Lawyers for families of those killed in the mass shooting say they are moving “full-steam ahead” after the company did not allow for full access to its internal documents.
From the outset, legal experts said the case faced long odds, running headfirst into barriers that are built into federal law and protect gun companies from most litigation.
The case, brought by the families of those killed in the massacre at Sandy Hook Elementary School in Connecticut, seeks to hold responsible the companies that made and sold the weapon used in the attack, in part by unearthing documents they hoped would reveal the gun industry’s inner workings.
The families acknowledged the hurdles they faced, but saw the lawsuit as a gamble worth taking.
Now, after winding through the courts for nearly seven years, the suit has yielded an offer: Remington, which made the AR-15-style Bushmaster that was used in the 2012 attack, has proposed settling with the families for $33 million as a trial date looms.
The company’s offer underscores the viability of the novel strategy the families have adopted to pierce the legal shield that guards gun makers, offering a potential road map to the survivors and relatives of victims involved in other mass shootings.
The Sandy Hook plaintiffs are considering the offer, which includes $3.66 million apiece for each of the nine families who are pursuing the suit. But a lawyer for the families, Joshua D. Koskoff, added that his clients were still moving “full-steam ahead” toward trial.
The families have long said that they want a jury to see the company’s behind-the-scenes communications, including, possibly, those in which they outline plans for marketing the weapon — a central component of the suit.
“One glaring inadequacy about the offer, among many,” Mr. Koskoff said, “is that it doesn’t contain a provision for full access to all documents.” Any agreement would have to include that access, he added.
Lawyers for Remington, which is in bankruptcy, declined to comment on the offer. The company has previously argued that the claims raised by the families fall squarely within the protections provided by federal law, which the gun industry’s supporters described as a critical defense against predatory or politically driven lawsuits.
Remington’s lawyers have said the families are trying to obtain internal company documents without any justification to do so. In one recent court filing, the lawyers said the families’ suit did not contain any evidence that the gunman “even saw Remington’s advertisements — much less was inspired by them to commit mass murder.”
The case is being watched closely as the United States continues to be gripped by the anguish stirred by recurring mass shootings and the political rancor surrounding the ownership and use of guns. And the interest has only intensified through the many legal twists and turns the case has endured, surviving far longer than other litigation brought after a mass shooting.
The families argue that Remington marketed the assault rifle in a way that was meant to appeal to troubled young men like the 20-year-old who stormed into the elementary school in Newtown, Conn., killing 20 first graders and six adults in a spray of gunfire that saw 154 rounds fired off in under five minutes.
The suit seizes on an exception built into federal law that allows for litigation over sales and marketing practices that violate state or federal laws. The families contend that Remington’s practices violated a Connecticut consumer law that prohibited businesses from marketing or promoting their products in a way that encouraged illegal behavior.
The families’ lawyers have described how the Bushmaster was portrayed as a weapon of war with slogans and product placement in video games that invoked combat violence. The marketing of the rifle also employed hypermasculine themes, including an advertisement with a photograph of the weapon that said, “Consider your man card reissued.”
“Since this case was filed in 2014, the families’ focus has been on preventing the next Sandy Hook,” Mr. Koskoff said. “An important part of that goal has been showing banks and insurers that companies that sell assault weapons to civilians are fraught with financial risk.”
In 2005, Congress passed the Protection of Lawful Commerce in Arms Act, which blocks lawsuits by providing industrywide immunity from blame when a gun company’s product is used in a crime.
But the law has attracted fresh scrutiny after several shootings this past spring — including one at a Colorado grocery store where 10 people were killed and a spree in which eight people were killed in massage parlors in and around Atlanta — reinvigorated the efforts of activists pushing for more restrictions on guns.
In April, President Biden said he would like to scrap those protections. State lawmakers in New York passed legislation in June that would classify the illegal or improper marketing or sale of guns as a nuisance, a technical distinction that supporters said would make it easier to sue gun companies. The measure is the first of its kind in the nation.
“The only industry in the United States of America immune from lawsuits are the gun manufacturers, but we will not stand for that any longer,” Gov. Andrew M. Cuomo of New York, a Democrat, said as he announced the signing of the legislation.
But the gun industry has fought fiercely to protect that immunity.
A state court judge in Connecticut, Barbara N. Bellis, dismissed the Sandy Hook case in 2016, siding with Remington’s argument that the immunity applied to the claims raised by the families.
But the Connecticut Supreme Court, ruling on an appeal, said in 2019 that the suit could proceed because the sweeping federal protections did not prevent the families from bringing litigation based on wrongful marketing claims.
With the case moving toward trial — jury selection is scheduled to begin in September 2022 — legal experts said Remington’s $33 million offer reflected an effort to end the case without having to divulge its internal documents.
“Once again, meaningful discovery is imminent,” said Heidi Li Feldman, a professor at Georgetown Law, referring to the process the families hope to use to pry open the industry and learn about its operations.
“Every time that happens, defendants do something momentous to prevent it,” Professor Feldman said. “This makes me think that they’re pretty desperate not to let any materials related to marketing come to light.”
Lawyers for the families filed a motion this month complaining that Remington was not giving them the documents they wanted. “Remington refuses to comply with their discovery obligations,” the lawyers said in the filing.
The case attracted some attention recently for what Remington did hand over: a bizarre, seemingly irrelevant collection of thousands of images that included videos of gender reveal parties and an ice-bucket challenge, an emoji of a farmer with a pitchfork and a cartoon of a character from children’s movie “Despicable Me” being sliced like a steak with the caption “filet minion.”
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