By John W. Scanlan, J.D.
A proposed settlement agreement to resolve allegations that Remington Arms’ Model 700 bolt-action rifle had a defectively designed trigger mechanism that could discharge accidentally without the trigger being pulled has been approved by a federal district court in Missouri. The court also certified classes for settlement purposes and approved attorneys’ fees and costs to the plaintiffs (Pollard v. Remington Arms Co., LLC, March 14, 2017, Smith, O.).
A putative class action was filed in 2013 against Remington Arms Co., Sporting Goods Properties, Inc., and E.I. DuPont Nemours and Co., alleging that certain Remington rifles manufactured since 1948 were defective because they would fire unexpectedly without a trigger pull. Asserting that about 7.5 million firearms in this category had been sold in the United States, the plaintiffs asked the court to require the companies to repair or replace them.
In 2014, the parties filed a settlement agreement; the court granted preliminary approval of the agreement, and the parties executed the court-approved notice plan. However, the court found that the claims rate was very low and directed the parties to develop a new notice plan that would result in a higher response rate. It also expressed its concern that the settlement agreement potentially waived personal injury claims. After the parties filed a third and then a fourth amended settlement agreement, the court again granted preliminary approval of the settlement and approved the supplemental notice plan. The parties filed another joint motion for final settlement approval and submitted a fee application [see Products Liability Law Daily’s January 19, 2017 analysis].
Class certification. Final certification of the litigation as a class action was granted. Millions of firearm owners were potential class members, each of whom shared a claim that his or her firearm was defective and that this alleged defect decreased its utility. Class representatives were typical of the absent class members and there was no conflict of interest or lack of vigorous pursuit of the claims. Furthermore, class members’ claims all related to the design, manufacture, marketing, and sale of allegedly defective firearms, and all members sought the same relief of economic damages and equitable relief for buying a firearm allegedly worth less than its purchase price due to the alleged defect in the trigger mechanism; the question of whether the firearms were defective and the evidence necessary to establish it would be the same for each class member. A class action settlement would avoid duplicate litigation and give concrete remedies to individuals who otherwise likely would be entitled to any due to expiration of the various states’ statutes of limitations.
Notice. Although the court found the original notice plan resulted in an "appalling" claims rate, the supplemental notice plan—which used a targeted social media campaign, a nationwide radio campaign, the use of email and postal mail addresses Remington had compiled from various sources, and the dissemination of posters to thousands of gun shops clearly and concisely stated the nature of the action and other necessary information and increased the claims rate. The parties could not obtain the National Rifle Association’s mailing list or partner with the NRA because Remington was not an NRA Affinity Partner; the objectors did not explain if it would be possible to obtain state hunting license records or whether the records would identify the firearm used by the licensees; and it may not be possible for the parties to have obtain Department of Justice Form 4473s from more than 11,000 sellers and it would be unreasonable under the circumstances to require the parties to do so.
Although the court did not believe the precise reach of the notice could be determined, given that the firearms had been manufactured as long as 70 years ago, it observed that more than one million individuals received email notice from Remington, more than 100,000 received postal mail notice, more than 36 million magazines contained an advertisement providing notice, more than 225 Internet websites displayed the press release, almost one million Internet banner ads were displayed, and posters were sent to about 11,000 stores. Almost 30,000 radio spots reached 55 million individuals and a Facebook campaign reached four million individuals with 375,000 individuals clicking on ads. Under the circumstances, this was the best practicable notice.
The court remained concerned that the 0.29 percent claims rate was still low, but determined that there were a number of valid reasons why class members would not have valid claims; given that the court had found that the best practicable notice had been given, it must presume that the class members had not chosen not to respond for their own reasons. Other courts had approved settlements with claims rates under one percent. Further, the claims period will remain open for 18 months.
While objectors argued that the class notice was misleading because Remington denied the firearms were defective, without a recall a class action notice is not required to include an admission of defect or liability. The notices stated the positions of both the plaintiffs and the defendants.
Other objections. Although some objectors argued that the settlement relief was inadequate because some gun owners would prefer to take their firearms to be repaired at a local gun shop rather than sending them away for repair, the court reasoned that because Remington is responsible if a gun is retrofitted improperly it should not be forced to allow untrained gunsmiths to perform the required retrofits. Remington should not be required to provide reimbursement for class members who replace their firearms’ triggers with aftermarket triggers because an aftermarket trigger may not be appropriate or safe. The provision of a Remington voucher for more than 600,000 firearms manufactured 35 or more years ago because the new Remington trigger will not fit on those firearms was adequate, especially given the fact that their owners’ claims would be time-barred. The claims form and claims process were not too clumsy or complex and the claims period was not too short, given that when it closes in 18 months owners will have had three years in which to submit claims. The court’s concern about the potential release in the originally-proposed agreement of personal injury or property damage claims was addressed in the later agreement, which expressly provides that they are not released by the settlement. Finally, differences in state laws have been removed by agreement.
Settlement terms. The settlement was fair, reasonable, and adequate. The plaintiffs’ chances of succeeding in the lawsuit were minimal, given that the vast majority would be ineligible for relief due to the expiration of statutes of limitations, prior verdicts in favor of the defendants show that the plaintiffs may have difficulty establishing defect and causation, the defendants vigorously challenged the claims, and individual class members likely will not incur enough damage to pursue their claims. By contrast, the settlement provides benefits to millions of owners who likely would receive nothing without it. Remington’s parent company signed the agreement to provide a financial guarantee, even though it was not a defendant to the suit, and further litigation would be complex and the outcome uncertain. Only 19 class members out of as many as 7.5 million opposed the settlement or opted out. By approving the settlement, the court believed that an alleged defect that may have resulted in injuries and deaths would be remedied, saving lives and reducing injuries in the future.
Service awards, attorneys’ fees, costs. The court approved service payments of $2,500 to each of the class representatives. It also granted $12.5 million in attorneys’ fees and costs, finding them reasonable in light of the extensive time and work to litigate the matter, the great risks involved, and the concrete and substantial benefits that counsel obtained for class members.
The case is No. 4:13-CV-00086-ODS.
Attorneys: Timothy W. Monsees (Monsees & Mayer PC) for Ian Pollard. David Brenton Dwerlkotte (Shook, Hardy & Bacon, LLP) and Andrew A. Lothson (Swanson, Martin & Bell, LLP) for Remington Arms Co., LLC., Sporting Goods Properties, Inc. and E.I. Du Pont Nemours and Co.
Companies: Remington Arms Co., LLC; Sporting Goods Properties, Inc.; E.I. Du Pont Nemours and Co.
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