Amicus Brief Filed by Massachusetts Attorney General Maura Healey and 13 Other AGs in Class Action Suit Against Remington Arms
Amicus Brief Filed by Massachusetts Attorney General Maura Healey and 13 Other AGs in Class Action Suit Against Remington Arms
Amicus Brief Filed by Massachusetts Attorney General Maura Healey and 13 Other AGs in Class Action Suit Against Remington Arms
17-1818
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
MAURA HEALEY
Attorney General of Massachusetts
Gary Klein (Mass. BBO #560769)
Dan Krockmalnic (Mass. BBO #668054)
Assistant Attorneys General
Office of the Attorney General
One Ashburton Place
Boston, Massachusetts 02108
617.727.2200
Gary.Klein@state.ma.us
Appellate Case: 17-1818 Page: 1 Date Filed: 07/07/2017 Entry ID: 4554774
TABLE OF CONTENTS
INTEREST OF AMICI ..............................................................................................1
INTRODUCTION .....................................................................................................1
SUMMARY OF ARGUMENT .................................................................................3
ARGUMENT .............................................................................................................5
I. THE DISTRICT COURT DID NOT PROPERLY ANALYZE THE
SETTLEMENT FOR CLASS CERTIFICATION OR FAIRNESS ................5
A. The Important Differences in Class Members Claims Make Certification
of the Proposed Class Improper and Unfair. ...............................................7
1. The Parties Have Failed to Show That the Law Applicable to Claims
of Citizens of Different States Is Sufficiently Uniform to Be Resolved
with Identical Benefits. .........................................................................9
2. The State Law Differences at Issue in This Case Are Meaningful and
Complicated, Raising Problems for Fairness and Class Certification
that the District Court Ignored. ...........................................................11
B. For Many Class Members, the Settlements Benefits Are Illusory,
Inadequate or Non-Existent. ......................................................................15
1. The Owners of 1.2 Million Remington Rifles Actually Are Made
Worse Off by the Settlement. ..............................................................15
2. The Vouchers Being Offered to Members of Class A(3) and A(4) Are
Essentially Worthless. .........................................................................16
3. The Safety DVD Offered to All Claimants is of No Value. ...............17
C. The Miniscule Number of Claims Demonstrates the Settlements
Unfairness. .................................................................................................18
D. The District Court Failed to Fully Consider the Impact of the Settlements
Release on Future Personal Injury Claims. ...............................................19
II. THE DISTRICT COURT ABUSED ITS DISCRETION BY FINDING
THAT NOTICE TO THE CLASS SATISFIED THE REQUIREMENTS OF
RULE 23 ........................................................................................................21
A. Direct Notice Was Not Provided to All of the Class Members Who Could
Reasonably Be Identified. ..........................................................................22
B. The Parties Notice Failed to Apprise Class Members of the Nature of the
Case in Plain, Easily Understood Language. .........................................24
CONCLUSION ........................................................................................................27
CERTIFICATES OF COMPLIANCE AND SERVICE .........................................29
Appellate Case: 17-1818 Page: 2 Date Filed: 07/07/2017 Entry ID: 4554774
TABLE OF AUTHORITIES
Cases
Adams v. Kansas City Life Ins. Co., 192 F.R.D. 274 (W.D. Mo. 2000) ....................9
Am. Shooting Sports Council, Inc. v. Atty Gen., 429 Mass. 871 (1999) ................12
Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997) ................................... passim
Crowston v. Goodyear Tire & Rubber Co., 521 N.W.2d 401 (N.D. 1994).............13
Dorman v. Emerson, Elec. Co., 23 F.3d 1354 (8th Cir. 1994) ................................10
Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974) ...............................................22
Galloway v. Kansas City Landsmen, LLC, 833 F.3d 969 (8th Cir. 2016) ...............17
Gariety v. Grant Thornton, LLP, 368 F.3d 356 (4th Cir. 2004) ................................9
Garza v. Sporting Goods Properties, Inc., Civ. A. SA-93-CA-108, 1996 WL 56247
(W.D. Tex. Feb. 6, 1996)......................................................................................20
General Tel. Co. of Sw. v. Falcon, 457 U.S. 147 (1982) ...........................................5
Home Depot U.S.A., Inc. v. Wabash Nat. Corp., 724 S.E.2d 53 (Ga. App. 2012) ..13
In re Aqua Dots Prod. Liab. Litig., 654 F.3d 748 (7th Cir. 2011)...........................16
In re Ford Motor Co. Vehicle Paint Litigation, 182 F.R.D. 214 (E.D. La. 1998) ..14
In re General Motors Corp. Pick Up Truck Fuel Tank Products Liability
Litigation, 55 F.3d 768 (3d Cir. 1995) .................................................................11
In re Levaquin Prods. Liab. Litig., 700 F.3d 1161 (8th Cir. 2012) .........................19
In re Nissan Motor Corporation Antitrust Litig., 552 F.2d 1088 (5th Cir. 1977) . 21,
22, 24
In re St. Jude Med.l Inc., Silzone Heart Valve Prod. Liab. Action, 425 F. 3d 1116
