(Reuters) - An already controversial class action settlement looks like it’s in for even more intense scrutiny: On Tuesday, attorneys general from nine states and the District of Columbia urged a federal district judge to reject a proposed deal that would release claims by owners of about 7.5 million Remington rifles with a trigger mechanism that can supposedly cause the guns to fire without anyone pulling the trigger.
The problem, according to an amicus brief by the AGs, is that fewer than 20,000 owners of the allegedly defective guns – about one-quarter of 1 percent of the class – have actually filed claims. The AGs’ brief argued that this is a “shockingly low” claims rate for a class action involving a potentially fatal alleged flaw.
“For any product, a claims rate this low is troubling,” the brief said. “But for rifles whose dangerousness is real, well- documented and pervasive, the anticipated minimal number of retrofits is potentially deadly. If approved, millions of the 7.5 million firearms that have the capability of firing without a trigger pull would remain unfixed – quite literally loaded guns that might go off accidentally at any time.
The AGs asked the judge overseeing the class action, U.S. District Judge Ortrie Smith of Kansas City, Missouri, for leave to file the amicus brief, which was attached as an exhibit to their motion. Judge Smith ordered expedited briefing on the AGs’ motion from Remington’s lawyers at Shook Hardy & Bacon and Swanson Martin & Bell and class counsel at Neblett Beard & Arsenault, Levin Sedran & Berman and Lanier Law Firm (among others).
The claims rate in the Remington class action settlement, as you may recall, has been an issue for more than a year. In 2015, when Remington agreed to fix the problematic triggers (or to reimburse gun owners for the cost of fixes), the company and lawyers for the class said there was no way to come up with a specific list of rifle owners because, among other reasons, Remington doesn’t sell directly to the public. Plaintiffs' lawyers brought in experts to design a direct mail and advertising campaign to notify class members. Its results were underwhelming: as of December 2015, fewer than 2,500 class members had filed claims.
That wasn’t good enough for Judge Smith, who told Remington and class lawyers to come up with a new plan to encourage rifle owners to file claims. The pumped-up notification program launched this summer. It included outreach to gun owners through social media, radio ads and posters in thousands of gun shops, in addition to nearly a million emails and 93,000 postcards sent to potential class members whose contact information was in Remington’s databases.
The good news, as Remington and class counsel informed Judge Smith Tuesday in a joint motion for final approval of the settlement, is that the additional outreach boosted the claims rate by more than 800 percent. The bad news is that the eightfold increase translates to about 17,000 new claims, a tiny fraction of the possibly defective rifles in the hands of gun owners. (The alleged defect isn’t just theoretical: According to CNBC’s 2010 documentary, "Remington Under Fire," the trigger mechanism has been linked to dozens of deaths and hundreds of injuries. Remington has always denied its rifles are defective and did not concede class allegations in the settlement agreement.)
In both the joint motion for final approval and a newly-filed joint response to objectors to the settlement, Remington and lawyers for the class contended their notification campaign has been as sophisticated and far-reaching as any in class action history. The original notice program alone exposed three-quarters of the class to three notifications apiece about the proposed settlement, they said, and the supplemental campaign went far beyond the minimum requirements of due process and the federal rules. Remington and class lawyers argued that any additional requirements – including objectors’ call for mailed notices to potential class members – are outside the bounds of the reasonable effort the rules demand.
The AGs (from D.C., Hawaii, Maine, Maryland, Massachusetts, New York, Oregon, Pennsylvania, Rhode Island and Washington) don’t really quibble with the technicalities of how class members were notified but instead argued that the language of the notice wasn’t explicit enough about the danger rifle owners may face if they don’t get triggers fixed. Remington has received more than 2,000 complaints in the past four years alone, the AGs’ proposed amicus brief said. In that context, the notices class members received “fail to convey that correction of the defect is urgent or that failure to replace the trigger could have life-threatening consequences.”
The AGs said many class members are already entitled, through Remington’s voluntary recall program, to the same trigger mechanism replacement the class settlement offers – and if they retrofit their rifles outside of the class process, they don’t have to release claims. Their amicus brief called on Remington to fix the trigger mechanisms for every rifle owner who filed a claim in the class action, regardless of what happens to the settlement.
I’m sure Remington and class counsel will have a lot to say about the AGs’ amicus brief when they respond next week to the AGs’ motion for leave to file it. I reached out to Remington lawyers John Sherk of Shook Hardy and Dale Wills of Swanson Martin, as well as plaintiffs' lawyers Richard Arsenault, Charles Schaffer and Mark Lanier. None got back to me.
The views expressed in this article are not those of Reuters News.