We weren’t expecting to find anything bloggable when we reviewed the Supreme Court’s recent unanimous decision in Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos, ___ U.S. ___, 2025 WL 1583281 (U.S. June 5, 2025). But we were struck by the familiarity of the allegations of illegal marketing that the Court in S&W held could not be passed off as “aiding and abetting.” These were the same tired and repetitive allegations of purported “illegal marketing” by independent actors in the distribution chain that we have seen in so many drug/device cases – sometimes masquerading as “public nuisance.”
We think our clients can use S&W against such allegations, at least by analogy.
Briefly, an independent nation, Mexico, thought it would be a bright idea to sue various manufacturers of firearms in a civil suit, claiming that the manufacturers were liable, on an “aiding and abetting” theory, for gun violence in Mexico. These allegations were advanced as “aiding and abetting” because of a preemptive statute, the Protection of Lawful Commerce in Arms Act, that had a “predicate exception” capable of being satisfied by “aiding and abetting someone else’s firearms offense.” Id. at *4.
Scrubbing allegations of firearms-specific facts, the plaintiff claimed:
- The defendant manufacturers were “willful accessories” to unlawful sales of their products by retail dealers, that in turn enabled their customers to acquire and use those products illegally.
- The defendants supplied their products to retail dealers whom they knew illegally resold to some customers.
- The defendants used a multi-tier distribution system, selling to wholesalers, who sold to retail dealers, who resold to customers.
- A small minority of the retailers were responsible for most of the harmful sales, which often violated federal laws.
- The defendants knew who the rogue retailers were and that they engaged in prohibited practices, but to boost profits they continued to supply those retailers.
- By choosing not to stop selling their products to known rogue retailers, the defendants became liable for the rogue retailers’ illegal conduct.
- The defendants could have, but did not, imposed restraints on their supply chains that would have prevented illegal sales.
- They could have prohibited others from making bulk sales of their products to individual customers.
- They could have prohibited dealers from retailers from selling products in ways that tend to ignore regulatory requirements.
- More generally, the defendant manufacturers could have implemented processes for monitoring or supervising their retailers’ sales practices, that would have minimized the retailers’ illegal sales.
- Product design and marketing was adapted to appeal to potential illegal users of their products.
S&W, 2025 WL 1583281, at *4-5 (citations and quotation marks omitted).
These kind of allegations are no different than many attempts that we’ve seen for years to hold drug and device manufacturers liable for purported downstream misconduct – going back to the off-label marketing claims made in the Bone Screw litigation, and currently continuing with various “public nuisance” claims.
Along the way, we have seen a few...