(8th Cir. 2005) ....................................................................................................6, 9
Leardi v. Brown, 394 Mass. 151 (1985) ..................................................................12
Liriano v. Hobart Corp., 700 N.E.2d 303 (N.Y. 1998) ...........................................13
Lloyd v. Gen. Motors Corp., 397 Md. 108 (Md. 2007) ...........................................13
Lovick v. WilRich, 588 N.W.2d 688 (Iowa 1999) ..................................................13
Marshall v. Natl Football League, 787 F.3d 502 (8th Cir. 2015) ..........................10
Mirfasihi v. Fleet Mortgage Corp., 450 F.3d 745 (7th Cir. 2006) ..........................10
ONeal v. Remington Arms Co., LLC, 817 F.3d 1055 (8th Cir. 2015) ......................3
ii
Appellate Case: 17-1818 Page: 3 Date Filed: 07/07/2017 Entry ID: 4554774
Petrovic v. Amoco Oil Co., 200 F.3d 1140 (8th Cir. 1999) .....................................25
Phillips Petrol. Co. v. Shutts, 472 U.S. 797 (1985) ...................................................7
Ramthun v. Bryan Career College Inc., 93 F. Supp. 1011 (W.D. Ark. 2015) ..........9
Redman v. RadioShack Corp., 768 F.3d 622 (7th Cir. 2014) ..................................16
Robinson v. Brandtjen & Kluge, Inc., 500 F.3d 691 (8th Cir. 2007) (South Dakota
law) .......................................................................................................................13
Russell v. Deere & Co., 61 P.3d 955 (Or. App. 2003) ............................................13
Sigler v. Am. Honda Mtr. Co., 532 F.3d 469 (6th Cir. 2008) ..................................13
Stanton v. Bayliner Marine Corp., 866 P.2d 15 (Wash. 1993) ...............................13
Sta-Rite Indus., Inc. v. Levey, 909 So. 2d 901 (Fla. Dist. Ct. App. 2004) ...............13
Sullivan v. DB Invs., Inc., 667 F.3d 273 (3rd Cir. 2011) .........................................10
True v. Am. Honda Motor Co., 749 F. Supp. 2d 1052 (C.D. Cal. 2010) .................17
Waller v. Hewlett-Packard, Inc., 295 F.R.D. 472 (S.D. Cal. 2013) ........................16
Walton v. Avco Corp., 530 Pa. 568 (Pa. 1992) ........................................................13
West v. Alberto Culver Co., 486 F.2d 459 (10th Cir. 1973) ....................................19
Statutes
28 U.S.C. 1715 ........................................................................................................1
Other Authorities
Fed. R. App. P. 29(a) .................................................................................................1
Fed. R. Civ. P. 23(c)(2)(B) ............................................................................... 25, 28
Fed. R. Civ. P. 23(e).......................................................................................... 24, 25
Gunfight: Remington Under Fire: A CNBC Investigation (CNBC television
broadcast Oct. 15, 2010), (Jan. 11, 2017), http://www.cnbc.com/remington-
under-fire/ ...............................................................................................................2
Mark IV Recall (June 27, 2017), https://ruger.com/dataProcess/markIVRecall/ ....30
Model 710 Product Safety Warning and Recall Notice (Jan. 11, 2017),
https://www.remington.com/support/safety-center/model-710-product-safety-
warning-and-recall-notice.....................................................................................18
iii
Appellate Case: 17-1818 Page: 4 Date Filed: 07/07/2017 Entry ID: 4554774
NRAExplore: Discover the Possibilities, NRA Gun Safety Rules (Jan. 11, 2017)
https://gunsafetyrules.nra.org ...............................................................................21
Remington Model 600 & 660 (Jan. 11, 2017),
https://www.remington.com/support/safety-center/safety-modification-
program/remington-model-600-660 .....................................................................18
Remington Rifle Trigger Defect Documents (Jan. 11, 2017),
http://www.remingtondocuments.com/ ..................................................................3
S. REP. 109-14, 2005 U.S.C.C.A.N. 3 ................................................................1, 19
Third Restatement, Torts: Product Liability 10 ...................................................15
iv
Appellate Case: 17-1818 Page: 5 Date Filed: 07/07/2017 Entry ID: 4554774
INTEREST OF AMICI
Amici Attorneys General, who are their respective states chief law
enforcement officers, file this brief pursuant to Fed. R. App. P. 29(a). The
Class Action Fairness Act (CAFA), which specifically establishes a role for
Attorneys General in the approval process for class action settlements. See 28
U.S.C. 1715. See also S. REP. 10914, 2005 U.S.C.C.A.N. 3, 6 (notice of class
action settlements [must] be sent to appropriate state and federal officials so that
they may voice concerns if the class action settlement is not in the best interest
because there are as many as 7.5 million potentially defective Remington rifles at
issue, subject to accidental firing without a trigger pull.1 This alarming reality
amici to protect class members and the public by insisting on a fair settlement,
INTRODUCTION
It is undisputed that there are up to 7.5 million Remington rifles in
circulation that may fire without a trigger pull at any time, putting their owners and
1
Based on Remingtons estimates, the undersigned are Attorneys General in states
where more than two million potentially defective rifles are present.
