Remington Outdoor Company’s insurers have agreed to pay $73 million to families of some victims of the 2012 Sandy Hook school shooting. Never before has a gun company agreed to such a payout. Gun control advocates are energized. They see it as an example of how to take down, or at least radically transform, the gun industry through litigation. For them, it represents the first step in a legal crusade they directly compare to the successful suits filed against Big Tobacco in the 1990s.
“Before we brought this case, gunmakers thought they could not be held accountable for mass shootings,” Alinor Sterling, a lawyer for the plaintiffs, said in a statement. “This case shows they can be.”
Gun control advocates argue the case puts the entire industry on notice and sets forth a playbook they can repeat. “This victory should serve as a wake-up call not only to the gun industry, but also the insurance and banking companies that prop it up,” Josh Koskoff, lead counsel for the plaintiffs, said. “Our hope is that this victory will be the first boulder in the avalanche that forces that change.”
But the reality is fuzzier than that. The case began in 2015 when the plaintiffs argued Remington was liable for the murder of 20 children and six adults at the hands of a single shooter because that shooter had used an AR-15 made by one of Remington’s subsidiaries. They put forth three arguments for why the company was liable. Two centered on the idea that selling the AR-15, which they deemed a “weapon of war,” to civilians was irresponsible.
“The Sandy Hook victims were slain in a commando-style assault on the school,” plaintiffs said in one court filing. “Their killer’s weapon of choice was a Bushmaster XM15-E2S rifle, manufactured and marketed by petitioners. The XM15-E2S was designed for military combat, specifically to inflict maximum lethal harm on the enemy.”
The other argument focused on the idea that Remington’s advertising violated Connecticut law. They accused the company of promoting the use of its products to unstable young men for offensive military action against their perceived enemies. “Marketing weapons of war directly to young people known to have a strong fascination with firearms is reckless and, as too many families know, deadly conduct,” Nicole Hockley, whose son Dylan was killed during the shooting, said in a statement after the settlement. “Using marketing to convey that a person is more powerful or more masculine by using a particular type or brand of firearm is deeply irresponsible.”
The case wound its way through the Connecticut court system over the next four years until the state’s Supreme Court tossed the first two arguments but allowed the last one to proceed. Remington appealed that decision to the U.S. Supreme Court. But the justices declined to intervene without explanation.
As the case proceeded to discovery in 2020, Remington Outdoor Company filed for bankruptcy. The case was paused as the company’s operations were sold off. Once that process ended, the defunct gun company’s insurers ultimately took over strategy for the case.
The insurers tried to settle a few months later at a lower price before eventually caving and agreeing to pay out the full value of the policies. They also agreed to the release of piles of documents from the defunct company.
Koskoff argues this all sends the message that gun companies and the financial institutions that work with them should be fearful of what’s to come. “For the gun industry, it’s time to stop recklessly marketing all guns to all people for all uses and instead ask how marketing can lower risk rather than court it,” he said. “For the insurance and banking industries, it’s time to recognize the financial cost of underwriting companies that elevate profit by escalating risk.”
The settlement is sending shock waves through the industry. The arguments Koskoff made in court about the AR-15 being unfit for civilian use (despite it being the most popular rifle in the country) suggest the case was about far more than merely pushing the industry into a different advertising strategy. But industry worries are mostly because the settlement creates an impression these sorts of cases will work, not because any actual legal precedent was set. This is, of course, the whole point of an out-of-court settlement, to avoid admitting liability and setting legal precedents.
The connection between Remington’s advertising and the shooting was never tested in court and borders on frivolous. The plaintiffs argued that ads implying buying an AR would “re-issue” an owner’s “man card” or its placement in video games contributed to the attack. However, they offered no evidence the shooter ever even saw this advertising, and he wasn’t the one who purchased the gun in the first place.
The Connecticut Supreme Court summed up the difficulty of proving the case on the merits even as it allowed it to move forward. “The plaintiffs allege that the defendants’ wrongful advertising magnified the lethality of the Sandy Hook massacre by inspiring [the shooter] or causing him to select a more efficiently deadly weapon for his attack,” the court said in its ruling. “Proving such a causal link at trial may prove to be a Herculean task.”
That the insurers seemed very eager to settle once Remington was defunct is perplexing. Plaintiffs argue this is because the case was stronger than skeptics had long said, but it may have more to do with how risk-averse the insurers are. Once Remington went away as a company, so did several of the reasons to keep fighting. The insurers had no incentive to avoid encouraging future suits against a defunct company and little reason to avoid encouraging them against the gun industry. They did have incentive to avoid making an even bigger payout than the one they ended up agreeing to.
