Litigation

Brazil Extracts Billions from Mining Giants

When multinational mining companies are implicated in disasters in the Global South they often get away with paying minimal amounts in compensation to the communities or workers involved. Brazil recently broke that pattern by negotiating a settlement worth over US$30 billion.

That amount will be paid out by mining giants BHP and Vale in connection with the 2015 Mariana disaster in which a tailings dam at the iron ore mine operated by their joint venture Samarco collapsed and unleashed a torrent of waste that killed 19 people and contaminated 400 miles of the Doce River.

Under the agreement, BHP and Vale, which have already been compelled to pay out about US$8 billion, will provide another US$23 billion over the next 20 years to affected communities and public authorities. The amounts cover water clean-up costs, health programs infrastructure repairs and improvements, and a flood response fund. Also included are funds for education, the needs of women, fishing, food security, and income support for vulnerable populations. The companies are, in effect, being compelled to finance a parallel social welfare system.

BHP and Vale both have histories of harmful impacts that extend well beyond the Mariana disaster. BHP, headquartered in Australia, took its current form as a result of the 2001 merger of the company previously known as Broken Hill Proprietary and Billiton, originally a Dutch company. It has been at the center of environmental controversies concerning its operations in countries such as Chile, Guatemala, India, and the United States. For example, in 2022 it was fined the equivalent of US$8 million by environmental authorities in Chile for damage caused by excessive water extraction in the Salar de Atacama salt flat.

Vale, headquartered in Brazil, was implicated in another even worse mining disaster in its home country. Three years after the Mariana incident, a tailings dam near Brumadinho in the state of Minas Gerais collapsed, releasing a mudflow that engulfed houses, farms and roads and killed more than 250 people, most of whom were company employees. The toxic deluge also destroyed 300 acres of native forest and polluted 200 miles of the Paraopeba River.

In 2021 Vale agreed to pay US$7 billion in compensation to the state government. It probably got off easy, given that evidence emerged suggesting that Vale executives had been warned about safety risks with the dam. In the wake of those revelations, Brazilian authorities brought homicide charges against the chief executive of the company, Fabio Schvartsman. Those charges were dismissed earlier this year, but relatives of the victims are seeking to have them reinstated.

Apart from the environmental penalties, Vale got in trouble with the U.S. Securities and Exchange Commission for making false and misleading statements to investors about the safety of its dams. In 2023 the company had to pay US$55 million to settle the matter.

The substantial penalties being paid in Brazil by BHP and Vale will provide needed relief to the affected communities, yet it is unclear whether the amounts are enough to get corporations with annual revenues in the $40-50 billion range to fundamentally change their ways.

Cigna SLAPPs the FTC

Pharmaceutical companies, the big pharmacy chains and the middlemen known as pharmacy benefit managers, or PBMs, have been taking pains to blame one another for the high cost of prescription drugs. It is not unusual for business groups with conflicting positions to engage in this sort of finger-pointing, but now a major PBM is attacking a federal regulatory agency for criticizing its practices.

In a highly unusual and objectionable step, Cigna, parent of PBM Express Scripts, has filed a lawsuit against the Federal Trade Commission, seeking to force the agency to retract a recent interim report depicting PBMs as “powerful middlemen inflating drug costs and squeezing main street pharmacies.”

The FTC report points out that the market for PBM services has become highly concentrated, and the largest PBMs are now owned by the largest health insurers (as in Cigna’s ownership of Express Scripts) or pharmacy chains (CVS control of Caremark). “As a result of this high degree of consolidation and vertical integration,” the report states, “the leading PBMs can now exercise significant power over Americans’ access to drugs and the prices they pay.”

Cigna is certainly within its rights to disagree with and criticize the report, as the company did in a full-page advertisement in the Wall Street Journal. Yet Cigna did more than that. Its lawsuit, filed in federal court in Missouri, accuses the FTC of defamation and of violating the company’s due process rights. It seeks to have the report expunged from the FTC website along with “any other relief the Court deems just and equitable.”