1
Appellate Case: 17-1818 Page: 6 Date Filed: 07/07/2017 Entry ID: 4554774
the public at risk of death, other personal injury, and property damage. Under the
settlement, fewer than 25,000 (0.3%) of those guns will be fixed. Even that is a
chimerical benefit, because without a settlement many of the guns for which
retrofit claims have been made would nevertheless have been fixed under
The defect at issue in this settlement presents a serious and continuing public
reports from consumers that its rifles fired without a trigger pull in just the last four
years. See Brief of Amici in Support of Objections to Class Settlement, ECF No.
asserted that their rifles had previously fired without a trigger pull. Of these
misfirings, 788 caused personal injuries or property damage. Order and Opinion,
The human costs of the product defect at issue in this case, such as
Remingtons longstanding awareness of the defect is also clear not just based on its
customers complaints and media reports, but also based on published internal
Appellate Case: 17-1818 Page: 7 Date Filed: 07/07/2017 Entry ID: 4554774
injury cases. See Remington Rifle Trigger Defect Documents:
mechanisms and have recommended alternative designs. ECF No. 196 at 57. See
generally ONeal v. Remington Arms Co., LLC, 817 F.3d 1055 (8th Cir. 2015)
SUMMARY OF ARGUMENT
The District Court made multiple errors in its settlement approval order.
First, the court erred as a matter of law by failing to evaluate the settlement under
decision in Amchem and other binding precedent. The court did not, among other
things, conduct the required evaluation of differences in the value of class member
claims based on widely disparate state laws. After dismissing virtually every claim
of the class Missouri representatives other than consumer protection act claims
under Missouri law, ECF No. 40, the court failed to evaluate at any stage of the
proceedings whether class members from other states might retain more valuable
Those with stronger claims for economic damages almost certainly could
have negotiated a better settlement. Here, the class representatives with the
Appellate Case: 17-1818 Page: 8 Date Filed: 07/07/2017 Entry ID: 4554774
national settlement that would release the stronger claims of other class members.
This both precludes certification of the settlement class and bars settlement
Second, the court erred by approving inadequate relief for class members in
exchange for a broad release of state and federal claims. More than 99.5% of the
class will ultimately receive nothing in exchange for their release of legal claims
regardless of the strength of those claims; more than 15% of the class is rendered
worse off by the settlement; and others are eligible to receive only vouchers that
are insignificant or illusory, and that will not address the ongoing danger that the
guns at issue will misfire. If this appeal is denied and the settlement goes forward,
the entire class is likely to receive settlement benefits that will cost Remington
less, likely far less, than $4 million, even though class counsel fees of $12.5
million have been approved. Further, all class members run the risk that the
Third, the court should not have approved the settlement because class
other things, this means that class members were not properly warned of the risks
of their defective firearms. They were thus not sufficiently encouraged to take
advantage of the only significant settlement benefitto have their defective guns
Appellate Case: 17-1818 Page: 9 Date Filed: 07/07/2017 Entry ID: 4554774
retrofitted for their own safety and for that of their children, their hunting
ARGUMENT
plainly erroneous conclusion of law that [t]he parties have agreed to settle this
matter, and in doing so, they have removed the differences among state laws by
agreement. ECF No. 221 at 28. That statement is inconsistent with the Supreme
Courts requirement, even in the context of settlement, that courts evaluate factual
and state law differences to determine if the claims at issue are sufficiently
claims both preclude certification of a settlement class under Rule 23 and militate
uniform benefit. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 604 (1997)
otherwise applicable state law recognizes such claims.) See also General Tel. Co.
of Sw. v. Falcon, 457 U.S. 147, 157-58, n.13 (1982) (concluding that the adequacy
Appellate Case: 17-1818 Page: 10 Date Filed: 07/07/2017 Entry ID: 4554774
the same interest and suffer the same injury as the class they represent). The
unfairly negotiating away the stronger legal or factual claims of others for their
own benefit or to preserve class counsels opportunity to claim fees. See Amchem,
settlement).
Here, the court erred by failing to analyze whether removing state law
result, it overlooked that this matter came up for settlement approval for a national
class even though no claim under any state law other than Missouri was ever pled.
The parties never made any presentation to establish that the laws of the 50 states
are the same on the important products liability issues that affect class members.
