November 13, 2019 / 7:56 PM / a month ago

Firearms industry: Supreme Court’s skip of Sandy Hook gun case presages litigation onslaught

(Reuters) - The firearms industry is on the verge on a potentially crushing wave of litigation from the victims of gun violence.

Well, maybe. That prediction comes not from gun control advocates but — believe it or not — from the firearms industry, gun owners, the National Rifle Association and states that strongly back gun rights. All of them filed amicus briefs at the U.S. Supreme Court in Remington Arms v. Soto – and all of them warned that if the justices did not grant Remington’s petition for review of a 2019 ruling (331 Conn. 53) by the Connecticut Supreme Court in a landmark gun liability case, the entire industry could be at risk.

The justices did not heed the doomsday warnings. On Tuesday, as my colleague Andrew Chung reported, the U.S. Supreme Court denied Remington’s petition for review of the state supreme court decision. The justices’ rejection means that family members of victims of the horrific 2012 massacre at Sandy Hook Elementary School can move ahead with claims that Remington Arms, which manufactured the Bushmaster semi-automatic rifle used in the mass shooting, is liable under Connecticut’s unfair trade practices statute for marketing and promoting a military-style weapon to civilians.

In some ways, the Connecticut Supreme Court decision is a narrow one, as the victims’ U.S. Supreme Court counsel from Munger, Tolles & Olson emphasized in their brief opposing review. The Connecticut justices acknowledged that Congress, in the 2005 Protection of Lawful Commerce in Arms Act, provided sweeping immunity from liability for gun makers and sellers. One of the very few exceptions to that shield is for claims that a firearms defendant “knowingly violated a state or federal statute applicable to the sale or marketing of the products.” Gun defendants have always portrayed that exception to address only instances in which they allegedly falsified paperwork on firearms sales or abetted a sham purchase that put a weapon in the hands of an ineligible gun owner.

But, as I’ve reported, the Connecticut Supreme Court found in the Remington case that the state’s unfair trade practices statute fits into the PLCAA exception for laws “applicable to the sale or marketing” of firearms. Gun shooting victims could pierce PLCAA immunity, the Connecticut court ruled, if they could prove that Remington violated Connecticut’s trade practices statute.

The Sandy Hook victims’ brief argued that even Connecticut hadn’t opened the door to all suits by gun violence victims wielding the state consumer protection law. “The court confined its ruling to the claims before it, which ‘allege only that one specific family of firearms sellers advertised one particular line of assault weapons in a uniquely unscrupulous manner,’” the brief said. Sandy Hook victims also cited a brief from gun control advocates at the Law Center to Prevent Gun Violence to the Connecticut Supreme Court, arguing that consumer protection laws in most states other than Connecticut would not permit suits by gun violence victims. “Claims of industry-ending liability are warrantless,” the Sandy Hook victims said.

But that’s not the story that the U.S. Supreme Court heard from Remington’s lawyers at Baker Botts and their amici from the National Rifle Association, the National Shooting Sports Foundation, the Gun Owners of America and states including Texas, Georgia and Oklahoma. Texas and the other states said, for instance, the Connecticut ruling “raises the specter of nationwide liability” because many states – including Texas – have consumer protection statutes similar to Connecticut’s law. Plaintiffs lawyers, the states warned, are already plotting how to use the Connecticut ruling to launch suits elsewhere.

The NRA brief listed some of those suits, in Nevada, Ohio and Indiana. “The exception allowed by the Connecticut Supreme Court will swallow the Protection of Lawful Commerce in Arms Act rule nationwide,” the brief said. “If left unchecked, this misuse of PLCAA’s predicate exception will effectively eliminate protection of the firearm industry against this pernicious and unprecedented litigation.”

NSSF argued that even if the firearms industry ultimately prevails in suits based on allegations of improper marketing in violation of state consumer protection laws, defending that litigation will cripple gun makers and sellers. The whole reason Congress passed the federal law immunizing the industry from most civil suits, the brief said, was because the industry was bleeding defense costs even though it was winning most of the cases against it. A denial of help from the U.S. Supreme Court in the Connecticut case, NSSF said, “will open the door for plaintiff attorneys and elected officials to bombard the firearm industry with lawsuits and threaten it with financial ruin—the same scenario that prompted Congress to enact the PLCAA in the first place.” At the very least, the brief said, gun makers and sellers may be unable to retain liability insurance, another repeat of the troubles they faced in the years before PLCAA.

I reached out to several gun industry defense lawyers on Wednesday to ask if they’re still of the view they espoused in their Supreme Court briefs. Remington lawyer Scott Keller of Baker Botts, Lawrence Keane of the NSSF, and NRA counsel John Sweeney of Bradley Arant Boult Cummings didn’t immediately get back to me. Nor, for that matter, did Donald Verrilli of Munger Tolles, who was counsel of record for the Sandy Hook families at the Supreme Court.

But I did talk to two law professors – Timothy Lytton of Georgia State and insurance expert Thomas Baker of Penn — and gun control lawyer Adam Skaggs of the Giffords Law Center to Prevent Gun Violence about the U.S. Supreme Court’s decision not to take the Connecticut case. They all said that the gun industry’s amicus brief reports of its own imminent death are exaggerated, but that the justices left open a pathway for more litigation against an industry that has been almost entirely shielded for 15 years.

“This definitely opens opportunities for gun violence victims,” said Lytton. States in which consumer protection laws can be enforced by plaintiffs other than consumers may try to sue, like the Sandy Hook families, under unfair trade practice statutes. Other gun violence victims, he predicted, could use the Connecticut Supreme Court’s reasoning on PLCAA’s exceptions to attempt to assert nuisance claims in state court. (Federal court precedent from the 9th and 2nd Circuits have interpreted PLCAA’s exception more narrowly.)

“If you’re talking about plaintiffs actually winning suits, it’s not a sea change,” said Lytton. “If you’re just talking about plaintiffs litigating, it is.”

And just being allowed to proceed with claims, said Skaggs of the Gifford Law Center, means shooting victims can obtain discovery and testimony from gun company officials. That’s evidence they haven’t had access to since PLCAA, Skaggs said. “Now victims will have an opportunity to make their case in court,” he added.

And yes, as the NSSF warned, liability insurers will be watching. To a large extent, says Penn’s Baker, insurers have already built the Connecticut Supreme Court’s decision into their pricing models for gun makers and sellers. But Baker said the U.S. Supreme Court’s decision not to review the Connecticut ruling could drive up prices and make it harder for potential gun injury defendants to obtain excess layers of coverage.

In short: The sky may not be falling for the gun industry after the Supreme Court’s refusal to review the Connecticut decision to allow the Sandy Hook families to move ahead with their suit. But the clouds are beginning to roll in.

The views expressed in this article are not those of Reuters News.

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