Although the complaint does not explicitly ask for monetary damages, the action bears a close resemblance to the SLAPP suits filed by corporations seeking to silence their critics by causing them severe financial harm. This kind of tactic is seen, for example, in the lawsuit being pursued against Greenpeace by the pipeline company Energy Transfer. Like the SLAPP suits brought against NGOs, the Cigna action seems designed to intimidate—both the FTC and by extension its other critics.

Cigna’s claim it has been defamed ignores the fact that the company’s track record is hardly unblemished. Violation Tracker contains more than 200 entries for Cigna and its subsidiaries, with total penalties of $746 million.

Express Scripts accounts for about $30 million of that total, stemming from cases such as a $3.2 million settlement with the Massachusetts Attorney General in 2022 to resolve allegations the company failed to follow prescription pricing procedures designed to keep costs down and prevent overcharges in the state’s workers compensation insurance system.

Accredo, a specialty pharmacy owned by Express Scripts, paid $60 million in 2015 to resolve federal allegations that it received illegal kickbacks, in the form of patient referrals and other benefits, from the pharmaceutical company Novartis in exchange for promoting refills for its drug Exjade.

It is unacceptable for Cigna, or any other company, to seek to muzzle a federal regulator through the use of the legal system. Hopefully, the court will see the danger of this lawsuit and dismiss it promptly.

Greenpeace Slaps Back

Asked to define the phrase Energy Transfer, most people would say it sounds like something they dimly recall from high school physics. Actually, it is the name of a giant corporation that owns the country’s largest petroleum transportation system, including the Dakota Access Pipeline (DAPL), which was the focus of intense protests in 2016.

Energy Transfer and DAPL are back in the news because a trial is set to begin in the latest phase of the company’s legal assault against opponents of the pipeline. Despite the protests led by the Standing Rock Sioux Tribe and other indigenous groups, the pipeline was completed and went into operation in 2017. That was in large part due to the intervention of the Trump Administration in one of its first acts. Energy Transfer CEO Kelcy Warren was a big contributor to Trump during the 2016 presidential race. This year he gave $5 million to a pro-Trump Super PAC.

Although it won the battle to build DAPL, Energy Transfer has been on a crusade against its adversaries. Initially, it targeted Standing Rock Sioux chairman Dave Archambault and other tribal leaders at the center of the protests. When that failed, it went after Greenpeace and has not relented. In doing so, it has mounted one of the most aggressive examples of what are known as SLAPP suits (strategic lawsuits against public participation)—legal actions meant to intimidate anti-corporate protests.

In 2017 Energy Transfer filed a federal racketeering suit against Greenpeace that made extravagant allegations that tried to depict the group’s legitimate criticisms of the company and DAPL as a violent criminal conspiracy. The complaint accused Greenpeace of “manufacturing a media spectacle based upon phony but emotionally charged hot-button issues, sensational lies, and intentionally incited physical violence, property destruction, and other criminal conduct.”

Greenpeace vehemently denied advocating or engaging in any violent acts, while also insisting it did not organize the protests but was simply supporting a campaign led by tribal groups. A federal judge threw out the racketeering case, but Energy Transfer has continued to pursue the matter at the state level and is seeking $300 million in damages.

The North Dakota complaint filed in 2019 employs much of the same overheated rhetoric as the unsuccessful federal action. It accuses Greenpeace and several co-defendants of pursuing an “extremist agenda — to attack and disrupt Energy Transfer’s business and its construction of DAPL — through means far outside the bounds of democratic political action, protest, and peaceful, legally protected expression of dissent.”

Yet the company focuses a great deal on such expressions of dissent, alleging that the defendants “engaged in large-scale, intentional dissemination of misinformation and outright falsehoods regarding Energy Transfer, DAPL’s environmental impact, and Energy Transfer’s extensive efforts to address the concerns of local North Dakota communities.”

It is language such as this that prompts Greenpeace to argue that the case represents a serious threat to First Amendment rights. If Energy Transfer is successful in pushing the idea that those criticizing its actions are guilty of defamation, that would indeed have a chilling effect on corporate accountability activism.

