . . Law impairing the Obligation of Contracts.” This provision “bars the States from enacting legislation impairing the obligation of contracts” (Patterson v Carey, 41 NY2d 714, 721 [1977]). Plaintiffs also bring this claim under article I, § 6 of the New York Constitution, which provides that “[n]o person shall be deprived of life, liberty or property without due process of law.” Under this provision “the State may not deprive a party to a contract of an essential contractual attribute without due process of law” (41 NY2d at 720).

Plaintiffs assert that Empire’s certificate of incorporation (COI) is a contract between Empire and the public, and that this contract was substantially impaired by Chapter 1. The COI is not a contract (see Cook v City of Binghamton, 48 NY2d 323 [1979] [while legislation (i.e., N-PCL 403, providing that corporate existence begins with filing of COI) may create contractual rights, presumption is that it does. not]). There is no indication that the Legislature, in enacting the Not-For-Profit Corporation Law, intended to make the COI a binding contract between not-for-profit corporations and the public. “[W]here there is no existing contractual agreement regarding the terms changed by the legislation, there is no need to consider whether there was in fact an impairment and whether it was substantial” (Ballentine, 89 NY2d at 60).

Chapter 1 does not impair the COI. A COI may be changed in any number of ways (see N-PCL 801 [b] [2] [allowing corporation to change its corporate purposes]; NY Const, art X, § 1 [giving Legislature authority to change laws under which corporations are formed]). Chapter 1 did not change the COI; actions by Empire and the Superintendent changed the COL Moreover, plaintiffs do not challenge the only “impairment” that results from Chapter 1; namely, Empire’s conversion from not-for-profit to for-profit status. As a not-for-profit corporation, Empire was bound to carry out its not-for-profit purposes, but these purposes do not constitute a contract that Chapter 1 impairs.

Fiduciary Duty/N-PCL

Plaintiffs broadly allege that notwithstanding Chapter 1, the conversion was required to follow the procedures in N-PCL 510 and 511. They also contend that Empire’s Board breached its fiduciary duty by deciding to convert. Indeed, plaintiffs allege that even before Chapter 1 was enacted, the Board breached its fiduciary duty by “invit[ing] the politician-legislators” to decide how its assets should be used after the conversion rather than making its own determination.

The short response to this claim is that Chapter 1 supersedes all inconsistent common-law and statutory duties (Insurance Law § 7317 [f] [ii]). Even were the Court to somehow overcome this obstacle, the business judgment rule, which we discussed most recently in 40 W. 67th St. v Pullman (100 NY2d 147 [2003]), bars plaintiffs’ claims. To the extent that plaintiffs complain about action occurring before Chapter 1 was enacted (i.e., “inviting” the Legislature to decide how to allocate Empire’s not-for-profit assets), this claim is without merit because the plan of conversion—whether the one presented to the Superintendent in 1999 or the one presented to him after Chapter l’s enactment—was, in the Board’s judgment, necessary to safeguard Empire’s continued viability (see Auerbach v Bennett, 47 NY2d 619, 629 [1979] [the business judgment rule “bars judicial inquiry into actions of corporate directors taken in good faith and in the exercise of honest judgment in the lawful and legitimate furtherance of corporate purposes”]).

Exclusive Privileges Clause

Plaintiffs argue that Chapter 1 violates article III, § 17 of the State Constitution by authorizing Empire alone to convert to a for-profit corporation. Article III, § 17 prohibits the Legislature from adopting a “private or local bill” falling into 1 of 14 specified categories. The twelfth category encompasses bills “[granting to any private corporation . . . any exclusive privilege, immunity or franchise whatever.” Thus, two elements are required in order for a bill to offend article III, § 17. First, the bill must be directed at a single entity (see Matter of Henneberger, 155 NY 420, 425-426 [1898] [“the fact that an act operates only upon a limited area, or upon persons within a specified locality and not generally throughout the state, is, in most cases, a reasonably accurate test by which to determine whether the act is general or local” (internal quotation marks omitted)]). Second, the bill must confer a privilege upon the single entity to the exclusion of all others. Both elements—singleness and exclusivity—must be present. Otherwise, all legislation directed at a single entity would be invalid.