Nor did the parties conduct the legally mandated evaluation of applicable choice-
of-law principles necessary to determine that Missouri law fairly applies to all
class member claims. As this Court held in In re St. Jude Medical, Inc., Silzone
Heart Valve Prod. Liab. Action, 425 F. 3d 1116, 1120 (8th Cir. 2005):
Appellate Case: 17-1818 Page: 11 Date Filed: 07/07/2017 Entry ID: 4554774
held an individualized choice-of-law analysis must be
applied to each plaintiff's claim in a class action. Phillips
Petrol. Co. v. Shutts, 472 U.S. 797, 822-23 (1985).
Therefore, we must first decide whether any conflicts
actually exist. See id., at 816.
The same analysis was mandated here, because both predominance of common
claims and adequacy of representation are required to determine fairness and the
importantly, the class representatives cannot be adequate when their claims differ
from those of other class members on significant factual or legal grounds. Id.
The class members claims in this matter are entirely grounded in the
respective consumer protection, contract, and tort laws of each jurisdiction in the
United States. Despite this, the class representatives ultimately pled only
well as generic claims for fraudulent concealment and unjust enrichment. See
First Amend. Class Action Compl., ECF NO. 90. By contrast, the settlement
2
Amchem involved certification of a settlement class. The Supreme Court
concluded that the settlement could not go forward based on factual differences
and state law variations applicable to class member claims, even though
superiority of a class action for adjudication at trial was not at issue. Therefore,
this court should reject Appellees contention (offered below) that St. Judes
concern about state law differences in class member claims is not relevant to
settlement because no trial is contemplated.
7
Appellate Case: 17-1818 Page: 12 Date Filed: 07/07/2017 Entry ID: 4554774
release will discharge all claims whether sounding in tort, contract, breach of
warranty, or any other claims whatsoever under federal law or the law of any
state. ECF No. 138 at 94. In short, all claims (other than certain personal injury
and property damage claims) are released under federal law as well as the laws of
all 50 states and the District of Columbia, even though the only substantive claim
Success, Class Certification and Damages, Joint Supp. Br. Pursuant to the Courts
Order of Dec. 8, 2015, ECF NO. 127 at. 237. The District Court, without
analyzing whether those alleged hurdles apply to class members in other states,
apparently adopted the class representatives pessimistic view and described their
likelihood of success as minimal. ECF No. 221 at 29. The court reached this
conclusion without evaluating any states law other than Missouris, without
economic loss under relevant state laws, and without examining a shred of the
overwhelming evidence that in many states class members claims are enhanced
Appellate Case: 17-1818 Page: 13 Date Filed: 07/07/2017 Entry ID: 4554774
because Remington has been aware of the tendency of the rifles at issue to fire
The District Court conducted neither the necessary evaluation of state laws
nor a conflict-of-law analysis, because the parties did not even attempt to carry
their burden of establishing the appropriate choice of law. See St. Jude, 425 F.3d
at 1120. See, e.g., Adams v. Kansas City Life Ins. Co., 192 F.R.D. 274, 278 (W.D.
Mo. 2000) (describing the process necessary to credibly demonstrate that state
burdenand not the courts or the objectorsto make the necessary credible
demonstration. Id. See also Gariety v. Grant Thornton, LLP, 368 F.3d 356, 370
(4th Cir. 2004) (The plaintiffs have the burden of showing that common questions
of law predominate, and they cannot meet this burden when the various laws have
not been identified and compared.); Ramthun v. Bryan Career College Inc., 93 F.
Supp.3d. 1011, 1020 (W.D. Ark. 2015) (rejecting class action settlement because
3
This matter proceeded directly from an order dismissing the bulk of the Plaintiffs
claims to proceedings on various versions of a class settlement. See ECF Nos. 40
61. Because of the resulting absence of a factual record in the District Court, some
of the amici filed a brief in that court that described and appended substantial
factual materials about the long history of this rifle defect. See ECF 196 at 59.
Appellate Case: 17-1818 Page: 14 Date Filed: 07/07/2017 Entry ID: 4554774
[p]laintiffs have not presented an adequate choice-of-law analysis on all of the
causes of action). Ultimately, the court was required to consider whether class
representatives have agreed to ignore the stronger state law claims of some class
members in order to get a better settlement for themselves. Amchem, 521 U.S. at
In approving the settlement without any analysis of other state law, the
District Court ignored binding precedent and instead cited a single out-of-circuit
decision, Sullivan v. DB Invs., Inc., 667 F.3d 273, 304 (3rd Cir. 2011). ECF No.
221 at 28. Sullivan is an outlier: it is inconsistent with Amchem and St. Jude as
well as the law of other jurisdictions. See Mirfasihi v. Fleet Mortgage Corp., 450
F.3d 745, 74950 (7th Cir. 2006) (if a claim in a national settlement is grounded in
state law, its value must be analyzed under the law of all states whose law may
apply). See generally Marshall v. Natl Football League, 787 F.3d 502, 519 (8th
Cir. 2015) ([I]n evaluating the strength of the plaintiffs case and the potential
4
Given that the harms at issue occurred in many states, Missouri conflict-of-law
principles would likely result in application of the lex loci delicti rule, applying the
laws of the states where the rifles were sold. See Dorman v. Emerson, Elec. Co.,
23 F.3d 1354, 1359 (8th Cir. 1994) (Missouri law establishes that where it is
difficult to see clearly that a particular state has the most significant relationship to
an issue, the trial court should apply the lex loci delicti rule[and] apply the
substantive law of the place where the injury occurred.). Among other things,
Remington is not based in Missouri and most of the class members neither reside
in nor purchased their rifles there. ECF No. 90 at 8, 1226.
