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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

--------------------------------------------------------------X

NATIONAL ASSOCIATION FOR THE

ADVANCEMENT OF COLORED PEOPLE

(NAACP),

Plaintiff, 99 Civ. 3999 (JBW)

99 Civ. 7037 (JBW)

-against-

AMERICAN ARMS, INC./ACUSPORT CORP.,

et al.,

Defendants.

--------------------------------------------------------------X

DEFENDANTS' PROPOSED FINDINGS

OF FACT AND CONCLUSIONS OF LAW

Dated:  June 9, 2003

FINDINGS OF FACT 1

I. Procedural Posture 1

II. The Parties 3

III. Related Litigation 4

IV. Structure of Firearms Markets 4

V. Regulation of the Firearms Markets 4

VI. Tracing 7

A. ATF Disclosure of Trace Data 8

B. Limitations of Trace Data 9

C. Use of Trace Data — Generally 11

D. Use of Trace Data — Focused Inspections 13

VII. Firearm Industry Cooperation with ATF 13

VIII. Defendants' Compliance with Laws and Regulations 15

IX. Criminal Acquisition of Firearms 16

X. Plaintiff's Alleged Injuries 17

XI. Declining Homicide Rates 20

XII. The Absence of Evidence Tying Defendants' Conduct to Plaintiff's Alleged Injuries 20

XIII. Plaintiff's Flawed Statistical Analysis of the Trace Database 22

A. Non-Random Sample 22

B. Age Bias in the Selection of Firearms to Trace 23

C. FTS Data Are Collected Haphazardly 25

D. Changing Methods and Standards of FTS Data Collection 25

E. Plaintiff's Expert's Misuse of the FTS Database 27

F. Ms. Allen's Use of Other Unreliable Data 28

1. Smith & Wesson Warranty Card Information 28

2. Plaintiff's Dealer Survey 29

G. Ms. Allen's Flawed Statistical Methods 30

1. Manufacturer Practices Regression 30

2. Dealer Indicators 32

3. Traces Related to Straw Purchases 33

4. Alleged Problem Dealer Groups 34

5. Flow of Guns 35

6. Percent of Guns Used in Crime 36

7. Homicides and Number of Dealers 37

XIV. Dr. Andrew's Analyses of the FTS Database 38

XV. Dr. Gundlach's Analysis of Defendants' Practices 40

CONCLUSIONS OF LAW 43

I. Standing — General 43

II. Standing — Direct 44

III. Standing — Representational 48

IV. Diversity Jurisdiction 50

V. Personal Jurisdiction 51

VI. Res Judicata 51

VII. Role of Advisory Jury 55

VIII. Public Nuisance — General 55

IX. Public Nuisance — Burden of Proof 57

X. Public Nuisance — Elements 57

XI. Public Nuisance — Unreasonable Interference 59

A. Negligence Theory 59

B. Intentional Conduct Theory 62

XII. Public Nuisance — Causation 64

A. Remoteness 65

B. Causal Connection 67

XIII. Public Nuisance — Special Injury 67

XIV. Injunctive Relief 68

XV. Commerce Clause 69

XVI. Separation of Powers 71

XVII. Comity 71

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

--------------------------------------------------------------X

NATIONAL ASSOCIATION FOR THE

ADVANCEMENT OF COLORED PEOPLE

(NAACP),

Plaintiff, 99 Civ. 3999 (JBW)

99 Civ. 7037 (JBW)

-against-

AMERICAN ARMS, INC./ACUSPORT CORP.,

et al.,

Defendants.

--------------------------------------------------------------X

DEFENDANTS' PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW

THE MANUFACTURER, IMPORTER AND DISTRIBUTOR DEFENDANTS SUBMIT THE FOLLOWING PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW FOLLOWING THE TRIAL OF THIS MATTER.

Findings of Fact

I. PROCEDURAL POSTURE

Plaintiff, the National Association for the Advancement of Colored People ("NAACP"), filed Civil Action No. 99 Civ. 3999 (JBW) on or about July 16, 1999, against approximately 80 manufacturers and importers of firearms. (Complaint in 99 Civ. 3999.)

The NAACP filed Civil Action No. 99 Civ. 7037 (JBW) on or about October 28, 1999, against approximately 50 distributors of firearms. (Complaint in 99 Civ. 7037.)

By order of the Court on May 23, 2002, the two actions were consolidated and plaintiff filed a Fifth Amended and Consolidated Complaint (cited herein as "Fifth Am. Comp.") on or about June 10, 2003. (Fifth Am. Comp.)

At a conference with counsel on September 9, 2002, the Court indicated its intention to employ an advisory jury to try plaintiff's public nuisance claim, which was later confirmed in a written order. (See Oct. 1, 2002 Order.)

Selection of the twelve member advisory jury commenced on March 24, 2003, and opening statements were given on March 31. (Tr. at 70:23 – 221:9.)