Chapter 1 is a “private or local bill” because it applies only to Empire. But Chapter 1 does not confer an exclusive privilege because it does not authorize Empire to prevent others from seeking to convert under similar parameters, or promise Empire that other not-for-profits will not be granted similar rights (see Trustees of Exempt Firemen’s Benevolent Fund of City of N.Y. v Roome, 93 NY 313, 328 [1883] [“exclusive” means that the privilege the beneficiary receives from the local or private law would be “disturbed or invaded if the State should give to another corporation” the same rights]; Matter of Union Ferry Co. of Brooklyn, 98 NY 139, 150 [1885] [“The constitutional prohibition was evidently aimed at monopolies. At granting to corporations or individuals not merely privileges and franchises not possessed by others, but the right to exclude others from the exercise or enjoyment of like privileges or franchises”]).²⁷ Indeed, Chapter 1 only grants Empire the right to operate as a for-profit insurer, a right that numerous other insurers currently enjoy in New York, and which others may receive upon application to the Superintendent. Because the privilege granted to Empire is not exclusive, Chapter 1 does not violate article III, § 17.

IV

Plaintiffs do not challenge Empire’s actual conversion from a not-for-profit to a for-profit corporation. Instead, they decry the uses to which the conversion’s proceeds—Empire’s not-for-profit assets—will be put. They particularly object to funding the recruitment and retention of health care workers. They warn that unless we rule in their favor, Chapter 1 will mark “but the first step in a progressive cannibalization of New York’s nonprofit sector” by the Legislature.²⁸ These strong words are justified, plaintiffs insist, because the Legislature, after neutralizing the Attorney General’s and the Board’s capacity or appetite to resist, ignored Empire’s not-for-profit purposes when designating uses for Empire’s not-for-profit assets.

We cannot agree. Even plaintiffs define Empire’s mission as “promoting affordable and accessible health care coverage,” a broad expression of purpose. Fidelity to this purpose does not mandate creation of a charitable foundation devoted to health care funded by the entirety of Empire’s not-for-profit assets, plaintiffs’ preferred policy choice. Fidelity to this purpose surely does not compel neglecting the needs of New York’s hospitals. The hospitals and Empire have always played mutually supportive roles in our state’s interrelated and complex health care delivery system. Specific programs to be funded with conversion proceeds—such as EPIC and Child Health Plus—benefit the uninsured or the underinsured. In short, Chapter 1 designates a range of public health-related uses that fall comfortably within a reasonable interpretation of Empire’s historic not-for-profit mission.

Accordingly, the order of the Appellate Division should be modified, with costs to defendants, by granting defendants’ motions to dismiss the amended complaint and, as so modified, affirmed. The certified question should be answered in the negative.

1 . The Membership Corporations Law was a predecessor of the Not-For-Profit Corporation Law (see N-PCL 103).

2 . Plaintiffs incorporated this article into their complaint.

3 . A social welfare organization has as its exempt function the social welfare of the public (IRC § 501 [c] [4] [A] [provides tax exemption for “(c)ivic leagues or organizations not organized for profit but operated exclusively for the promotion of social welfare”]). “Social welfare” is equated by regulation with the “common good and general welfare” and with “civic betterments and social improvements” (Treasury Regulations [26 CFR] § 1.501[c][4]-l [a] [2] [i]). Many organizations with federal tax-exempt status are not charities, including labor organizations (IRC § 501 [c] [5]), trade associations (IRC § 501 [c] [6]), fraternal societies (IRC § 501 [c] [10]) and social clubs (IRC § 501 [c] [7]).

