A unique settlement that pays $73 million to the families of Sandy Hook school shooting victims is influencing the way guns are marketed in the United States—and may inspire lawsuits in other industries, including social media, according to Northeastern law professor Richard Daynard.
“At the Public Health Advocacy Institute, we’re interested in seeing whether cases can be brought and how to bring them,” says Daynard, who serves as president of the institute. “This may well reinvigorate investigations by lawyers and public-interest groups around the country into the use of state consumer-protection laws to protect people from a variety of corporate misdeeds.”
The largest known settlement by a gunmaker involved in a mass shooting followed a legal strategy by the families of nine victims that hinged on Connecticut consumer law. The families showed that Remington Arms, which is now bankrupt, marketed its AR-15-style rifle to appeal to vulnerable people like the 20-year-old Sandy Hook killer, who killed 20 first-graders and six adults in the 2012 elementary school attack.
“The strength of the case was that Remington pitched these guns to teenage boys as a way to show their manhood,” Daynard says.
The families focused on the marketing of the weapon because the gun industry is protected by the 2005 Protection of Lawful Commerce in Arms Act, which shields gunmakers from lawsuits that are based on how their firearms have been used.
“Prior to that, there were lawsuits against the gun industry,” says James Alan Fox, the Lipman Family Professor of Criminology, Law, and Public Policy at Northeastern, who was involved in pre-2005 firearm lawsuits in Massachusetts, New York, and California. “By suing the gun industry, we were able to get some concessions from them.
“The protection of the gun industry was so unique,” says Fox of the 2005 law. “I don’t know of any other industries that have that kind of protection against lawsuits. It basically said the only thing you could sue [manufacturers] for was product liability issues—malfunction—but not the use of their guns.”
Fox says consumer-protection laws may be applied to gun companies that market their weapons as a means to cause harm.
“You can advertise a gun and say, ‘These are the great things about this weapon,’” Fox says. “But in no way should you couch it in such a way that it would particularly appeal to criminals or people wanting to murder human beings. If you want to talk about hunting or self-defense, those things are legal. But you can’t promote that it’s desirable for criminal acts.”
As part of the settlement, Remington agreed to make public a vast collection of internal company documents—an unusual act of transparency in such cases, says Daynard, who helped drive the movement to establish the legal responsibility of the tobacco industry for tobacco-induced death, disease, and disability.
“That is spectacularly important, and it demonstrates that they are indeed honorable and public spirited,” Daynard says of the families and their lawyers.
Daynard believes the consumer protection laws may be applied to social media companies, including Facebook.
“There’s no law that protects the social media companies from the damage caused by their algorithms,” Daynard says. “There is a law that says if they simply pass on nasty, horrible, destructive comments from somebody else, they’re not liable for that.”
The Washington Post reported that content that incites anger is five times more valuable to Facebook than content that people like.
“You’re talking about content that deliberately makes people angry and miserable, and that’s the kind of thing that people get hooked on,” says Daynard. “These are issues that [the Public Health Advocacy Institute is] actively looking at now.”
Consumer laws may also be applied against sports leagues that aim marketing campaigns at potential bettors, adds Daynard.
“Gambling is another new and unfortunate application of consumer-protection laws to corporate misconduct,” says Daynard, who believes a new generation of gambling addicts—including teenagers—is being influenced by the marketing campaigns.