Q&A: The lawyers who reached $73M Sandy Hook settlement with Remington
". . . When you write umbrella policies for gun makers, you are underwriting the risk of a mass shooting."
It’s hard to think of any clients that would garner more sympathy than the group Josh Koskoff and Alinor Sterling of Koskoff, Koskoff & Bieder represent. The nine families they represent all lost loved ones in the 2012 shooting at Sandy Hook Elementary School.
But it’s also hard to think of a defendant more difficult to hold liable than their litigation adversary, the maker of the semi-automatic rifle used in the shooting. Gunmakers enjoy broad immunity under the Protection of Lawful Commerce in Arms Act, a federal law passed by Congress in 2005.
But after more than seven years of litigation, Koskoff and Sterling, working alongside co-counsel handling the case pro bono at Paul, Weiss, Rifkind, Wharton & Garrison, achieved a landmark settlement this week with Remington. The now-bankrupt company’s four insurers agreed to pay $73 million, the full amount of coverage available, to settle plaintiffs claims that Remington’s marketing of the Bushmaster AR-15 violated the Connecticut Unfair Trade Practices Act. As part of the settlement, the plaintiffs can release thousands of pages of internal company documents obtained during the course of the case, something Koskoff and Sterling hope will help hold gunmakers accountable in other cases.
Law.com: Who are your clients and what was at stake/?
Koskoff: Our clients are the families of five children and four adults who were killed in the 2012 Sandy Hook Elementary School shooting. At stake was these families’ effort to prevent future mass shootings. Because they believed a lawsuit could help do that, these nine grieving families were willing to take on a powerful gun conglomerate. At stake was everything I believe in as a lawyer and as a person: that there must be some measure of justice for these families.
Law.com: The federal Protection of Lawful Commerce in Arms Act provides broad immunity to gun makers in federal and state court. How were you able to show that exceptions to the PLCAA applied here?
Sterling: The third of PLCAA’s six exceptions is what’s known as the predicate exception, which denies immunity in the event a manufacturer or seller violates a state law. No one had ever argued that a state unfair trade practices act could be a predicate statute under PLCAA. But unfair trade practices acts often apply to bar unscrupulous corporate conduct like that at issue here. We successfully argued that Connecticut Unfair Trade Practices Act (CUTPA) was a predicate statute for purposes of PLCAA, and that Remington had violated CUTPA by promoting criminal use of the AR-15, targeting a high-risk user, and extolling the military bona fides of the weapon. In the end, that argument won the day.
Law.com: Walk me through high points and low points for you in the history of this case.
Koskoff: The low point of the case was when the case was dismissed by the trial court, (even though the dismissal acknowledged many of the strengths of our arguments). One high point came on March 14, 2019, when the Connecticut Supreme Court ruled that the case would proceed, reversing the lower court’s dismissal. As Slate wrote that day, “the Connecticut Supreme Court put the gun industry on notice: If you advertise your weapons as alluring tools for mass slaughter, you will face consequences.” That day, along with settling the case in a way that allowed for the families to make public what they learned including the ability to share documents garnered through discovery and the entire applicable insurance coverage, were the two high points.
As I recalled quite a bit this week, there were any number of hurdles that were faced along the way including the removal and subsequent remand, not one but two bankruptcies, and a concerted effort by Remington to prevent the Sandy Hook families from obtaining discovery. These incredible families just kept going.
Law.com: What effect did Remington’s two bankruptcy filings while the case was pending have on this litigation?
Sterling: The first bankruptcy caused a two-month delay, which was frustrating because the families had already beaten back a series of efforts by Remington to delay the case. The second bankruptcy was more complicated and caused a much greater delay. It involved the sale of the company, which posed a threat to the litigation. Chris Boehning and Janus Schutte, along with their colleague Kyle Kimpler, took the lead on this second bankruptcy, successfully preserving the case and enabling the families to proceed with discovery.
Law.com: You could’ve settled this case sooner, but pressed for the release of company documents as part of any resolution. Why was that such a priority for you and your clients?
Koskoff: For eight years, our clients’ goal was to lift the veil of corporate secrecy that has shrouded efforts by Remington, and its parent company, Cerberus, to prioritize profits over safety. Winning the right to soon make public thousands of documents was critical to achieving that goal. In addition, the $33 million offer did not represent all the applicable coverage. The families needed to make it clear to the insurance industry that when you write umbrella policies for gun makers, you are underwriting the risk of a mass shooting. All of the applicable coverage had to be part of any settlement, so that the families’ message would be crystal clear: underwriting gun companies that recklessly market combat weapons in a civilian market is an almost immeasurable risk.
Law.com: This isn’t your only case against gun makers. What application will what you’ve accomplished here potentially have on other cases/?
Sterling: I hope and believe that this landmark case will provide precedential value to courts evaluating our other gun litigation, as well as cases brought by others. It is already serving as a model for other gun cases across the country. I also believe that what we’ve learned about the gun industry will be helpful to others in many different legal efforts.
Law.com: What will you remember most about getting to this settlement for your clients?
Koskoff: I will remember the tears and hugs and the memories we shared with these brave families. We have had the privilege of serving some of these families as far back as about two weeks after the shooting — and for the ensuing nine years. What they lost can never be remedied. But despite their grief, and through their courage and their persistence, they have won a measure of accountability and created a hope that change is possible, and the next Sandy Hook can be prevented.
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