10
Appellate Case: 17-1818 Page: 15 Date Filed: 07/07/2017 Entry ID: 4554774
value, the district court must take into account the interests of the entire classnot
merely the named plaintiffs.). It is also inconsistent with the Third Circuits own
Liability Litigation, 55 F.3d 768 (3d Cir. 1995). Sullivans peculiar holding was
largely grounded in federal antitrust law, and the only state-law claims at issue
tort, consumer protection and product safety claims at issue in the General Motors
case and here. Here, as discussed below, claims that the District Court believed
were weak or non-existent in Missouri are strong and have considerable value to
Although amici decline to take up the parties burden (and the District
the proposed class, even cursory review illustrates the complex factual and legal
differences here.
Other class members appear to have far better claims than the largely
dismissed claims put forward by the class representatives. These intra-class factual
11
Appellate Case: 17-1818 Page: 16 Date Filed: 07/07/2017 Entry ID: 4554774
As the court and class representatives noted below, they believed Missouri
law poses hurdles for the class representatives surviving consumer protection
claim and may require manifestation of the defect to establish a basis for damages.
gun that fails fundamental requirements of safety and performance violates the
Am. Shooting Sports Council, Inc. v. Atty Gen., 429 Mass. 871, 877 (1999); see
also Leardi v. Brown, 394 Mass. 151, 159-60 (1985) (explaining circumstances in
which statutory damages can be awarded for indeterminate but real economic
injuries).
Similarly, the law regarding the applicability of the economic loss doctrine
varies across states. For example, class members residing in Maryland may
successfully bring an action for their economic losses based upon the history of
injury or death associated with the affected rifles whether or not a defect has been
manifest. See Lloyd v. Gen. Motors Corp., 397 Md. 108, 131 (2007) (recognizing
an uninjured class of plaintiffs ability to sue for economic losses under a products
12
Appellate Case: 17-1818 Page: 17 Date Filed: 07/07/2017 Entry ID: 4554774
liability theory of recovery and the states consumer protection act, where there
were 38 reported injuries and three deaths associated with the product, but no
injuries to class members). Many other states also have complete or limited
exceptions to the economic loss doctrine that are potentially applicable here. See,
e.g., Russell v. Deere & Co., 61 P.3d 955, 958 (Or. App. 2003) (economic loss
other property); Stanton v. Bayliner Marine Corp., 866 P.2d 15, 1920 (Wash.
1993) (same); Home Depot U.S.A., Inc. v. Wabash Nat. Corp., 724 S.E.2d 53, 59
60 (Ga. App. 2012) (economic loss claim allowed where sudden and calamitous
With respect to the duty to warn, several states have adopted variations
based on the Third Restatement, Torts: Product Liability 10, creating potential
economic liabilities for a post-sale failure to warn.5 Other states apply differing
obligations on sellers depending on the product.6 The court dismissed such claims
5
E.g., Sta-Rite Indus., Inc. v. Levey, 909 So. 2d 901, 905 (Fla. Dist. Ct. App.
2004); Lovick v. WilRich, 588 N.W.2d 688, 69596 (Iowa 1999); Liriano v.
Hobart Corp., 700 N.E.2d 303, 307 (N.Y. 1998); Robinson v. Brandtjen & Kluge,
Inc., 500 F.3d 691, 697 (8th Cir. 2007) (South Dakota law).
6
See, e.g., Crowston v. Goodyear Tire & Rubber Co., 521 N.W.2d 401, 409 (N.D.
1994) (imposing post-sale duty to warn where the product defect posed a grave risk
of serious injury); Walton v. Avco Corp., 530 Pa. 568, 578 (1992) (imposing post-
sale duty to warn where the defective product is sold in a limited or specialized
market); Sigler v. Am. Honda Mtr. Co., 532 F.3d 469, 485 (6th Cir. 2008) (whether
13
Appellate Case: 17-1818 Page: 18 Date Filed: 07/07/2017 Entry ID: 4554774
here, based only on Missouri law. See ECF No. 40 at 3-4. There are also
may mean some class members retain such claims and others do not. See In re
Ford Motor Co. Vehicle Paint Litigation, 182 F.R.D. 214, 22223 (E.D. La. 1998)
models, there is reason for concern about the adequacy of the class representatives
here. The District Court relied on the economic loss doctrine under Missouri law
were not owners of guns for which the defect had manifested. See ECF No. 40 at
4. Those individuals are thus not representative of the many thousands of rifle
owners whose guns have manifested the defect by misfiring, including especially
those who own guns that have already caused personal injury or property damage.
