by Nicolas Gregoris, Mises Institute:
Remington Arms, America’s oldest gun manufacturer, settled for $73 million in a wrongful-death suit filed by the families of several victims of the Sandy Hook shooting. Bushmaster, the company that actually manufactured the rifle used in the shooting, is owned by Remington Outdoor Company.
The settlement followed seven-plus years of litigation, two Remington-bankruptcies, and a previous settlement offer from the gun manufacturer of $33 million, which the nine plaintiffs declined. The outcome of the case is being touted by anti-gunners, the corporate press and Democrat politicians, as a victory over the gun lobby. President Biden called the settlement “historic”.
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The anti-gunners, however, are wrong. The settlement was neither a victory, nor historic, but instead revealed yet another way political actors can undermine gun rights – which is why they are so excited about it.
Not Your Typical Case
Gun manufacturers are usually protected from these kinds of lawsuits by the 2005 Protection of Lawful Commerce in Arms Act (PLCAA). PLCAA prevents arms makers from being sued due to the misuse or criminal use of their products by a third party. Without this protection the gun industry would be subject to unique and extremely broad liability claims, making PLCAA one of the only sensible pieces of legislation Congress passed in the past 150 years…which explains why it is so reviled by Hillary Clinton and her political allies.
Gun-control advocates claim that PLCA provides “blanket immunity” from lawsuits. That is not true; under PLCAA, gun manufacturers can still be sued on multiple grounds including: traditional product liability (i.e. a gun is defective and causes injury), negligence (they transferred the gun to someone they had reasonable cause to believe was prohibited from owning a firearm), or violating of laws surrounding the sale (e.g., lying in your books).
The plaintiff’s attorney, Joshua Koskoff, packed the initial lawsuit with a slew of allegations which were dismissed by a Connecticut lower court, as the allegations were invalid under PLCAA. In 2019, however, the Connecticut Supreme Court ruled that the wrongful-death suit could move forward on the basis of a “wrongful-advertising” claim that was included in the original set of allegations. Koskoff argued that Remington “knowingly marketed and promoted the Bushmaster XM15-E2S rifle for use in assaults against human beings.”
The plaintiffs cited marketing slogans such as: “Consider your man card reissued”, “Clear the Room, Cover the Rooftop, Rescue the Hostage”. None of those claims are inherently violent, and certainly not an appeal to young men to commit mass murder. For example, Ford claims its trucks are built with “military grade aluminum,” which would mean that victims of the Waukesha Massacre should be able to sue Ford. Why else would a truck need anything “military-grade” unless it was supposed to be rammed through 80 people?
Although the case was allowed to move forward, the Connecticut Supreme Court acknowledged that winning the case in court would be a “herculean task”. The plaintiffs would have had to prove that Bushmaster’s marketing contributed to the shooter’s decision to commit the atrocity. Since the shooter did not buy the gun himself, but instead, murdered his mother and stole it from her, it is not hard to see how the claim that advertising was relevant whatsoever would have been a stretch. But if the case was virtually unwinnable, why did Remington settle?
Death by a Thousand Lawsuits
Technically, Remington did not settle – four insurance companies that represented it did. Furthermore, a settlement, by definition, means that Remington did not accept liability. The idea that this is a “victory” is asinine.
The point still stands, however. The bankrupt-Remington and its agents settled because winning the case in a court of law would have been even more costly than settling because of the additional legal fees required. Keep in mind, litigation had already been going on for over seven years.
It is astronomically less expensive to be a plaintiff since they are generally paid from the settlement, i.e. after litigation is finished. The defense needs to pay up front. Activists can just keep hurling frivolous lawsuit after lawsuit at gun-manufacturers until something sticks. No big deal if the case gets thrown out, simply take notes and try again. Since the government legal system is slow and awful, the mountain of attorney’s fees needed to defend against these suits places an enormous financial burden on gun companies.
Despite talk about how “big” and “powerful” gun companies are, they are actually rather small, as selling guns is a low-margin business. Ruger, the largest firm in the industry, has a market cap of around $1 billion. This sounds substantial until you realize that Google makes that in profit every week. The amount of money required to defend against lawsuits like this could easily bankrupt many gun-manufacturers, which means they are forced to settle and their liability insurance pays. When word gets out that the gun industry is vulnerable to this type of attack, insurance costs skyrocket.
This was exactly the plan in this suit. Either kill Remington with legal fees, or insurmountable insurance costs. One of the plaintiffs admitted they wanted to send the message: “this is a high-risk market, it is not profitable, and you will be held accountable.”
No, this Wasn’t “Historic” – It’s a Dirty Old Trick
This type of lawsuit was commonplace prior to the passage of PLCAA – one almost bankrupted Smith and Wesson. Ridiculous, long-shot lawsuits were a favorite tactic of anti-gun activists and politicians in the 90’s and early 2000’s.
Handgun Control, Inc. (now the Brady Campaign), started a coalition with several big-city mayors in 1998 that was focused on crafting lawsuits to bankrupt gun companies. Ed Rendell, Philadelphia’s mayor at the time, explained that the suits were intentionally designed to: 1) prevent consolidation, which meant that the defendant would need to retain lawyers for each case, 2) specifically target handgun manufacturers that were smaller than long-gun and ammunition companies, and 3) they would make claims designed to expand existing case law and set precedent that would open up more avenues of attack.
Virtually none of these lawsuits went to trial, but that wasn’t the point. The goal was to impose a financial burden on gun companies and drive them out of business. Or, in the case of Smith and Wesson, pressure them to capitulate and submit to a “Manufacture’s Code of Conduct” that would force them to add certain anti-features to make guns “safer” – a goal of the gun control lobby for years.