4 . See Tax Reform Act of 1986, Pub L 99-514, § 1012 (a), 100 US Stat 2085, 2394 (1986), codified at IRC § 501 (m) (providing that section 501 [c] [4] organizations are exempt from taxation “only if no substantial part of [their] activities consist[ ] of providing commercial-type insurance,” unless they subsidize premiums for many low-income enrollees or their activities fall within certain other narrow exceptions; under IRC § 833, the Blues retain certain tax advantages by calculating taxable income in a manner different from that used by commercial insurers); see also Singer, The Conversion Conundrum.: The State and Federal Response to Hospitals’ Changes in Charitable Status, 23 Am JL & Med 221, 226 n 24 (“As a result of the Tax Reform Act of 1986, Blue Cross plans were stripped of their federal tax exemption, on the basis that the selling of insurance was not a charitable activity under the Internal Revenue Code § 501 [m], . . . This left Blue Cross plans without the ability to secure tax-exempt financing and yet unable to sell stock because of their nonprofit structure when first established under enabling legislation”).

5 . This bailout was contingent upon Empire’s discontinuing a lawsuit challenging the State’s financing and use of a malpractice insurance fund.

6 . For example, dissolution would have provided “no mechanism to unlock the going-concern value of Empire’s profitable business lines [and] could entail significant waste of valuable assets” (Testimony of Ira M. Millstein, outside counsel to Empire, before the New York State Assembly Standing Committees on Insurance and Health, Apr. 11, 1997, at 15). It would also remove Empire as an insurer in New York State, lessening competition to the detriment of consumers.

7 . In 1999, article 43 of the Insurance Law, the article under which Empire operated, provided at section 4301 (j) that

“[n]o medical expense indemnity corporation, dental expense indemnity corporation, health service corporation, or hospital service corporation shall be converted into a corporation organized for pecuniary profit. Every such corporation shall be maintained and operated for the benefit of its members and subscribers as a co-operative corporation.”

Section 7301 of the Insurance Law specifies that “[n]o insurer organized or licensed under this chapter shall convert to a different type of insurer except as provided in this article.”

8 . The Attorney General’s other principal objections were “old” Empire’s continued control over the charitable foundation receiving the not-for-profit assets; whether the foundation would receive fair value under such control; and whether “old” Empire’s continued control over “new” Empire would compromise an arm’s length valuation of the conversion.

9 . Insurance Law § 4301 (j) (2) now provides that

“[a]n article forty-three corporation which was the subject of an initial opinion and decision issued by the superintendent on or before December thirty-first, nineteen hundred ninety-nine, as the same may be amended, may be converted into a corporation or other entity organized for pecuniary profit, or into a for-profit organization, in any such case, in accordance with the provisions of section [7317] of this chapter.”

10 . Specifically, section 7317 (f) (ii) states that

“compliance with this section and subsection (j) of section four thousand three hundred one of this chapter and the use of such funds as provided in such section, and in subsection (k) of this section, shall be deemed to constitute compliance with and shall supercede all such other legal requirements, including, but not limited to, statutory, common law and any other requirements relating to not-for-profit corporations and fiduciary requirements applicable to the board of directors of any company filing a plan pursuant to this section.”

11 . The Charitable Asset Foundation’s mission is stated to be the “(A) expansion of access to health care by extending health insurance coverage to state residents who cannot afford to purchase their own coverage or who have coverage that is inadequate to meet their needs;

“(B) expansion and enhancement of access to health care by augmenting and creating health care programs that deliver services to populations that are unable to access health care or that improve public health; and

“(C) augmentation of its other program priorities by supporting programs that inform and educate New Yorkers about public health issues and empower communities to address these issues by becoming more effective at identifying and articulating health care needs and implementing solutions.

“Programs or initiatives instituted by the charitable organization shall not neglect the residents or institutions served by the applicant prior to the conversion” (Insurance Law § 7317 [k] [3]).

12 . By our estimation, roughly 65% of the funds from Empire’s conversion were directed over three years to employee recruitment and retention.

13 . Plaintiffs subsequently withdrew a ninth cause of action, which alleged that Empire does not qualify to convert under the terms of Chapter 1. The relief sought by plaintiffs on this cause of action was a declaration that Chapter 1 does not permit Empire’s conversion.