See supra, at 2. Under Amchem, they cannot properly represent those owners who
have claims that survive under the economic loss doctrine, even in states like
7
To the extent any of the class representatives own guns that have misfired, it is
telling that they did not bring available tort claims by way of an amended
complaint.
14
Appellate Case: 17-1818 Page: 19 Date Filed: 07/07/2017 Entry ID: 4554774
B. For Many Class Members, the Settlements Benefits Are Illusory,
Inadequate or Non-Existent.
some subclasses, vouchers for others, and a generic gun safety videodo not
settlement subclass B(1)all current owners of Remington Model 700 and Model
Seven rifles containing an X-Mark Pro trigger mechanism manufactured from May
1, 2006 to April 9, 2014a retrofit to fix the defect in their trigger in exchange
for a release. ECF No. 138 at 36. But this remedy is already available. These
class members may participate in an ongoing voluntary recall that replaces the
triggers for these same firearms. See ECF No. 221 at 30, n.27. Under this existing
8
All members of subclass A(3) and certain members of subclass A(2) also are
already entitled to obtain a trigger repair from Remington without a release. See
Remington Model 600 & 660 (Jan. 11, 2017),
https://www.remington.com/support/safety-center/safety-modification-
program/remington-model-600-660; Model 710 Product Safety Warning and
Recall Notice (Jan. 11, 2017), https://www.remington.com/support/safety-
center/model-710-product-safety-warning-and-recall-notice.
15
Appellate Case: 17-1818 Page: 20 Date Filed: 07/07/2017 Entry ID: 4554774
To require a release in exchange for relief that is already available to class
members makes them worse off. In re Aqua Dots Prod. Liab. Litig., 654 F.3d 748,
752 (7th Cir. 2011) (a settlement that provides relief that already is on offer,
which duplicates a remedy that most buyers already have received, and that
remains available to all members of the putative class, does not adequately
preexisting recalls typically do not get certified under Rule 23 because they fail to
Inc., 295 F.R.D. 472, 488 (S.D. Cal. 2013) (collecting and explaining relevant
caselaw).
Other class members who do make claims have no option for a retrofit or
repair and will receive only a voucher in the amount of $10 or $12.50 for purchase
of additional Remington products. See ECF No. 138 at 53; ECF No. 221 at 30,
n.26. Almost every Remington product, including rifles, ammunition, hats and T-
shirts, costs more. Such settlements, requiring a payment by the class member to
Corp., 768 F.3d 622, 63233 (7th Cir. 2014) (discussing the problems associated
with settlements in which benefits are paid in coupons); cf. Galloway v. Kansas
16
Appellate Case: 17-1818 Page: 21 Date Filed: 07/07/2017 Entry ID: 4554774
City Landsmen, LLC, 833 F.3d 969, 97375 (8th Cir. 2016) (noting sometimes
other things, the real monetary value and likely utilization rate of the coupons
provided by the settlement. S. REP. 10914, at 31, 2005 U.S.C.C.A.N. 3, 31. See
also True v. Am. Honda Motor Co., 749 F. Supp. 2d 1052, 1082 (C.D. Cal. 2010)
(rejecting coupon settlement in a products liability case under the CAFA standard).
in this settlement, and they should not have been approved. First, the amounts are
voucher has value only if it is used, and the company will undoubtedly profit when
consumers add substantial value to the awarded amount to pay for Remington
products, such as new rifles, that typically cost hundreds or thousands of dollars.
Second, claimants who receive vouchers retain the considerable personal and
consideration for the release. See Second Joint Suggestion in Support of Final
Settlement Approval, ECF No. 180 at 1112. That video provides no specific
17
Appellate Case: 17-1818 Page: 22 Date Filed: 07/07/2017 Entry ID: 4554774
duplicative of information widely disseminated elsewhere. See id. at 12, n.12
(describing contents of the video). The National Rifle Association, for example,
freely publicizes gun safety rules on the internet that are effectively the same as
video explains the conditions that might cause the Remington trigger defect to
The settlements supposed relief is inadequate not only in form, but also in
reach. As of the date of the fairness hearing, only 22,000 claims had been filed.
ECF No. 221 at 21. Although the claims process remains open, there is no
significant number of new claims will materialize. Ultimately, more than 99.5% of
the rifles at issue are unlikely to be repaired through the settlement, and their
under $2 million (assuming that all 22,000 claims are eligible for retrofit at a
9
See NRAExplore: Discover the Possibilities, NRA Gun Safety Rules (Jan. 11,
2017), https://gunsafetyrules.nra.org.
