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Gunmaker Remington offers $33M settlement to Sandy Hook families, the latest step in yearslong legal battle

USA TODAY logo USA TODAY 8/15/2021 Christine Fernando, USA TODAY
a man wearing a uniform and holding a gun: Firearms training unit Detective Barbara Mattson of the Connecticut State Police displays a Bushmaster AR-15 rifle, produced by Remington Arms and the same make and model of gun used by Adam Lanza in the Sandy Hook School shooting. © Jessica Hill, AP Firearms training unit Detective Barbara Mattson of the Connecticut State Police displays a Bushmaster AR-15 rifle, produced by Remington Arms and the same make and model of gun used by Adam Lanza in the Sandy Hook School shooting.

After a seven-year legal battle, the maker of the rifle used in the Sandy Hook Elementary School massacre has offered the victims’ families nearly $33 million in a possible settlement for a lawsuit over the company’s marketing of the gun.

The nine families suing Remington Arms are discussing the proposals with their lawyers, said Joshua Koskoff, lead attorney representing the families. Koskoff called the offer "grossly inadequate" but declined further comment. Each family would receive $3.7 million.

Remington’s Bushmaster AR-15-style rifle was used to kill 20 first graders and six teachers in 2012 at the elementary school in Newtown, Connecticut.

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The suit could shatter long-held perceptions surrounding gunmakers' ability to resist lawsuits related to criminal use of guns they make, experts told USA TODAY. Regardless of outcome, they said, the case may offer the public a rare glimpse into how a major gunmaker markets its products and could shift national conversations about gun violence to center on the marketing of guns.

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Timothy Lytton, a law professor at Georgia State University College of Law, said the shift may have already begun. A federal judge in early August ruled it wouldn't stand in the way of the New Jersey Attorney General's Office's efforts to investigate the marketing practices of gun manufacturer Smith and Wesson. The Mexican government recently filed a lawsuit against several U.S. gunmakers, accusing them of reckless business practices including improper marketing.

"We’re already seeing the Sandy Hook case as a front-runner in this new push to examine the marketing of guns," said Lytton, author of the book "Suing the Gun Industry."

"To see if this will be part of a greater movement, we’ll have to wait and see."

What does the lawsuit allege?

Family members of nine victims of the Sandy Hook shooting say Remington violated Connecticut’s unfair trade practices law when it “knowingly marketed and promoted the Bushmaster XM15-E2S rifle for use in assaults against human beings,” according to the lawsuit.

They say Remington’s marketing emphasized how the gun was “designed for military combat, specifically to inflict maximum lethal harm on the enemy” and touted that it was a “combat-tested weapon that would bestow the power to ‘perform under pressure’ and ‘single-handedly’ conquer ‘forces of opposition.’”

"The marketing essentially glorifies violence and the military use of the weapon to young men," Koskoff said.

The lawsuit alleges Remington’s marketing of the gun "inspired the killer’s actions and encouraged him to choose a weapon that would maximize the mayhem he could inflict."

Remington’s lawyers have denied the allegations in court and argued that there is no evidence to show Remington’s marketing had anything to do with the shooting. Remington did not respond to multiple USA TODAY requests for comment.

The lawsuit tests the scope of the 2005 Protection of Lawful Commerce in Arms Act, which grants gun manufacturers immunity from lawsuits stemming from crimes committed with their products, said David Pucino, senior staff attorney at Giffords Law Center to Prevent Gun Violence.

The Sandy Hook families argue their case falls under an exception to the arms commerce act that allows lawsuits against manufacturers who knowingly violated a state or federal statute applicable to the sale or marketing of its product, Pucino said. In this case, he said, the families argue Remington’s marketing violated Connecticut’s unfair trade practices law.

The case has already taken multiple turns, bouncing from a state superior court to the state Supreme Court and back. It has also weathered Remington’s bankruptcy proceedings, which temporarily delayed lawsuits against the company, as well as what lawyers of the plaintiffs called “a series of delay tactics.