14 . Plaintiffs also alleged a violation of 42 USC § 1983, and requested a constructive trust (purportedly a cause of action). Section 1983 is a vehicle for enforcing constitutional rights, which presupposes state action (see Tancredi v Metropolitan Life Ins. Co., 316 F3d 308 [2d Cir 2003] [no state action where a state-chartered mutual life insurance company reorganizes into a domestic stock life insurer under provisions of the Insurance Law]). Even if there were state action, plaintiffs’ section 1983 claim rises or falls with its constitutional claims. Further, a constructive trust is only imposed upon a finding of “(1) a confidential or fiduciary relation, (2) a promise, express or implied, (3) a transfer made in reliance on that promise, and (4) unjust enrichment” (Bankers Sec. Life Ins. Socy. v Shakerdge, 49 NY2d 939, 940 [1980]). Plaintiffs did not allege any of this in the original complaint, and did not renew their request for a constructive trust in their amended complaint.

15 . In November 2002, plaintiffs also commenced a CPLR article 78 proceeding to contest the Superintendent’s final determination approving Empire’s plan. Plaintiffs disputed only the distribution to the public asset fund of 100% of the proceeds from a judgment that Empire obtained against seven tobacco companies, arguing that 5% of these proceeds should have been distributed to the charitable organization. They did not contest any other aspect of the Superintendent’s final determination, including his conclusion that conversion would not adversely affect subscribers’ premiums or benefits.

16 . WellChoice, the holding company for Empire, raised $417.5 million in the stock market on the IPO’s first day. About 16.7 million shares, or 20.3% of the company’s stock, were sold at an initial price of $25, valuing the company at about $2 billion (Freudenheim, Judge Freezes Proceeds Raised from Health Insurer’s Stock Sale, New York Times, Nov. 9, 2002, at C14).

17 . These subscriber plaintiffs include Consumers Union of U.S., Inc., which held a group subscriber contract, and five individuals.

18 . The amended complaint also added the New York Charitable Asset Foundation, the charitable organization authorized by Chapter 1 (Insurance Law § 7317 [k]), as a defendant.

19 . None of the defendants challenged plaintiffs’ standing to bring the amended complaint, which alleges only violation of New York Constitution, article III, § 17.

20 . Under N-PCL 720 (b), an action concerning transfer of the corporation’s assets may be brought by the Attorney General, by the corporation or, in the right of the corporation, by a director or officer; receiver, trustee in bankruptcy, or judgment creditor; member; or holder of a subvention certificate or any other contributor to the corporation of cash or property of the value of $1,000 or more.

21 . Compare Goldschmid, The Fiduciary Duties of Nonprofit Directors and Officers: Paradoxes, Problems, and Proposed Reforms, 23 J Corp L 631 (1998) (suggesting cautiously opening the door for donor, member and beneficiary derivative actions, especially to challenge conversions, which are likely to be one-shot, decisive transactions in the life of a nonprofit entity), with Atkinson, Unsettled Standing: Who (Else) Should Enforce the Duties of Charitable Fiduciaries ?, 23 J Corp L 655 (1998) (pointing out conceptual flaws and practical problems with theories for broadening standing to enforce the duties of charitable fiduciaries); see also Blasko and Crossley, Standing to Sue in the Charitable Sector, 28 USF L Rev 37 (1993).

22 . Judge R.S. Smith in his dissent observes that “[n]o thing in the Supreme Court’s exactions decisions suggests that their rationale is limited to real property” (R.S. Smith dissenting in part op at 380). The Supreme Court, however, has never applied exactions analysis outside the context of land-use regulation. In its recent decision in Lingle v Chevron U.S.A., Inc. (544 US 528, —, —, 125 S Ct 2074, 2081, 2087 [2005]), the Court placed Nollan and Dolan in “the special context of land-use exactions,” and referred to a “land-use exaction violating the standards set forth in Nollan and Dolan” as one of four distinct theories that might be pursued by a plaintiff seeking to challenge a government regulation as an uncompensated taking.