18
Appellate Case: 17-1818 Page: 23 Date Filed: 07/07/2017 Entry ID: 4554774
maximum estimated value to the class member of $89.50). ECF No. 221 at 30,
n.24. Even with an extraordinarily optimistic projection that claims will double
before the claims period ends, the cash value of the settlement to class member
property damage claims, it broadly covers many of the claims that sound in tort or
contract that may serve as grounds for those actions. For example, failure to warn
is a common basis for a products liability action for personal injuries. See, e.g., In
re Levaquin Prods. Liab. Litig., 700 F.3d 1161 (8th Cir. 2012). Similarly, breach
of the warranty of merchantability is often the basis for a personal injury action,
despite sounding in contract. See, e.g., West v. Alberto Culver Co., 486 F.2d 459,
461 (10th Cir. 1973) (applying Colorado law). Yet the language of the settlement
10
This number almost certainly exceeds the real value of the settlement because,
among other reasons, an unspecified number of class members made claims for
vouchers alone, with a maximum value per voucher of $12.50 in credit toward
Remington products.
11
The large fee award was justified by the Court, in large part based on a
calculation that assumed that all class members would claim and receive the
settlement benefits that they qualify for. ECF No. 221 at 3739. The low
settlement claims rate makes the fallacy of the Courts assumption clear.
19
Appellate Case: 17-1818 Page: 24 Date Filed: 07/07/2017 Entry ID: 4554774
release could be used by Remington to oppose future personal injury claims based
settlement benefit or not. See ECF NO. 138 at 94 (discharging all claims
whatsoever under federal law or the law of any state). Even if that defense fails, a
class members failure to file a claim or to have the gun retrofitted could be the
Remington has failed to disavow the intention to use the settlement to gain
these advantages in personal injury cases. And the Garza shotgun settlement, cited
by Plaintiffs to justify the release in this settlement, ECF No. 201 at 56,
diminishes rather than advances the parties position on fairness. In Garza, the
negotiated release specifically excluded economic loss claims to the extent that
they serve as the basis for a personal injury action. See Garza v. Sporting Goods
Properties, Inc., Civ. A. SA-93-CA-108, 1996 WL 56247, at *36 (W.D. Tex. Feb.
such claims are based on negligence, warranty, strict products liability, or any
other cause of action or theory of recovery). These explicit limits are not present
20
Appellate Case: 17-1818 Page: 25 Date Filed: 07/07/2017 Entry ID: 4554774
II. THE DISTRICT COURT ABUSED ITS DISCRETION BY
FINDING THAT NOTICE TO THE CLASS SATISFIED THE
REQUIREMENTS OF RULE 23
The District Court also failed to properly execute its obligation to direct
notice in a reasonable manner to all class members who would be bound by the
[settlement]. Fed. R. Civ. P. 23(e). Absentee class members will generally have
[] no knowledge of the suit until they receive the initial class notice. This will be
their primary, if not exclusive, source of information for deciding how to exercise
their rights under Rule 23. In re Nissan Motor Corporation Antitrust Litig., 552
Notice (1) must be sent directly to class members, to the greatest extent
practicable, and (2) must explain the case and settlement in plain language
designed to alert recipients of the nature of the action and how the settlement will
affect their rights. Fed. R. Civ. P. 23(c)(2)(B) and (e). The notice offered in this
settlement does neither. Amici and the objectors made clear that other means of
identifying class members were readily available; yet the District Court approved a
notice plan that resulted in direct notice to less than 15% of the class and an
abysmal 0.29% claims rate, ECF No. 221 at 13, 21, a rate that is strikingly low
For the class members who did receive notice, its contents failed to clearly
convey the true nature of this action and settlement: to retrofit faulty guns and
21
Appellate Case: 17-1818 Page: 26 Date Filed: 07/07/2017 Entry ID: 4554774
prevent accidental deaths or injuries. See ECF No. 201 at 2; ECF No. 180 at 11. A
settlement should not be approved unless all identifiable class members have been
sent the clear, concise, and direct notice to which they are entitled as a matter of
A. Direct Notice Was Not Provided to All of the Class Members Who
Could Reasonably Be Identified.
The United States Supreme Court has declared that [Rule 23] expresses an
members who are identifiable through reasonable efforts. Nissan, 552 F.2d at
1097 (citing Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 17576 (1974)). Actual,
As amici and others pointed out to the District Court, the parties reasonably
could have provided direct notice to a much greater portion of the class. See ECF
No. 196 at 18; Aff. of Todd B. Hilsee, Ex. 2 to Frost Obj., ECF No. 150. The
parties also could have provided funding to state agencies, which could have sent
22
Appellate Case: 17-1818 Page: 27 Date Filed: 07/07/2017 Entry ID: 4554774
maintained by many states. See ECF No. 196 at 18, n.15 (examples of states that
available, the parties only sent about 93,000 mailings and 1 million emails to class
campaign. These limited efforts provided direct notice to less than 15% of the
class, leaving to chance whether the majority of the class would ever learn of this
opt-out settlement, which includes the release of their legal rights and a time-
limited opportunity to correct a dangerous, latent defect in their rifles. See ECF
No. 221 at 7, 13. As a result of such limited efforts, only 0.29% of potential class
members have filed claims and Remington will incur only minimal cost for
While low claims rates may reasonably result in some circumstances, all the
evidence presented to the District Court makes clear that here an effective notice
would have yielded a significantly higher claims rate. The response rate in a
similar settlement with a better notice topped 20%. See ECF No. 201 at 5
(plaintiffs report a 25% claims rate in Garza shotgun barrel defect settlement).
