By Andrew Willinger
On October 4, 2024, the Supreme Court granted certiorari in Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos. The case involves claims brought by the government of Mexico against a group of U.S. gun manufacturers seeking to recover for the costs of gun violence in Mexico that the Mexican government alleges are caused by the gunmakers’ sales and distribution practices that facilitate cross-border gun trafficking.
If the Supreme Court holds that Mexico failed to allege the type of violation contemplated in the predicate exception, that could narrow the scope of predicate-exception litigation substantially to instances where the gun manufacturer itself engages in illegal conduct (rather than aiding and abetting downstream illegal conduct). And such a decision would have major consequences for domestic PLCAA litigation because the new wave of state public nuisance statutes often specifically contemplate that a gunmaker’s distribution practices can give rise to liability even after the point of sale. Another avenue by which the Court could reverse is to focus on the unique causal chain in the case that includes cross-border gun trafficking and harm caused by foreign cartels with American-manufactured firearms. This route seems less likely to broadly unsettle things at the state level, as it is at least possible for the Court to write an opinion that emphasizes how unique the facts of this case are. In most domestic litigation, there simply will not be the same number of intervening actions because the harm caused will be closer to home. That said, it will be important to watch whether the Court seems receptive to the gunmakers’ argument that Mexico’s damages are merely derivative of the harm suffered by individual people harmed by gun violence in the country. That line of argument would presumably hamstring efforts by state attorneys general to pursue predicate-exception litigation against gunmakers based on harm to the public.
64 South Texas Law Review 97 (2025), 5p.