As Greenpeace points out, there is a lot to criticize about Energy Transfer even apart from DAPL. In Violation Tracker we document 383 instances since 2000 in which the company and its subsidiaries were fined or reached settlements in cases involving environmental, safety or other infractions. The associated penalties amount to $611 million.

Five of these cases were brought as criminal matters. These include a 2022 case brought by then-Pennsylvania Attorney General Josh Shapiro in which two Energy Transfer subsidiaries pleaded no contest to criminal water pollution charges relating to the release of large quantities of drilling fluids containing potentially hazardous substances in places where it could contaminate drinking water supplies. AG Shapiro stated that in bringing the case his office was “holding Energy Transfer accountable for their crimes against our natural resources.”

It is unclear whether Energy Transfer really believes the lawsuit will silence its critics. For its part, Greenpeace shows no sign of being intimidated and is defending itself forcefully, which is in keeping with its long track record of standing up to the powerful. Energy Transfer may have SLAPPed, but Greenpeace is slapping back.

For more details on the lawsuit, see this website just launched by Greenpeace.

What Does a Billion-Dollar Settlement Accomplish?

The news that the Dutch company Royal Philips has just agreed to pay $1.1 billion to settle U.S. litigation concerning defective breathing machines was reported on page B3 of the print edition of the Wall Street Journal and page B5 of the New York Times. In other words, it was not considered a major story of the day.

There was a time when a billion-dollar class action settlement would be front-page news and might have an impact on a company’s stock price and its reputation. That was especially true with regard to the $368 billion settlement the tobacco industry reached with state governments. That deal merited a banner headline stretching across the entire front page of the Times in 1997.

A great deal of attention was also paid to the multi-billion settlements reached in 2012 with BP with regard to the Deepwater Horizon disaster and in 2016 with Volkswagen in connection with its emissions cheating scandal.

These days, major settlements receive less notice despite a spate of what might be called mega-settlements—those with a price tag of $5 billion or more. Last year, Johnson & Johnson agreed to pay around $9 billion to settle lawsuits alleging that its talcum powder causes ovarian cancer. 3M agreed to pay $6 billion to settle litigation over hearing loss said to be caused by defective combat earplugs supplied to members of the military.

This year 3M agreed to pay $12.5 billion to settle litigation alleging it was responsible for contaminating thousands of public water systems with dangerous PFAS chemicals. Visa and Mastercard agreed to a $30 billion settlement of antitrust litigation concerning the fees they charge to merchants.

A mega-settlement has also appeared in Brazil, where joint venture partners Vale and BHP have agreed to provide an estimated $25 billion to communities ravaged by the 2015 collapse of a tailings dam.

These examples are limited to private litigation. Companies are also paying billions in cases brought by government agencies, especially with regard to the opioid crisis.

There are positive and negative aspects to these settlements. On the plus side, it is good that giant corporations are being compelled to pay sizeable compensation packages to groups of people harmed by their misconduct. It is true that a big chunk of these payouts goes to plaintiffs’ lawyers, though the hope it that they will use the proceeds at least in part to fund future class actions.

The problematic part is that corporations can view the settlements—whose size often falls short of the estimated harm caused by the company—as a tolerable cost of doing business. They may then feel little pressure to change their practices in a fundamental way.

Major litigation is not just a way to punish corporations financially for wrongdoing. It is supposed to serve as a deterrent against future bad acts. That fact seems to be getting forgotten as companies regard settlements as mere transactions, and the public pays less attention. Normalization of corporate misconduct will result in more of it.

Biometric Battles

The Alabama IVF court ruling and the move for a national abortion ban highlight the rising threat to reproductive freedom. Another battle over bodily autonomy is taking place in the corporate world. It revolves around the question of whether companies have the right to gather biometric information about employees or customers without their full consent.

Collection of fingerprints and voiceprints is not as oppressive as restricting the right to terminate a pregnancy, but it raises a legitimate privacy concern nonetheless. This is especially true as more companies embrace facial recognition, iris scanning and the like.

Disputes over biometric data collection frequently end up in court, where plaintiff lawyers bring class action claims and often win substantial settlements. For example, the Presence Health Network in Illinois just agreed to pay $2.6 million to settle litigation alleging that the privacy rights of employees were violated by requiring them to scan their fingerprints for timekeeping without first obtaining consent.

