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From Products Liability Law Daily, September 18, 2018

Nevada mass shooting class action preempted by federal Protection of Lawful Commerce in Arms Act

By Pamela C. Maloney, J. D.

After determining that the Texas-based patent-holder and manufacturer of a "bump stock" device, which was used to enable semiautomatic rifles to shoot at a rate comparable or equivalent to that of a fully automatic weapon, was subject to its jurisdiction, the federal district court of Nevada found that because the bump stock device qualified as a component part, a putative class action lawsuit filed following the October 1, 2017 mass shooting in Las Vegas was preempted by the federal Protection of Lawful Commerce in Arms Act. However, the court granted the named representatives of the class leave to amend their complaint in order to plead additional facts that would establish that an exception to the Act applied to circumvent preemption (Prescott v. Slide Fire Solutions, LP, September 17, 2018, Navarro, G.).

In the aftermath of the mass shooting that occurred during the Route 91 Harvest Music Festival in Las Vegas, Nevada, on October 1, 2017, three individuals filed a putative class action in Nevada state court on behalf of themselves and all those who suffered emotional distress as a result of the tragic incident against Slide Fire Solutions, LP, the patent-holder and manufacturer of the "bump stock" device that enabled the shooter’s semiautomatic rifles to shoot at a rate comparable or equivalent to that of a fully automatic weapon. In addition, the complaint included several as-yet unidentified companies that also might make, market, distribute, supply, or sell those or similar devices [see Products Liability Law Daily’s October 11, 2017 analysis]. The complaint set forth the following causes of action against Slide Fire: (1) negligence; (2) negligent infliction of emotional distress under a theory of bystander liability; (3) negligent infliction of emotional distress under a theory of direct liability; (4) negligent products liability; (5) strict products liability; and (6) public nuisance. After the case was transferred to federal court, Slide Fire moved to dismiss, arguing that the court had no basis to exercise general or specific personal jurisdiction over it and that the federal Protection of Lawful Commerce in Arms Act (PLCAA) preempted all claims against it.

Personal jurisdiction. The court found no basis for exercising general personal jurisdiction over the bump stock manufacturer, which had its principal place of business in Texas and where each of its partners was a citizen. The fact that the manufacturer directed its sales and marketing at Nevada citizens and operated a highly interactive website that generated "millions of dollars" in revenue from Nevadans was not enough to establish that the manufacturer was "at home" in Nevada.

However, the manufacturer’s asserted contacts with Nevada—which included its online storefront for selling its products to Nevadans; its sale of bump stocks through Nevada retailers; its regular promotion at trade shows in Nevada; and the attendance of its officers at those trade shows—indicated an intent to serve the market in that state. Thus, the court could reasonably infer that the manufacturer’s contacts with Nevada constituted purposeful availment in satisfaction of one of the requirements for specific jurisdiction. For purposes of the second requirement, i.e., that the underlying claims were directly related to the manufacturer’s contacts with Nevada, the court concluded that because the root of each cause of action was the manner in which the manufacturer had promoted, distributed, or advertised its bump stocks, and the way in which those actions created a foreseeable risk of the October 1 shooting, its connections to Nevada were causally related to each cause of action laid out in the complaint. Finally, with regard to the third requirement, the court held that jurisdiction over the manufacturer was reasonable given both the named representatives’ and Nevada’s robust interests in adjudicating the case in this forum. In addition, the uncontroverted allegation that the manufacturer had recently attended trade shows in Las Vegas indicated that travel to the forum was not unduly burdensome. Having determined that it had the requisite specific jurisdiction over the manufacturer, the court denied its motion to dismiss.

Preemption. The question of whether the putative class’s claims were preempted by the PLCAA required the court to determine first whether bump stocks fell within the definition of a qualified product under the Act, thereby shielding the manufacturer from liability, or whether they were accessories which were not protected under the PLCAA. If bump stocks qualified as a product under the Act, the court must then determine whether any of the specified exceptions to the PLCAA applied so that the action against the manufacturer could proceed.

As a preliminary matter, the court found, and the parties agreed, that a "stock" was an integral component of a rifle in that it permitted the firearm to be fired from the shoulder. Explaining that a bump stock was a modified type of rifle stock that replaced the existing stock, the court concluded that upon installation, a bump stock became the rifle’s operative stock and, therefore, became an integral part of the rifle. The court rejected the named representatives’ argument that bump stocks were not components because federal tax law and regulations treated them as accessories because they were not included at the time of sale and required a conversion kit for installation. According to the court, after-market installations, as well as after-market enhancements, did not necessarily convert a component into an accessory. The fact that bump stocks enhanced a rifle’s operation and were installed after purchase by an end user did not negate the fact that they were substitutes for the original stock and, as such, were essential units. Having determined that bump stocks were component parts of a rifle and, therefore, constituted qualified products under the PLCAA, the court turned to the issue of whether any of the Act’s exceptions applied to this action.

The court explained that because the PLCAA did not confer a private right of action, the named representatives must satisfy the Act’s predicate exception provision pursuant to which they were required to allege and prove that the manufacturer had knowingly violated a predicate statute, which included laws that regulated the manufacturing, importing, selling, marketing, and using firearms or those that regulated the firearms industry. To that end, the named representatives alleged that the manufacturer had made a false entry on its application for a federal firearms license and that in order to legally sell the product under federal law, the manufacturer had misrepresented to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) that bump stocks were intended to assist persons whose hands had limited mobility. The court set aside the first alleged predicate violation because it had not been included in the complaint.

As to the second predicate violation, the court was not satisfied that the named representatives’ evidence of the misrepresentation to the ATF gave rise to a predicate statutory violation. The named representatives had pointed to a letter written by the ATF in which it described how a bump stock functioned. The ATF letter included a finding that a bump stock was a firearm part and was not regulated as a firearm under the Gun Control Act or the National Firearms Act. Although the letter alluded to the alleged misrepresentation that bump stocks were intended for persons with limited mobility, it was not clear to the court that this misrepresentation influenced the ATF’s conclusion. If a device’s marketability to those with disabilities was not a factor in the ATF’s finding, then the named representatives could not show that the alleged misrepresentation was the proximate cause of the injuries involved in the case, the court opined. Concluding that the named representatives had failed to point to a statutory violation that would permit a finding that an exception to the PLCAA applied, the court granted the manufacturer’s motion to dismiss. However, the court granted the named representatives leave to amend their complaint, explaining that they might be able to plead additional facts that would satisfy the requirements of an applicable exception to the PLCAA.

The case is No. 2:18-cv-00296-GMN-GWF.

Attorneys: Aaron D. Ford (Eglet Prince) for Devon Prescott. Danny C. Lallis (Pisciotti Malsch) and F. Thomas Edwards (Holley Driggs Walch Fine Wray Puzey & Thompson) for Slide Fire Solutions, LP.

Companies: Slide Fire Solutions, LP

MainStory: TopStory PreemptionNews JurisdictionNews WeaponsFirearmsNews NevadaNews

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