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Why $73 million Sandy Hook settlement is unlikely to unleash a flood of lawsuits against gun-makers
While the settlement is a notable victory for the families of Sandy Hook’s victims, it’s still unclear if it’s a game changer for gun control advocates.
Families of the victims of the 2012 shooting at Sandy Hook Elementary School reached a historic US$73 million settlement with gun-maker Remington Arms. The Feb. 15, 2022, deal marks the first time a firearms manufacturer has settled a lawsuit brought by gun violence victims since Congress granted the industry sweeping immunity from civil liability in 2005.
Since it was filed in 2015 in Connecticut, the Sandy Hook case has focused media attention on claims that the firearms industry bears some responsibility for the epidemic of gun violence in the U.S. As part of the settlement, Remington agreed to release thousands of pages of internal company documents about its marketing strategy for the semiautomatic rifle used in the massacre. The Sandy Hook families hope that these will provide clues as to how manufacturers can reduce the criminal misuse of their weapons.
Prior to the settlement, some media reports suggested the case could unleash a flood of litigation or significantly change the landscape of lawsuits against the gun industry. However, as a legal scholar who has studied the history of lawsuits against the gun industry, I believe that’s unlikely.
To see why, we need to first review the federal liability shield protecting gun-makers at the heart of the case.
That law, known as the Protection of Lawful Commerce in Arms Act, grants gun manufacturers immunity from lawsuits that arise out of the criminal misuse of a weapon.
But the Sandy Hook families argued that their lawsuit fell under an exception to this federal immunity. The exception allows gun violence victims to sue a manufacturer who “knowingly violated a state or federal statute applicable to the sale or marketing” of a firearm.
The families claimed that Remington Arms “marketed, advertised and promoted the Bushmaster XM15-E2S for civilians to use to carry out offensive, military style combat missions against their perceived enemies.” They said that this marketing was unethical and therefore violated Connecticut’s Unfair Trade Practices Act, which they argued is a state statute applicable to the marketing of a firearm.
The Connecticut high court agreed and, importantly, interpreted the term “applicable” broadly. That is, the court said that a relevant statute only had to be “capable of being applied” to gun sales, not that the law needed to be specifically about firearms, as other courts had held.
It is this interpretation that could potentially prompt a flood of lawsuits across the country.
Since many states have unfair trade practices laws like Connecticut’s, it seems likely that gun violence victims will bring similar claims elsewhere. Victims are thus likely to allege that a gun manufacturer’s aggressive marketing of combat-style weapons violates a state statute – like an unfair trade practice law – that is applicable to the sale or marketing of a firearm.
However, the U.S. Supreme Court has the last word on the interpretation of federal statutes, and the justices refused in 2019 to hear Remington’s appeal of the case. Presumably, the Supreme Court wanted to wait until the litigation had run its course in the Connecticut state courts before weighing in.
Now that the case has settled, it will never reach the high court – which means the scope of the exception to federal immunity based on a violation of state unfair trade practices law remains unclear.
To many, it seems absurd to hold gun-makers liable for marketing a legal product that did precisely what it was designed to do.
Although the Second Amendment undoubtedly imposes restrictions on the civil liability of gun manufacturers, the idea of holding them liable for carelessness is actually not so far-fetched.
The ultimate goal of litigants in lawsuits against the gun industry is to use civil liability to encourage companies to look for ways to make their products less susceptible to criminal misuse and to prevent the diversion of their products into illegal markets.
This is essentially the tactic being used by states, local governments, tribes and others suing pharmaceutical companies over their role in America’s opioid epidemic. After two decades of litigation, claimants are winning jury verdicts in state courts around the country, and the industry is attempting to negotiate a $26 billion dollar global settlement for federal cases.
But while drugmakers aren’t protected from such lawsuits, gun-makers are – thanks to Congress. That means using civil litigation to regulate the gun industry will require either a repeal of the 2005 law, which seems unlikely, or finding a way around it.
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The Sandy Hook settlement leaves unanswered the scope of the federal immunity shield, which thwarted all prior attempts to hold gun manufacturers responsible for the criminal misuse of their weapons. What’s more, Remington’s reasons for agreeing to settle may have more to do with the company’s struggle to reemerge from bankruptcy than a newfound willingness among gun-makers to settle claims.