23 . It is important to note that a far different property interest is at stake here than was the case in Nollan and Dolan. In those cases, the landowners were required to surrender their right to exclude others from their property— “one of the most essential sticks in the bundle of rights that are commonly characterized as property”—in exchange for land-use permits (Nollan, 483 US at 831 [internal quotation marks and citation omitted]). Here, Empire would be required to distribute its not-for-profit assets under any restructuring process, including the one outlined in N-PCL 1005 (a) (3) (A). Thus, this case entails Empire’s more limited interest in ensuring that, upon conversion, its assets will be used in accordance with its historic mission.

24 . In Multiple Sclerosis, we interpreted this statutory standard as follows:

“Under the quasi cy pres standard of the Not-For-Profit Corporation Law, a Supreme Court Justice in determining whether to approve the plan of distribution proposed by the corporation’s board, and if not to what other charitable organizations distribution should be made, should consider (1) the source of the funds to be distributed, whether received through public subscription or under the trust provision of a will or other instrument; (2) the purposes and powers of the corporation as enumerated in its certificate of incorporation; (3) the activities in fact carried out and services actually provided by the corporation; (4) the relationship of the activities and purposes of the proposed distributee(s) to those of the dissolving corporation, and (5) the bases for the distribution recommended by the board” (68 NY2d at 35).

25 . For the same reason that the Blues lost federal tax exemption—their activities do not differ fundamentally from those of commercial insurance companies—their conversions fit but awkwardly within the framework of charitable trust law (see e.g. ABC for Health, Inc. v Commissioner of Ins., 250 Wis 2d 56, 640 NW2d 510 [2001], review denied 252 Wis 2d 149, 644 NW2d 686 [2002] [Wisconsin Blue Cross/Blue Shield organization not a charity to whose conversion cy pres doctrine applies because not operated exclusively for charitable purposes but for benefit of individuals who paid premiums to become policyholders]; see also Abbott v Blue Cross & Blue Shield of Tex., Inc., 113 SW3d 753 [Tex Ct App, Austin 2003], review denied 2004 Tex LEXIS 1158 [2004] [Blue Cross and Blue Shield of Texas not a public charity that must preserve its assets for charitable purposes because corporation provided for group hospital plans for benefit of its members who purchased services, not for general charitable purposes]).

26 . Plaintiffs’ reliance on Illinois Clean Energy Community Found, v Filan (392 F3d 934 [7th. Cir 2004] [ICECF]) is misplaced. There, Illinois authorized a $4.8 billion sale of Commonwealth Edison’s power plants so long as the utility agreed to fund a new energy conservation foundation with $225 million from the sale’s proceeds. Later, after the foundation had been established, the State Legislature amended the authorizing statute to require that the foundation give $125 million of its assets to the State. The Seventh Circuit found this a taking of the foundation’s property. In ICECF, the foundation sued over legislation which was retroactively amended to require it to turn assets over to the State. Here, on the other hand, Empire was given the choice to convert, knowing that if it did, Chapter 1 directs that its not-for-profit assets will be used for public health purposes.

27 . The 1938 Constitutional Convention expressly endorsed Union Ferry’s reasoning that the Exclusive Privileges Clause was aimed at monopolies (see 7 Report of 1938 NY Constitutional Convention Comm, Probléms Relating to Legislative Organization and Powers, at 84).

28 . Although the language in Judge R.S. Smith’s dissent is decidedly more tempered, it likewise tends to focus on a “parade of horribles” and hypothetical legislative abuses (e.g., legislation “compel[ling] the use of 95% of an art museum’s money for prison construction” [R.S. Smith dissenting in part op at 377]) far removed from the facts of this case. As Justice Samuel Miller instructed in United States v Lee (106 US 196, 217 [1882]): “Hypothetical cases of great evils may be suggested by a particularly fruitful imagination in regard to almost every law upon which depends the rights of the individual or of the government, and if the existence of laws is to depend upon their capacity to withstand such criticism, the whole fabric of the law must fail.”