A federal appeals court gave Smith & Wesson an important legal reprieve on March 10, vacating a lower court ruling that could have forced the gun company to hand over advertising and research documents to New Jersey’s attorney general. The ruling is the latest in a series of small legal wins for the gun industry, which has battled fiercely to protect its internal workings from prying eyes.
In October of 2020, then-New Jersey Attorney General Gurbir Grewal used a state consumer fraud protection law to subpoena Smith & Wesson as part of an investigation into the company’s advertising practices. Grewal alleged that the gunmaker’s ads promoting the concealed carry of guns without mentioning permitting requirements — like one that showed a woman carrying a gun in her purse at work, a cafe, and the gym — in effect encouraged illegal activity in the state.
Similarly, Grewal argued that Smith & Wesson had effectively lied in advertisements claiming that guns make a home safer, since a robust body of research has found that the presence of a firearm in the home increases risks of suicide, homicide, and accidental injury.
To fight the subpoena, Smith & Wesson countersued in December of 2020. The suit was dismissed, but this latest appeals court ruling will allow the company a second chance to argue that the subpoena should be thrown out.
“While the company’s lawsuit may proceed on procedural grounds, we are confident that its claims will eventually be rejected,” a spokesperson for acting New Jersey Attorney General Matthew J. Platkin told The Trace. They added that the ruling will not affect an ongoing investigation by Platkin into Smith & Wesson’s advertising practices, which the subpoena was designed to bolster.
Lawyers for Smith & Wesson did not respond to request for comment.
Over the past year, several gun companies have dodged attempts to expose internal information about their operations. In September of 2021, Smith & Wesson, along with a number of major gunmakers, successfully postponed a discovery request from the city of Gary, Indiana. And just last month, the gunmaker Remington settled its nearly eight-year suit with the families of the victims of the Sandy Hook school shooting for $73 million. While the settlement was seen by some as a win for opening the door to similar lawsuits against gun companies, it also may have enabled the company to avoid making certain documents public.
In New Jersey, Grewal’s subpoena sought documents related to advertising contracts, market analyses, and research into firearm safety, among other records. The gunmaker called the attorney general’s pursuit “abusive litigation,” and argued that the subpoena should be barred under the industry’s special legal immunity and a number of other constitutional protections.
“Here, what must be off the table is the Attorney General’s repeated abuse of power that violates the First, Second, Fourth, Fifth, and Fourteenth Amendments to the U.S. Constitution, as well as the PLCAA,” the company’s complaint reads.
Grewal argued that the wide latitude provided by New Jersey’s Consumer Fraud Act allowed him to subpoena any company suspected of deceiving New Jersey residents. A federal district court agreed, dismissing Smith & Wesson’s complaint and allowing the subpoena to proceed.
Grewal resigned as attorney general in July of 2021 to take a job at the Securities and Exchange Commission.
Now, the appeals court ruling in Smith & Wesson’s favor has revived the company’s challenge to Grewal’s subpoena. A ruling in that case will likely determine the scope of state attorneys’ general subpoena powers, and could set a precedent for future consumer fraud claims based on statements from gunmakers about concealed carry and home defense.