Violation Tracker documents 30 similar fully resolved lawsuits with total settlements of $1 billion. These cases are typically brought under the Illinois Biometric Information Privacy Act, a 2008 law that is the strictest in the nation. BIPA cases can be brought in state court in Illinois, but in certain circumstances they can be filed in federal court.

Some of the biggest settlements have come in federal cases. The largest of all is the $650 million payment by Facebook in 2021 to resolve claims that its collection of facial data from users violated BIPA. The following year TikTok paid out $92 million in a similar case.

The largest state court settlement was the $100 million paid by Google in connection with facial data collected by its photo service. In another state case, Six Flags agreed to pay $36 million to resolve claims it improperly collected fingerprint data from pass-holders.

Large employers which have entered into biometric settlements include Walmart, which paid $10 million to resolve claims it improperly collected worker handprints, and the Little Caesar pizza chain, which agreed to pay nearly $7 million to settle litigation alleging it violated BIPA by using a fingerprint-based timekeeping system without getting informed consent from employees.

BIPA lawsuits rarely go to trial. The risks for companies of refusing to settle are illustrated by a case brought against BNSF by a class of 44,000 truck drivers who claimed the railway company improperly collected their fingerprints. In 2022 a federal jury found in favor of the plaintiffs and awarded up to $228 million in damages. That award was thrown out for technical reasons, but the company recently agreed to settle the matter for $75 million.

Cases arising out of BIPA have prompted other states to consider adopting their own biometric privacy legislation, yet none have begun to match the Illinois law. Efforts in Congress to pass a national law have also made little progress.

For now, BIPA class actions are the main thing standing in the way of the corporate effort to turn us all into human bar codes.

Consumer Deception

Large companies like to give the impression they put customer satisfaction above all else. They constantly tout their rankings in surveys such as those conducted by J.D. Power.

Yet it also turns out they are frequently sued by groups of customers for deceptive practices. Over the past two decades, major companies have paid out over $25 billion in damages and settlements in class action and multi-district consumer protection lawsuits filed throughout the United States. Some corporations have been involved in multiple cases, and a few have had total payouts of more than $1 billion.

These findings come from a compilation of consumer protection lawsuits prepared for inclusion in Violation Tracker. Using court records, we have documented more than 600 successful legal actions dating back to the beginning of 2000. These are only cases in which a company was accused of cheating its customers by overcharging for goods and services or engaging in false advertising. This list does not include cases involving issues such as product safety or privacy violations, which were previously added to Violation Tracker. It also does not include cases brought by government agencies, which were also already in the database.

One thing jumps out from the new list of cases: banks, insurance companies and other players in the financial services sector account for a far larger portion of the penalties than any other part of the economy: over $14 billion in 249 cases. This is more than 55 percent of the penalty total and 40 percent of the cases.

Half of Big Finance’s penalty total comes from a handful of companies. Bank of America paid out over $3 billion in 29 cases. JPMorgan Chase racked up $2.3 billion in penalties in 26 cases. Wells Fargo’s penalty total is $1.3 billion from 21 cases. State Farm Insurance ranks next with $669 million from six cases.

Here are just a few of the abuses Bank of America has been accused of committing: imposing excessive overdraft fees on checking accounts; charging military customers interest rates above federally mandated limits; enrolling customers in credit protection plans without their consent; applying late fees on credit card customers who actually paid on time; and forcing home mortgage customers to purchase excessive amounts of flood insurance;

Outside the financial sector, the biggest penalty totals belong to Dominion Energy ($2.5 billion), Western Union ($508 million), Apple Inc. ($462 million), BP ($414 million) and General Motors ($389 million). Apple’s alleged transgressions ranged from distributing iPhone software updates that slowed the device’s performance to the renewal of app subscriptions without customer consent.

While most of the cases on the list involve prices, fees and other monetary practices, about 100 relate to the quality of the goods and services being sold. Over $1 billion has been paid out by companies accused of false or deceptive advertising and marketing. The single biggest penalty of this type is linked to Acer America, which paid an estimated $280 million to resolve allegations that it misled customers about the Windows operating system installed on its laptop computers.