Recent judgments in mass shooting cases out of Texas and Florida have reached well into nine figures. The insurers must have taken the potential cost of a major judgment, factored in the chance they’d lose on the merits, and then added that to the estimated cost of continuing to fight the case for several more years. Apparently, that number was more than $73 million. So, they settled.
It’s still hard to understand that calculus even with the politics of the case stripped away. Even if the case had gone against them on the merits in Connecticut court, the Supreme Court could have stepped in. It’s difficult to imagine the current makeup of the Supreme Court agreeing the case holds up on the merits or, even further, isn’t foreclosed by federal liability protections afforded under the Protection of Lawful Commerce in Arms Act.
But the case had already gotten further than most observers assumed it would. The Supreme Court had already declined to step in once. The insurers just didn’t want to take the risk.
So, where does that leave things? If the payout was agreed to by insurers, not gun company leaders, and it’s an out-of-court settlement, not a legal precedent, does it have any broader effect on guns in America? Probably, yes.
The first consequence was to one of the oldest gun companies in America. Remington’s bankruptcy was brought on by many factors. The company was saddled with a great deal of debt after it was bought out by a private firm, it suffered a brain drain that led to poor new offerings, and it faced lawsuits over defective products to which PLCAA offered no protection.
However, the lawsuit was another “contributing factor” to the company’s downfall, National Shooting Sports Foundation General Counsel Larry Keane told me. He predicted more suits such as this one will be filed with the backing of major gun control groups. Cases employing dubious arguments to try to hold gun companies liable for the criminal acts of third parties have been happening since the 1990s. The initial round of cases, often backed by city governments, was the inspiration for the PLCAA.
Gun control activists argue the tactic is about trying to “help prevent the next Sandy Hook,” as Koskoff put it. But Keane said the goal is to implement gun restrictions through the courts that activists couldn’t get through the ballot box. “These lawsuits are not about recovering damages,” Keane said. “They are about trying to drive a political message and using litigation to try to regulate the industry. That’s exactly what the [1990s lawsuits] were about. That’s exactly what this case is about.”
The tactic didn’t disappear after the law passed, though. Activists have been working to puncture a hole in the law ever since. The Remington settlement may not have created an actual hole in the law, but the perception it has will likely create even more cases based on it. In fact, the plaintiffs’ lawyers said they’ve started to see the effect in action. “It is already serving as a model for other gun cases across the country,” Sterling said.
The same perception will likely be felt when it comes to insurance rates for gun companies. But, again, here Keane said the settlement merely adds to an ongoing problem rather than creating a new one. “We were already seeing a tightening of the insurance market and banking,” he said. “We increasingly hear companies are having a hard time getting renewals and policies, and to get renewals is way, way more expensive. So, certainly, you’re going to see more of that.”
Ultimately, though, Keane thinks the ruling won’t have the kind of sweeping effect the plaintiffs and many in media have suggested. He said gun control advocates haven’t been able to put a real dent in the PLCAA and have no chance of repealing it. He expects the Remington advertising documents obtained by the plaintiffs won’t reveal anything damaging either.
“I’ll bet my house on that,” he said. “There’s no email saying, ‘How do we market to deranged young men?’ which is what the plaintiffs were alleging.”
He brushed off comparisons to Big Tobacco as well. He said gun control advocates have been comparing their cases against the gun industry to those against the tobacco industry for “literally over a quarter of a century” despite the lack of success in court. “The difference is tobacco, when used as intended, causes harm,” Keane said. “Firearms, when used as designed and intended, save lives. Firearms are not defective. Tobacco, you could argue, is inherently defective in that it can cause cancer. Nobody in the industry is saying guns aren’t dangerous. Nobody in the industry is saying if misused, guns can’t cause harm. And, last time I checked, tobacco was not a constitutionally protected product, whereas firearms are. The analogy breaks down right from the very beginning.”
So, the Remington settlement presents a complicated mix of conclusions. The plaintiffs did not win on the merits or even really argue over them in court. But they did get a huge payout anyway. It leaves serious negative effects for the gun industry in its wake but does little to change the legal status quo or the long-term prospects of firearms makers or dealers.
Stephen Gutowski, founder of the Reload, is an award-winning journalist who reports on firearms policy and politics. He has appeared on the cover of Time, and his work has been featured in every major news publication across the ideological spectrum, from Fox News to the New York Times.