Even the prior voluntary Remington rifle recall had better notice and apparently
23
Appellate Case: 17-1818 Page: 28 Date Filed: 07/07/2017 Entry ID: 4554774
(approximately 351,000 gun owners previously sought a retrofit through the prior
recall, or about 22% of the estimated 1.55 million gun owners whose guns fit the
recall criteria).
greater than those garnered by the settlement notice here. Yet when the parties
were questioned about the methods used to identify recipients of the voluntary
recall notice, they could not answer. Settlement Hearing Transcript at 6:1220.
or address are known or very easily ascertainable and whose legally protected
providing the greatest number of names and addresses must be used. Nissan, 552
F.2d at 1097-99. Because additional class members were easily identifiable, the
District Court abused its discretion in finding that the parties notice efforts were
The language of the settlement notice likely also prevented those who
received it from grasping the significant risk posed by their firearms defective
notice must clearly and concisely state in plain, easily understood language the
24
Appellate Case: 17-1818 Page: 29 Date Filed: 07/07/2017 Entry ID: 4554774
nature of the class action and settlement. See Rule 23(c)(2)(B)(i). [That]
members to determine the potential costs and benefits involved[.] See Petrovic v.
Amoco Oil Co., 200 F.3d 1140, 1153 (8th Cir. 1999). Here, because of the
consequences of a future misfire, any adequate description of the nature of the case
must clearly state the potential consequences of continuing to use a firearm that
can accidentally fire without a trigger pull.12 It makes little sense to have a
settlement where the only significant benefit is a repair, if the settlement notice
Here, neither the notice nor the settlement website meaningfully describes,
in plain language, the risks associated with continued use of the rifles at
issue. See ECF No 138, Ex. B, C & F. Instead, to the extent that the danger is
12
Although guns are exempt from the recall regime of the federal Consumer
Product Safety Commission (CPSC), the CPSCs recall notice practices are
clearly based on its substantial experience in encouraging consumer compliance
with product safety recalls. Those practices therefore provide some guidance on
how to provide effective notice of a recall. As discussed in the amicis brief below,
the notice here meets none of the CPSCs standards. ECF No. 196 at 1319.
25
Appellate Case: 17-1818 Page: 30 Date Filed: 07/07/2017 Entry ID: 4554774
firearms is not defective and that the value and utility of
these firearms have not been diminished.
See ECF No 138 Ex. B, at 12. By contrast, in the earlier voluntary recall,
clear language of the recall, leading to almost a 100 times better response rate there
than to the settlement notice. That large response evidences that class members are
deeply concerned about this issue. Had they received a similarly clear settlement
13
Another gun manufacturer, Ruger, recently recalled its Mark IV pistols because
of the risk that they may fire without a trigger pull in certain circumstances:
https://ruger.com/dataProcess/markIVRecall/. In its notice of recall, it stated:
Until your Mark IV pistol has been retrofitted or you verify that it is not subject
to the recall, we strongly recommend that you not use your pistol.
26
Appellate Case: 17-1818 Page: 31 Date Filed: 07/07/2017 Entry ID: 4554774
notice in this case, regarding a defect that likewise can lead to injury or death, far
more than .29% of the class are likely to have filed claims or opted out.
CONCLUSION
For the foregoing reasons, this Court should reverse the District Courts
order and opinion, and reject the proposed settlement for failure to meet the class
July 6, 2017
Respectfully submitted,
MAURA HEALEY
ATTORNEY GENERAL OF
MASSACHUSETTS
27
Appellate Case: 17-1818 Page: 32 Date Filed: 07/07/2017 Entry ID: 4554774
Douglas S. Chin Eric T. Schneiderman
Attorney General of Hawaii Attorney General
425 Queen Street State of New York
Honolulu, Hawaii 96813 120 Broadway
New York, NY 10271
Stephen H. Levins
Executive Director Ellen F. Rosenbaum
State of Hawaii Attorney General
Office of Consumer Protection Oregon Department of Justice
235 South Beretania Street, Suite 801 1162 Court Street NE
Honolulu, Hawaii 96813 Salem, OR 97301
28
Appellate Case: 17-1818 Page: 33 Date Filed: 07/07/2017 Entry ID: 4554774
CERTIFICATES OF COMPLIANCE AND SERVICE
3. This brief has been scanned for viruses and is, to my knowledge, virus
free.
CERTIFICATE OF SERVICE
29
Appellate Case: 17-1818 Page: 34 Date Filed: 07/07/2017 Entry ID: 4554774