The lawsuit was pulled back into the national spotlight in July when Remington, in response for requests for documents, turned over a cache of seemingly unrelated files, including over 18,000 random cartoons, 15,000 images of people go-karting and riding dirt bikes, and 1,500 videos of gender reveal parties and ice bucket challenges. Lawyers of the families filed a complaint in response. 

‘An uphill climb’ for shooting victims

It has become difficult for victims of shootings to sue gun manufacturers, and few cases have made much headway in the years since the arms commerce act passed, law experts said.

David Kopel, adjunct scholar at the Cato Institute, a libertarian think tank in Washington, said the Sandy Hook families face a difficult task of proving the gunman saw and was influenced by Remington’s marketing practices, especially because he stole the gun from mother rather than purchasing it himself.

“This is a real uphill battle for the plaintiffs,” Kopel said. “But none of us have really seen the evidence, and the case is still in its discovery phase, so at this point, we'll really just have to see.”

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Koskoff said it has always been difficult to sue a gunmaker because of the Protection of Lawful Commerce in Arms Act, which he called "a shield from responsibility" for gun manufacturers.

"For years, the perception was PLCAA made the gun industry bulletproof, that it's not just difficult to sue a gun industry but impossible," Koskoff said. "If our case stands for anything, (it) is that this immunity, while it presents significant hurdles, doesn't eliminate all causes of action."

Georgia State's Lytton said questions have emerged over what “applicable” means and whether the statute must be specifically about firearms or whether general statutes would work. He said that if the families win their case, the case probably will head to the Supreme Court, which will confront that question.

If the Supreme Court allows for a broad interpretation of the word “applicable,” Lytton said, the gun industry may be the target of more lawsuits as the floodgates open for similar litigation.

Why is this such a landmark lawsuit?

Very few cases against the gun industry have been successful since the Protection of Lawful Commerce in Arms Act, Lytton said.

He said there have been some cases against retail stores that have succeeded, including when a jury found in 2015 that a Wisconsin gun shop negligently sold a gun used to injure two Milwaukee police officers. But there has been no successful case against a gun manufacturer, he said.

“The case is notable nationally because it's one of the few cases where the courts have allowed the claim to go forward under an exception to the federal immunity bill,” Lytton said. “The case going into discovery is much farther than most of these cases get.”

To his knowledge, Pucino added, this is the first case that tests this particular example to PLCAA and centers on marketing practices.

The trove of documents requested during litigation could have effects similar to when the tobacco industry was forced to disclose millions of pages of internal communications revealing deceptive marketing practices in the 1990s, Pucino said.

"We learned through litigation just how deceptive the tobacco industry was," Pucino said. “I think there is a possibility we might have a similar moment here, where we are for the first time going to see the internal discussions behind this advertising. My hope is it will get the industry to wake up and to start making these important changes."

While it’s important not to assume the documents will reveal deceptive practices, this rare opportunity to examine a gun manufacturer’s marketing methods may be useful in efforts to regulate the firearms industry and address gun violence, Lytton said.

"This case frames the problem of gun violence as not a problem with certain criminal shooters,” Lytton said. “It looks at the contribution of firearms manufacturers' marketing, sales and distribution practices as a possible source of the gun violence problem. We usually regulate firearms at the point of sale, and now we're talking about backing up and thinking more about firearms problems originating from the manufacturers and the distribution chain."

He added, "Even if the plaintiffs lose, this may change the way we talk about gun violence policy."

"During a bankruptcy, everything is frozen,' Koskoff said. "It added over a year to this process."

Contributing: The Associated Press

Contact News Now Reporter Christine Fernando at cfernando@usatoday.com or follow her on Twitter at @christinetfern.

This article originally appeared on USA TODAY: Gunmaker Remington offers $33M settlement to Sandy Hook families, the latest step in yearslong legal battle

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