Family members of those killed in the 2012 Sandy Hook shooting announced a $73 million settlement on Feb. 15 with insurers for the now-bankrupt Remington Arms, manufacturer of the Bushmaster rifle used in the killings. The case centered on allegations that Remington marketed the rifle in a way that encouraged illegal violence.
That settlement comes less than two years after the Connecticut Supreme Court ruled that a formidable federal barrier to such lawsuits, the 2005 Protection of Lawful Commerce in Arms Act (PLCAA), does not immunize manufacturers from claims that wrongful advertising resulted in injury or death.
The Sandy Hook settlement will serve as a significant landmark for at least two reasons. First, the Connecticut Supreme Court’s ruling opens a major hole in PLCAA’s immunity bar, and, with the case settled, that ruling now stands as the last legal word on the case. Second, the large settlement amount is sure to encourage other attempts to hold firearm sellers liable for gun violence.
Predicate Exception
PLCAA provides gun industry actors broad immunity from lawsuits that occur when someone unlawfully misuses firearms. Despite its broad bar, PLCAA contains several exceptions that allow a lawsuit to continue.
The exception that has been subject to the most high-profile litigation, and that was at issue in the Sandy Hook case, is called the “predicate exception.” That exception allows a lawsuit to continue if a plaintiff alleges that the defendant violated a state or federal statute “applicable to the sale or marketing” of a firearm.
Courts have taken differing views of how broadly to read this exception. In the Sandy Hook litigation, the Connecticut Supreme Court held that one of the plaintiffs’ claims survived PLCAA’s bar. That claim alleged that Remington’s marketing of the weapon violated Connecticut’s Unfair Trade Practices Act (CUTPA), which—like many similar state consumer protection statutes—“prohibits as unfair advertising that is, among other things, immoral, unethical, oppressive and unscrupulous.”
The court concluded that CUTPA satisfied the predicate exception because it was “applicable” to the sale or marketing of firearms. The court focused on the statutory language that allows claims predicated on violations of state or federal sales or marketing laws.
Observing that there were no federal laws expressly regulating firearms marketing or advertising when Congress passed PLCAA, the court rejected a narrow reading of the predicate exception that would cabin it to cover only statutes that expressly mention or refer to firearms. And CUTPA, the court emphasized, had been applied to firearms marketing and advertising in prior cases, so its application in this situation was not wholly novel.
To be sure, the court recognized that the plaintiffs’ burden in proving the causal link between the alleged illegal marketing and the resulting harm “may prove to be a Herculean task,” but it underscored that that was not the question before it. The only relevant question was whether the plaintiffs’ allegations of a CUTPA violation were sufficient to bypass PLCAA. And to that question, a majority of the court answered in the affirmative.
Remington subsequently sought review from the U.S. Supreme Court, which declined to hear the case. Because the case is now finished, the Supreme Court ruling in Soto v. Bushmaster represents the final legal ruling on the plaintiffs’ theory of liability. And it paves the way for other plaintiffs in states with similar consumer protection statutes that could qualify as predicate statutes to evade PLCAA’s immunity.
Settlement on These Claims Is Unprecedented
The staggering amount of the settlement is another key fact that makes the settlement legally significant. Since Congress enacted the liability bar in 2005, no gun manufacturers have settled cases with survivors or victims of gun violence raising claims like those here.
In fact, the last major settlement with a gun manufacturer for gun violence claims was 2004—the year before PLCAA was enacted—when Bushmaster agreed to pay $550,000 and a gun store $2 million for claims arising out of the D.C. sniper shootings. The Sandy Hook settlement is about 30 times larger than that, and it joins a growing number of large recoveries in the wake of recent mass shootings.
In the last two years alone, MGM Resorts and its insurers agreed to an $800 million settlement with families and survivors of the 2017 Las Vegas shooting, a federal court found the federal government liable for $230 million in damages for its role in the 2017 Sutherland Springs shooting, and the federal government agreed to pay an $88 million settlement to families and survivors of the 2015 Charleston shooting at Emmanuel AME Church.
These awards are much higher—substantially so in some cases—than the Sandy Hook settlement, but the gun manufacturer defendant is the key difference. Insurers that service the gun industry have no doubt taken note of the Sandy Hook settlement.
For the last 17 years, PLCAA’s immunity shield has been nearly impenetrable. There are signs it may now be weakening. Going forward, the Sandy Hook lawsuit and resulting settlement might well mark a turning point for affirmative lawsuits against gun industry actors.
This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
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Jacob D. Charles is a lecturing fellow and executive director of the Center for Firearms Law at Duke University School of Law. He writes and teaches on the Second Amendment and firearms law. Follow him on Twitter at @JacobCharlesNC.
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