While the settlement is a notable victory for the families of Sandy Hook’s victims, it’s still unclear if it’s a game changer for gun control advocates.
This article incorporates background from articles published on June 21, 2016, and March 25, 2019.
Inside the campaign to abolish the subminimum wage in 25 states by 2026
"This is the only future for the service sector and the economy overall: wages must go up or there will be no future.”
As the economy recovers from a global pandemic, many business owners are pointing to labor shortages caused by the “Great Resignation” as a source of frustration.
The term refers to the more than 33 million U.S. workers who have quit their jobs since the spring of 2021, largely due to low wages and burnout. The restaurant and service industry is experiencing one of the largest shockwaves to its workforce, adding just 108,000 jobs in January 2022, and remains 900,000 jobs short of where it was prior to the pandemic, according to the Bureau of Labor Statistics.
But restaurant workers and their allies are offering a different perspective: This is not a “Great Resignation,” but rather a Great Rejection of low-wage work.
On Valentine’s Day, 2022, One Fair Wage – a national coalition organized around the movement to increase wages for service workers – announced it is embarking on a $25 million campaign to remove the subminimum tipped wage in 25 states by 2026, marking the 250th anniversary of U.S. independence.
“Typically Valentine’s Day is the highest-grossing day in the restaurant industry, but this year the restaurant industry is struggling,” said Saru Jayamaran, President of One Fair Wage, during a virtual event. “Not because of Covid-19 and the decline of business and sales, but because this is the worst staffing crisis in the history of this industry in the U.S. […] One million workers have left the industry, and of those who remain, 54 percent say they are leaving, and 80 percent say that the only thing that would make them stay or come back is a full, livable wage with tips on top.”
According to Jayamaran, the breaking point came when pandemic conditions required restaurant workers to do so much more for so much less – enforcing masks and Covid-19 vaccination requirements on the same people for whom they rely on for tips. Learn more Racial equity & the tipped wage
In 43 states and on the federal level, tipped workers are paid as little as $2.13 per hour in direct wages, with tips making up the balance of the federal minimum wage, which remains stagnant at $7.25 per hour. Ending the subminimum wage for tipped workers, recent analysis from the Center for American Progress suggests, would help alleviate poverty, sustainably grow the economy, and advance gender, racial, disability, and economic justice.
Ending the subminimum wage would also abolish a shameful relic of slavery. Tipping became prevalent in the United States after the Civil War, when restaurants and railway companies embraced the practice because it meant they didn’t have to pay wages to recently freed slaves. The racial biases that created the practice of tipping are still prevalent in the industry today.
Although Black workers represent the majority of the tipped service industry, they are also the ones making the least. A survey by One Fair Wage found that prior to the pandemic, Black tipped workers’ income, including tips, was already substantially lower than their white counterparts’ earnings, with 60 percent of them reporting earning less than $15 per hour, compared to 43 percent of white workers. Since the pandemic, 88 percent of Black tipped workers, compared to just 68 percent of all workers surveyed, have seen their tips plunge by half or more.
Ending the subminimum wage would not just benefit workers, but employers as well.
“It’s not rocket science,” said Russell Jackson, a supporter of One Fair Wage and the head chef and owner of Reverence NYC in Harlem. “For us, we pay a living wage, we have a fair tip share, and we think about how we treat our staff. […] What we need is legislation with teeth that will help us to be consistent across the board.”
Progress has already been made in Washington, D.C., where organizers recently gathered enough signatures to place an initiative to phase out the tipped wage back on the ballot. Similar legislation is making its way through the state houses in Michigan, New York, and Massachusetts, among others. If they are successful, they will join the seven states that have already eliminated the subminimum wage for tipped workers.
On the federal level, the House passed legislation in 2021 that would eliminate the subminimum wage and boost the federal minimum to $15 by 2025, but that bill has stalled in the Senate.
“It’s time for states—and the policymakers who represent them—to follow the lead of millions of workers refusing to work for poverty wages and thousands of independent restaurants raising wages to recruit staff, and permanently raise wages and end subminimum wages once and for all,” said Jayaraman. “This is the only future for the service sector and the economy overall: wages must go up or there will be no future.”
