Expect More Lawsuits Against Gun Manufacturers Based on Their Ads and Marketing

Gun ads and marketing killed their children. That’s what survivors and relatives of the Sandy Hook massacre allege and that was what SCOTUS let stand recently — opening up gun manufacturers to the possibility of multiple lawsuits that could have those brands revisiting their advertising and marketing strategies soon, too.

By denying hearing a case brought by survivors and relatives of a 2012 mass shooting at an elementary school, in which a gunman using a Bushmaster XM15-E2S rifle killed 20 first-grade students and six school employees, the Supreme Court of the United States may have provided a window for lawsuits against gun manufacturers, in general. However, the lawsuit does need to return to the lower court first, where a judge ordered both parties to appear on Dec. 4. (More on what that means about revealing internal marketing conversations is in the second subhead.)

SCOTUS’ Nov. 12 denial to hear Remington Arms Co. vs. Soto was the result of the plaintiff’s long path to the highest court in the land. And many courts along the way rejected various aspects of the plaintiffs’ argument against Remington, ultimately helping narrow the focus of the case to the one aspect of law related to the plaintiffs’ assertion that Remington Arms Co. — manufacturer of the Bushmaster rifle used in the attack — violated the law by advertising and marketing a military-style assault rifle to a civilian.

As of Friday, Remington’s site and its Twitter account didn’t mention the case.

The Remington Case

As Connecticut judges opined in March 2019:

[Gunman Adam] Lanza carried out the Sandy Hook massacre using a Bushmaster XM15-E2S rifle. That rifle is Remington's version of the AR-15 assault rifle, which is substantially similar to the standard issue M16 military service rifle used by the United States Army and other nations' armed forces, but fires only in semiautomatic mode.

The plaintiffs next have to prove that it was foreseeable that the advertising led to the shooting.

According to the Connecticut court, plaintiffs cite specific marketing and advertising from Remington that targeted “its assault rifles to young men who play violent, first-person shooter video games and who, as a class, have a history of using such rifles in real mass shootings.”

Plaintiffs allege Remington’s marketing and advertising:

• promoted use of the XM15-E2S for offensive, assaultive purposes — specifically, for "waging war and killing human beings" — and not solely for self-defense, hunting, target practice, collection, or other legitimate civilian firearm uses
• extolled the militaristic qualities of the XM15-E2S
• advertised the XM15-E2S as a weapon that allows a single individual to force his multiple opponents to "bow down"
• marketed and promoted the sale of the XM15-E2S with the expectation and intent that it would be transferred to family members and other unscreened, unsafe users after its purchase.

The Connecticut court says:

The plaintiffs have offered one narrow legal theory, however, that is recognized under established Connecticut law. Specifically, they allege that the defendants' knowingly marketed, advertised, and promoted the XM15-E2S for civilians to use to carry out offensive, military style combat missions against their perceived enemies. Such use of the XM15-E2S, or any weapon for that matter, would be illegal, and Connecticut law does not permit advertisements that promote or encourage violent, criminal behavior. Following a scrupulous review of the text and legislative history of PLCAA, we also conclude that Congress has not clearly manifested an intent to extinguish the traditional authority of our legislature and our courts to protect the people of Connecticut from the pernicious practices alleged in the present case. The regulation of advertising that threatens the public's health, safety, and morals has long been considered a core exercise of the states' police powers. Accordingly, on the basis of that limited theory, we conclude that the plaintiffs have pleaded allegations sufficient to survive a motion to strike and are entitled to have the opportunity to prove their wrongful marketing allegations.

Revealing Internal Marketing Memos

Marketing and advertising can make or break a brand. For instance, revealing internal marketing memos wasn’t good news for the tobacco industry.

It’s possible this lawsuit will have a huge impact on gun manufacturers, too; even if it does only take aim at Remington’s marketing strategy. And that strategy may soon be under the microscope.

What Remington did by asking SCOTUS to hear the case when it did was open itself up for “discovery.” That means the Connecticut court that is taking a closer look at this case, beginning on Dec. 4, may demand that the gun manufacturer open up its marketing and advertising practices for public perusal.

The Hartford Courant quotes Josh Koskoff, a lawyer for the families, on Nov. 12:

“We are ready to resume discovery and proceed towards trial in order to shed light on Remington’s profit-driven strategy to expand the AR-15 market and court high-risk users at the expense of Americans’ safety.”

Remington’s attorneys had been fighting discovery of some documents before the case got put on hold during the SCOTUS appeal.

“As we were getting our toes in the water with discovery, everything stopped," Koskoff said. “We are at the very dawn of discovery for this case.”

Koskoff told the Courant he anticipates Remington trying to keep internal documents sealed from public view — something that the families will want to fight.

The article quotes Koskoff:

“The M.O. of any big industry is to reveal as little as possible,” he said. “But in many ways the goal of this lawsuit is to shed light on those documents, so the families can see how the gun used in this shooting was marketed. So we will do everything we can to insure that this is a transparent process.”

The Courant later attributes Heidi Li Feldman, a professor at the Georgetown University Law Center, as saying:

Remington took a chance trying to get the case before the U.S. Supreme Court and now will have to go forward with a case they really want no part of.

“It’s really bad news for Remington because now they will have to go through the discovery process,” Feldman said.

What do you think, marketers?

Please respond in the comments section below.