United States: Gun Manufacturers' Lawsuits Challenge The Scope Of The AG's Authority Under Massachusetts' Consumer Protection Statute

Last Updated: September 22 2016
Article by Kelly Caiazzo

Petitions filed by Glock, Inc. and Remington Arms Company, LLC in Suffolk Superior Court in recent months will test the validity of a number of legal arguments that may be relied upon to set aside or limit the scope of Attorney General civil investigative demands in the Commonwealth. As we noted in an earlier post, G. L. c. 93A, § 6(1), Massachusetts' unfair and deceptive practices statute, grants AG Maura Healey the authority to issue an investigative demand "whenever [s]he believes a person has engaged or is engaging in any method, act or practice" prohibited by c. 93A. According to the CIDs issued to Remington and Glock this spring, the AG seeks documents related to, among other things, safety-related customer complaints as part of an investigation into "compliance with G.L. c. 93A, as well as with related Massachusetts laws, regulations and common law requirements that impact gun safety and product warranties."

Both gun manufacturers argue that the AG's requests exceed the scope of her authority under the statute. Glock contends that the Court should set its CID because "the Attorney General has no authority under G.L. c. 93A to investigate a party such as Glock, Inc. that does not, and cannot, sell its pistols directly to consumers in the Commonwealth." Although the company sells its pistols to certain groups, such as law enforcement agencies, in Massachusetts, Glock states that it does not sell those manufactured after October 1998 to consumers due to a 2004 AG determination that they do not comply with state regulations. Remington argues that the CID issued to Remington "seeks information completely irrelevant and outside the AG's authority to investigate unfair or deceptive acts in Massachusetts." The company asserts that the Court should limit the scope of the CID to production of Massachusetts claims where less than 1% of the documents sought relate to Massachusetts customers.

The AG states in her response to Glock's petition that approximately 8,000 handguns manufactured by Glock were sold in the Commonwealth between January 2014 and August 2015 to persons who do not appear to be law enforcement officers. She argues that, even if Glock is not responsible for any direct sales to consumers in Massachusetts, manufacturers may face c. 93A and warranty liability for third-party sales of their products. Furthermore, the response contends, "nothing prevents the Attorney General from seeking information relevant to an investigation from those who have it, including from those who are not targets of the investigation." The AG has not yet responded to Remington's petition.

The petitions also raise a number of other challenges to the CIDs. Glock argues that the CID issued to Glock should be set aside for failing to "state the statute and section thereof, the alleged violation of which is under investigation and the general subject matter of the investigation," as required by c. 93A, § 6(4)(b). The company also claims that the CID should be set aside because it constitutes an arbitrary and capricious use of the AG's powers. The AG disputes both of these claims. Alternatively, Glock argues that the individual document requests should each be set aside or modified because they are "unreasonable and improper" under c. 93A, § 6(5) and the Massachusetts Rules of Civil Procedure. Among other things, the company claims that the requests regarding safety-related consumer complaints fail to identify the documents to be produced with "reasonable specificity," as required by c. 93A, §6(4)(c). The AG again contests these claims and argues that, because Glock has not engaged in a proper meet and confer regarding the scope of the requests, these issues are not yet properly before the Court.

Remington likewise makes a number of additional arguments regarding the scope of the AG's requests. The company argues that "the CID is an unreasonable search and seizure under the Fourth and Fourteenth Amendments" of the U.S. Constitution and that it violates the Dormant Commerce Clause of the Constitution by seeking to regulate conduct outside of the Commonwealth. Remington similarly raises constitutional concerns in its request that the Court issue a protective order permitting it to redact customer-identifying information and gun serial numbers. The company asserts that disclosure of that information would "violate[ ] the privacy rights of its customers, chill lawful conduct in exercise of the Second Amendment, and substantially interfere[ ] with Remington's business and customer good will." A protective order is necessary, according to Remington, because c. 93A, § 6(6), which allows for disclosure of information produced in response to a CID to persons other than representatives of the AG "for good cause shown," is insufficient to protect "the substantial interests at stake with gun owner's personal information."

We will provide updates on the cases as they progress.

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