Behr and its parent Masco paid over $100 million to settle claims that they falsely advertised their wood sealants as protecting against mildew damage. Many of the smaller settlements involved allegations that producers of food and personal-care products falsely advertised their products as organic or natural.

While many of the corporate defendants in these cases will insist they settled out of expedience, it seems clear that many large companies have a tendency to engage in dubious practices. If they are truly concerned about customer satisfaction, putting an end to these practices is a good way to begin.

The Price of Not Heeding the WARN Act

In 2020 a furniture company called Flexsteel Industries laid off about 300 workers at its plants in Dubuque, Iowa and Starkville, Mississippi. According to a class action lawsuit filed on behalf of the employees, Flexsteel violated federal law by failing to provide either severance pay or 60 days’ notice.

The law in question is the Worker Adjustment and Retraining Notification Act of 1988, better known as the WARN Act. Oddly, the law does not provide for enforcement by the U.S. Department of Labor. Instead, workers must usually take a non-compliant employer to court. They have done so many times and have often won substantial settlements.

WARN Act class action lawsuits are the latest category of private litigation to be added to Violation Tracker. The newly posted update to the database includes more than 100 WARN settlements totaling over $225 million over the past two decades. About half of the settlements were for $1 million or more. That includes the $1.3 million won by the Flexsteel workers.

Overall, the settlements range from $100,000 to $35 million, with the highest amount coming in a 2011 case involving the now-defunct semiconductor company Qimonda. The second largest was $15 million, in a case involving Taylor, Bean & Whitaker Mortgage Corp.

These settlements, like about three-quarters of the cases collected, came while the company was in bankruptcy proceedings. Many employers mistakenly thought that a bankruptcy filing exempted them from complying with the provisions of the WARN Act.

Although bankruptcy cases can drag on for years, victims of WARN Act non-compliance are often able to receive more timely relief by filing what are known as adversary proceedings. These are the equivalent of civil lawsuits brought in federal district courts and can get resolved much sooner than other bankruptcy matters.

While most WARN Act cases are brought against direct employers, some of the settlements involve private equity firms that controlled the company. For example, in 2019 Apollo Global Management and a human resources service paid $3 million to resolve a case brought by about 1,000 workers laid off from Apollo’s portfolio company Classic Party Rentals.

Additional WARN Act cases are making their way through the courts. Tesla is the target of one of those suits, filed earlier this year on behalf of those terminated as part of the company’s practice of periodically weeding out workers considered to have performance issues. Tesla is arguing that the workers should not be able to bring a class action, given that they signed employment agreements providing for the use of arbitration to resolve disputes.

Some employers have tried to argue that layoffs that took place during the pandemic should not be covered by the WARN Act, given that the law has an exception for natural disasters. A federal appeals court, however, ruled in June that Covid should not be lumped together with events such as earthquakes and floods mentioned in the legislation.

If the U.S. economy continues to move in the direction of a downturn, layoffs will become more common and the protections of the WARN Act—and WARN class actions—will help workers deal with the slump

Note: The Violation Tracker update also includes the addition of 10,000 wage and hour cases brought by the California Labor Commissioner’s Office over the past two decades.

Holding Corporations Accountable for Defective Products

A federal judge in Michigan just shot down a motion by Fiat Chrysler to derail litigation alleging it sold 800,00 vehicles with faulty gearshifts. The company could end up paying many millions in damages. At about the same time, a federal judge in New York gave final approval to a $5.2 million settlement of class action litigation claiming that DevaCurl products caused hair loss and scalp damage.

These are two recent examples of actions in an arena in which corporations are held accountable for causing harm to their customers: product liability lawsuits. These kinds of court cases are the latest category of class-action and multi-district litigation to be added to Violation Tracker.

The database now contains entries covering 120 of the most significant product lawsuits of the past two decades in which corporations paid substantial damages or a monetary settlement to large groups of plaintiffs. The total paid out by the companies in these cases is more than $54 billion.

