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A proposed plan to replace the triggers in millions of allegedly defective Remington rifles is "designed to fail," a leading expert on class action settlements said.
Philadelphia-based consultant Todd Hilsee said the proposal has been crafted by the company and plaintiffs' attorneys largely to address "Remington's public relations concerns" instead of properly notifying gun owners that there may be a problem.
The allegations in a 30-page letter from Hilsee, who helped write the federal court rules on notifying victims in class action cases, could further threaten a tenuous settlement agreement involving Remington's popular Model 700 bolt-action rifle, which CNBC investigated in a 2010 documentary. Dozens of lawsuits have alleged that for decades, Remington has covered up a deadly design defect that allows the guns to fire without the trigger being pulled, resulting in hundreds of injuries and at least two dozen deaths.
Remington has denied the allegations and continues to maintain that the guns are safe. Nonetheless, the company agreed in 2014 to the landmark settlement covering some 7.5 million rifles including the Model 700 and a dozen other firearms with similar designs. At the time, the company said it was agreeing to the settlement in order to avoid protracted litigation.
In his scathing letter to the judge overseeing the case, Hilsee wrote that the settlement—and what he called an "inadequate" plan to notify the public—risked leaving millions of allegedly defective guns in the public's hands, with little or no recourse left for accident victims.
"The notice as written reduces safety concerns about the guns, which would have caused fewer people to seek replacement, less money being spent by Remington, and fewer potential deaths and injuries being prevented," Hilsee wrote.
The letter came on the eve of a key hearing Tuesday in Kansas City to consider a new notification plan developed by Remington and plaintiffs' attorneys. U.S. District Judge Ortrie Smith ruled last December that their original plan was inadequate because only around 2,300 gun owners had filed claims.
Hilsee said the new plan was no better than the first one, and urged the judge to send the parties back to the drawing board yet again. Otherwise, he wrote, "I'm afraid the Court and Class will get stung."
Attorneys for Remington did not respond to multiple e-mails over the weekend seeking a comment.
Hilsee reserved some of his harshest criticism for plaintiffs' attorneys, who, he wrote, "were appointed to represent fathers and mothers of kids" killed in Remington rifle accidents. Yet, he said, the attorneys agreed to a "defective" plan to notify the public. Under the proposed settlement agreement, the attorneys stand to collect $12.5 million in fees regardless of how many gun owners get their triggers replaced.
Hilsee also accused the plaintiffs' attorneys of squandering multiple opportunities to publicize the trigger replacement offer. He said one such opportunity occurred in December, when CNBC presented a follow-up investigation on the Remington rifles and the proposed settlement. Hilsee said the report was "the proverbial 'home run' of publicity for a settlement," yet the plaintiffs' attorneys declined to comment for the story.
Hilsee wrote that while it was one thing for Remington to continue maintain its guns are safe, "It's quite another thing for Class Counsel to not comment, when speaking up would serve Class members' interests."
A lead attorney for the plaintiffs spoke up in response to Hilsee's letter.
"His letter frightens me," attorney Mark Lanier said in an e-mail. "In effect, he is saying, 'scuttle the settlement and leave the dangers on the street because I think notice should be done my way'."
"He clearly hasn't represented hunters, and doesn't understand the response numbers are not indicative of deficient notice," Lanier writes. "They are indicative of gun owners who don't want to part with their guns regardless."
Nonetheless, on orders from Judge Smith, attorneys for both sides submitted a new notice plan in June. In addition to the direct mail and print advertising promised in the initial proposal, the new plan includes commercials on conservative talk radio programs, internet banner ads, and a social media campaign using Facebook. The parties said they have engaged a former Obama campaign manager, Jim Messina, to administer the plan.
But Hilsee said in his letter that the new plan was also doomed to fail, noting that only half of rifle owners even used Facebook; fewer still would see the ads. He alleged that the advertising metrics cited in the revised plan were inflated. And he said the use of a former Obama aide in the campaign was not what it seemed.
"The implication that past political campaign successes can be repeated here, is belied by the fact that the 2012 Obama campaign spent $483 million on advertising, mostly on TV," Hilsee wrote.
He said a simpler claims process, more direct language, and more targeted marketing—including possibly using theNational Rifle Association's mailing list—could result in a campaign that reaches 95 percent of owners, which he said is the industry standard in high-stakes class action cases such as this one.
In a telephone interview, Hilsee said he felt moved to write the letter not because of any personal involvement in the case or any political concerns—he said he had never taken a public position on gun control—but because of much broader legal issues, including proposals in the federal courts to ease some of the requirements for notifying potential victims in class action cases.
"The entire class action field is watching this case with astonishment," he said.
"This is the case where you would turn over every rock to find class members," he said. "If we can have this kind of notice in this kind of case, the hope for good class action notice is lost."
But Lanier said the fact that the case involved guns made it unique. Not only are many gun owners wary of turning over their rifles, but many also believe they can remedy the problem on their own by practicing better gun safety.
"I want every gun fixed," he said. "But a bunch of gun owners are not going to do it, even if you knock on their door."
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