Can Class Actions Solve the Gun Defects Problem?

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By Martina Barash

April 12 — Defects in firearms, an inherently dangerous product, have led to deaths and injuries—but no agency has the authority to force a recall.

Other than voluntary recalls by gunmakers, class actions are currently the only tool available to get defective firearms off the market, attorneys and advocates for the suits tell Bloomberg BNA in recent interviews.

Two pending class action settlements—one involving Remington rifles, a second involving handguns made by a Brazilian maker—involve replacing the defective mechanism or the gun itself as one part of the remedy.

But such gun-safety class actions are rare. A plaintiffs' attorney says he's unaware of any others that are underway.

And an anti-violence advocate remembers only one in the past, against Glock Inc. and its parent company (Spence v. Glock, Ges.m.b.h., 227 F.3d 308 (5th Cir. 2000). In that case, class certification was reversed on appeal.

Meanwhile, some legal observers have criticized the use of litigation for an essentially regulatory purpose.

The number of deaths and injuries attributable to gun defects is unknown .

Voluntary Recalls

Gun manufacturers can and do conduct voluntary recalls. The Violence Policy Center, which advocates for firearms regulation, lists 45 gun safety alerts and recalls by 13 manufacturers on its website.

But a manufacturer may not agree that such an action is necessary. One of the current class actions, a suit against Brazilian gunmaker Forjas Taurus, alleges the company's PT140 Millenium pistol and similar models can fire when dropped and may even fire when the manual safety lever is switched to the “safe” position.

But before agreeing to settle the case, “Taurus had denied the safety problem exists,” the plaintiff's attorney, David L. Selby II, told Bloomberg BNA. “Up until Taurus agreed to this settlement, an owner would have had to show their gun was defective.”

‘Class Action or Nothing.'

F. Paul Bland Jr., executive director of Public Justice, a plaintiffs' firm, called the Taurus drop-fire situation “a class action or nothing,” particularly because the problem isn't self-evident.

VPC Legislative Director Kristen Rand agreed. “If a gun’s defective, there’s no entity that has authority either to issue a recall or to force manufacturers to address the hazard, so the only mechanism is lawsuits,” she told Bloomberg BNA.

But “gun owners are very reticent to pursue lawsuits,” she said.

Bland has argued against H.R. 1927, a “no-injury” class-action bill. Opponents of the measure say it could curtail suits where not all class members have yet experienced a defect . “That bill would prevent this case,” he said.

The National Shooting Sports Foundation, which represents the gun industry, declined to comment on the issue of class actions but referred Bloomberg BNA to Victor Schwartz of Shook Hardy & Bacon.

Schwartz, a longtime advocate of tort reform, argues against the use of litigation to do agencies' work. “Robert Reich, who was President Clinton’s Secretary of Labor, put a label on this kind of thing, that he called ‘regulation through litigation,’ ” Schwartz told Bloomberg BNA.

People who favor that use of litigation say that if “in their view there’s a public need,” but the regulatory bodies don’t have authority, then members of the public should “use the liability system to fulfill that need,” he said.

Schwartz, who disagrees, concurs with Reich that “the tort system should not be used as a substitute for a regulatory body.”

“There are very legitimate thinkers on both sides,” he said.

The use of class actions to force a gun recall “would be a prime example of regulation through litigation,” Schwartz said. “And it doesn’t mean that I’m casting aspersions on it. It just means that I’m defining what it is.”

“The Reich position is that if you cannot get the regulation through the legislature, or you cannot get legislation to do what you want through the legislature, that’s the end of it,” Schwartz said.

“And that’s our democratic process, however weak it is. Nobody elects a tort czar,” the tort system is “not something that’s voted upon by the public, and tort law shouldn’t be used for that purpose,” he said.

Notice Issues in Taurus, Remington Deals

The pending class settlements carry provisions that resemble recalls.

The Taurus settlement provides an “enhanced warranty” for the life of the pistol. Although the warranty envisions a repair or a replacement, Bland said the remedy will essentially be a replacement gun, since the trigger mechanism can't be repaired.

The Taurus deal also offers class members the option of a cash payment for the return of a pistol.

Judge Patricia A. Seitz of the U.S. District Court for the Southern District of Florida granted preliminary approval in July 2015 (Carter v. Forjas Taurus S.A., S.D. Fla., No. 1:13-cv-24583, preliminary settlement approval granted 7/30/15).

In the other class action, a plaintiff sued Remington Arms Co. over allegedly defective triggers in its popular Model 700 Bolt Action rifles in the U.S. District Court for the Western District of Missouri (, W.D. Mo., No. 4:13-cv-00086, settlement preliminarily approved 4/14/15).

Under the proposed settlement, class members would be entitled to a replacement of the trigger mechanism, a voucher for other Remington products and/or a refund of money they already spent on a new trigger mechanism, according to a notice on the Remington website.

The courts overseeing the settlements are trying to achieve good response rates. Issues with the sufficiency of class notice have delayed both settlements, though the Taurus deal may be completed this summer.

Seitz said at a hearing in January that she would deny objections to the settlement that had already been filed, according to Selby, the plaintiff's attorney.

But Seitz delayed final approval, asking that class members receive more information about replacement guns, Selby said.

Seitz approved the new notice plan Feb. 1, he said, and a hearing on final approval is scheduled for July 18, 2016.

The Remington case has also run into delays over notice. The court postponed the final settlement hearing because, it said Dec. 8, only 2,327 claim forms have been submitted in the suit, which could count millions of firearms owners as class members .

The court ordered the parties to develop a notice plan to achieve “a more significant response rate.”

“The Court cannot conceive that an owner of an allegedly defective firearm would not seek the remedy being provided pursuant to the Settlement Agreement,” the court said in its order.

Supplemental briefing is underway and no date has been set for the final settlement hearing.

Attempts to reach Taurus and Remington weren't successful.

To contact the reporter on this story: Martina S. Barash in Washington at mbarash@bna.com

To contact the editors responsible for this story: Steven Patrick at spatrick@bna.com and Jeffrey D. Koelemay at jkoelemay@bna.com