Fourteen of the cases involved payouts of $1 billion or more, the largest of which was the $9.6 billion Bayer agreed to pay to resolve tens of thousands of suits alleging that the weedkiller Roundup, produced by its subsidiary Monsanto, causes cancer. Bayer, which produces pharmaceuticals as well as chemicals, was involved in five other cases on the list, bringing its aggregate payout to more than $12 billion, the most for any corporation.

Next in line are Pfizer and Johnson & Johnson, each with payout totals of about $5.5 billion for cases involving harm caused by products ranging from hip implants and diabetes drugs to heartburn medication and talcum powder. These two companies and other pharmaceutical and medical equipment producers account for one-third of the cases on the list and half of the payout total. The giant settlements involving opioid producers and distributors are not included here, since they are treated as matters of illegal marketing rather than defective products—and because those cases are most often brought by state attorneys general rather than as private litigation.

The motor vehicle industry also features prominently, with 32 cases and total payouts of $9 billion. The largest portion of that is linked to Toyota, with $5.3 billion in payouts in cases involving issues such as unintended acceleration, defective airbags and premature corrosion. Volkswagen has actually paid out much more in class action settlements due to its emissions cheating scandal, but Violation Tracker categorizes those as environmental rather than product liability cases.

Among the remaining cases are a $1 billion settlement by the German company Knauf involving drywall that emitted noxious odors and a $500 million settlement by Sears Roebuck of allegations that it sold stoves that had a tendency to tip over.

Yet perhaps the most surprising of the cases were two involving the Brazilian company Taurus, which paid a total of $277 million to resolve allegations that it produced firearms with a defect that caused them to go off when dropped. The irony is that gunmakers are shielded from liability when their weapons are used in criminal activities.

Product liability class action and multi-district cases—like similar litigation involving issues such as toxic chemicals, wage theft and privacy violations—are reminders that the courts are an important complement to the regulatory system in addressing corporate misconduct.

Targeting Polluters in the Courts

When it comes to dealing with egregious corporate polluters, we tend to think first about what the EPA and the Justice Department are doing to address the problem. Yet there is another way in which environmental miscreants can be called to account: private litigation.

For the past half century, a series of major lawsuits have served as the means by which large corporations have been compelled to change many of their worst environmental practices and compensate victims of those abuses.

Some of these cases have become legendary and have inspired Hollywood movies. The 2000 film Erin Brockovich told the story of a legal clerk who was central to a successful lawsuit against the utility Pacific Gas & Electric for contaminating the water supply of a California town with the carcinogen hexavalent chromium. The 2019 movie Dark Waters dramatized the efforts of attorney Robert Bilott to get DuPont to take responsibility for exposing residents of a West Virginia community to highly toxic chemicals called PFOAs.

The latest expansion of Violation Tracker includes entries on the PG&E and DuPont cases as well as 100 other lawsuits resolved over the past two decades. As a result of these actions, dozens of major corporations have paid out a total of more than $15 billion in settlements around the country.

These are all group actions in which multiple plaintiffs sued the companies for widespread harm. Initially, major environmental lawsuits were brought as class actions. In the 1990s the U.S. Supreme Court put significant restrictions on such lawsuits, but trial lawyers have been able to achieve substantial settlements through the system of multi-district litigation in which cases from various jurisdictions are transferred to a single federal court with the aim of reaching a global settlement. MDLs are even more common in product liability cases (which Violation Tracker will tackle next).

Among the 104 environmental cases just added to the database, there are class actions and MDLs as well as suits brought by environmental organizations on behalf of communities.

Topping the list of settlement amounts are the cases brought in connection with the 2010 Deepwater Horizon catastrophe in the Gulf of Mexico. BP agreed to a $7 billion in 2012 settlement, which was separate from the more than $20 billion it later paid out to federal and state governments. Halliburton, also implicated in the disaster, paid a $1 billion private settlement. The other giant case was the $1.6 billion settlement Volkswagen reached with its dealerships affected by the automaker’s emissions cheating scandal. Like BP, VW also paid billions more in government settlements.

The company with the next highest total is Exxon Mobil, which has paid out more than $590 million in six different private environmental actions. Most of this amount came from a long-running lawsuit stemming from the 1989 Exxon Valdez oil spill off the coast of Alaska. The company was originally hit with a $5 billion punitive damages award, but it appealed all the way to the Supreme Court, which in 2008 slashed the amount to $507 million.

Four of Exxon’s other cases involved the gasoline additive MTBE. Communities and governments in various parts of the country have sued numerous oil companies to hold them responsible for MTBE contamination of water supplies from leaking underground oil tanks.

Another issue involving multiple companies is that of the PFOAs mentioned above in connection with DuPont. A variety of corporations have been sued for contaminating water supplies with these hazardous substances, also known as PFAs or forever chemicals because they do not break down in the body or the environment. DuPont and its spinoffs Chemours and Corteva have paid out hundreds of millions of dollars in these cases, while firms such as 3M and Georgia-Pacific have paid smaller amounts. Other suits are pending.

The dozens of other environmental cases have involved a wide range of toxic substances such as PCBs, dioxin, arsenic, TCE and vinyl chloride. The average of the 104 settlements is $150 million. Sixteen corporations have settlement totals above $100 million.

Missing from the list are major cases involving the role of corporations in exacerbating the climate crisis. Various suits have been brought, often by state and local governments and framed as shareholder actions, but so far none have resulted in significant monetary settlements. That is likely to change as the crisis grows worse and corporations are held culpable. When that happens, Violation Tracker will document the results.

Note: I would like to thank Suzanne Katzenstein and a group of her students at the Duke University Sanford School of Public Policy, who helped identify some of the environmental lawsuits discussed above.

Targeting Gunmakers in the Courts

Among the scores of industries covered in Violation Tracker, one of the most under-represented is the business of producing firearms. That’s not because gunmakers are particularly virtuous, but rather because there are few laws and regulations for them to violate.

Federal oversight of the industry is pretty much non-existent. The few penalties that have been imposed on companies such as Remington, Beretta, Colt’s Manufacturing, Smith & Wesson, and Sturm, Ruger have had nothing to do with their specific activity. Instead, they have been imposed by agencies such as OSHA that oversee companies of all kinds. The penalty total for each of these firms is no more than a few hundred thousand dollars—a trivial amount for an industry whose products do so much harm.

The other arena in which the industry has enjoyed near impunity is the court system. That’s largely due to the 2005 Protection of Lawful Commerce in Arms Act, which prevents dealers and manufacturers from liability when guns are used in shootings and other criminal activities.

Ironically, gun companies are still considered liable when their products are defective. For example, in 2016 the Brazilian gunmaker Forjas Taurus agreed to pay $239 million to settle a class action brought in federal court in Florida. The plaintiffs had alleged that its guns fired unintentionally when dropped.

Various attempts have been made to get around the industry’s liability shield. A lawsuit brought against Remington by the families of the victims of the Sandy Hook massacre in Connecticut was able to proceed by using the state unfair trade practices law. The case still dragged on for years, though it was recently reported that Remington is offering to settle the matter for $33 million. That’s not much, but it could serve as a stepping stone to more appropriate damages in other cases.

Another novel approach is being taken in a lawsuit recently filed in federal court in Massachusetts by the government of Mexico against ten U.S. gunmakers. The suit accuses the companies of facilitating the flow of weapons to the drug cartels causing so much havoc in Mexico. It argues that the federal liability shield does not apply, since the harm took place in another country.

The lawsuit is considered a long shot, but if nothing else the case may expose more details about the questionable practices of the industry. The complaint has already highlighted the brazen practice by one gunmaker of engraving the image of Emilio Zapata on one of its models to appeal to Mexican buyers. One of those pistols was used to kill a Mexican investigative reporter.

There are signs that the real purpose of the lawsuit is to pressure the U.S. government to put restrictions on the firearms trade. The suit seeks to do this by equating cross-border gun trafficking from the U.S. to the drug trafficking from Mexico that American officials frequently decry. Significant change is not likely to happen any time soon, but meanwhile any challenge to the gun’s industry’s impunity is welcome.