Plaintiff presented its direct case from April 1 (Tr. at 269:7) through April 28 (Tr. at 3630:17-21); defendants presented their evidence from April 28 (Tr. at 3640:9) through May 5 (Tr. at 4475:18-20); and plaintiff presented a rebuttal case from May 5 (Tr. at 4476:16) into May 6 (Tr. at 4622:8). Following summations, the case was presented to the jury on May 8. (Tr. at 5103:8.)

On May 14, 2003, the advisory jury concluded its deliberations and, for each company listed on the verdict sheet, indicated either that the party was "liable" or "not liable" or that the jury had "no verdict" because at least ten jurors could not reach agreement. (Court Exhibit 3 of 5/14/03; Tr. at 5190:11-25.)

As to 45 of the defendants, the jury returned a verdict of "not liable." (Tr. at 5193:9 – 5200:23.) Those defendants were Arms Technology, Inc.; Bangers, LP; Bersa S.A.; Bill Hick's & Co.; Brazas Sporting Arms, Inc.; Braztech International L.C.; Browning Arms Co.; Camfour, Inc.; Carl Walther GmbH; Century International Arms, Inc.; Charco 2000, Inc.; Chattanooga Shooting Supplies, Inc.; Colt's Manufacturing Company, Inc.; Ceska Zbrojovka, A.S.; CZ-USA, Inc.; Davidson's, Inc.; Eagle Imports, Inc.; European American Armory Corp.; Excel Industries; Fabbrica d'Armi Pietro Beretta S.p.A.; Faber Bros., Inc.; Glock Ges.m.b.H.; Glock, Inc.; Forjas Taurus SA; Heritage Manufacturing, Inc.; Import Sports, Inc.; Israel Military Industries, Ltd.; K.B.I., Inc.; Kel-Tec CNC Industries, Inc.; Kiesler's Police Supply, Inc.; Lew Horton Distributing Company, Inc.; L.W. Seecamp Company, Inc.; Magnum Research, Inc.; North American Arms, Inc.; Para-Ordnance, Inc.; Para-Ordnance Mfg. Inc.; Riley's, Inc.; Ron Shirk's Shooters Supply; Sigarms Inc.; SIG/Sauer; SGS Importers International Inc.; Fratelli Tanfoglio S.n.c.; Walter Craig, Inc.; Williams Shooters Supply, Inc.; and Zanders Sporting Goods, Inc.

As to 23 of the defendants, the jury reached "no verdict." (Tr. at 5193:9 – 5200:23.) Those defendants were AcuSport, Inc.; Alamo Leather Goods, Inc.; Beemiller, Inc., d/b/a Hi-Point Firearms; B.L. Jennings, Inc.; Bryco Arms, Inc.; Dixie Shooters' Supply, Inc.; Ellett Brother, Inc.; Euclid Avenue Sales Co.; Haskell Manufacturing, Inc.; Hicks, Inc.; Interstate Arms Corp.; Lipsey's, Inc.; Lorcin Engineering Co., Inc.; MKS Supply, Inc.; Phoenix Arms; RSR Group, Inc.; Scott Wholesale, Inc.; Smith & Wesson Corp.; Sturm, Ruger & Co., Inc.; Southern Ohio Gun, Inc.; Sports South, Inc.; Taurus International Manufacturing, Inc.; and Valor Corporation.[1]

II. The Parties

Plaintiff, the NAACP, is a corporation organized under the laws of the State of New York with its headquarters in the State of Maryland. (Fifth Am. Comp. ¶ 10.)

The NAACP is a national membership organization with members in all 50 states. (Fifth Am. Comp. ¶ 10; Tr. at 271:11-13.)

Defendants are either manufacturers, importers or distributors of firearms and are citizens of at least 30 states or a number of foreign countries, but none of which are citizens of either the States of New York or Maryland. (Fifth Am. Comp. ¶¶ 18 – 273.)

III. Related Litigation

The Court has taken judicial notice of the complaint filed in People of the State of New York v. Sturm, Ruger & Co., No. 4502586/00 (N.Y. Sup. Ct. filed June 26, 2000). (Tr. at 4639:16 – 4640:4.)

The Court has taken judicial notice of the New York Supreme Court decision dismissing People of the State of New York v. Sturm, Ruger & Co., No. 4502586/00 (N.Y. Sup. Ct. Aug. 10, 2001), appeal pending. (Tr. at 4639:16 – 4640:4.)

The Court deemed all defendants' answers amended to assert the affirmative defense of res judicata. (Tr. at 4658:11–18.)

IV. Structure of Firearms Markets

The firearms market consists of a primary and a secondary market. (Tr. at 689:19–22.)

The primary market consists of transactions through which new firearms move from manufacturers or importers through distributors and retailers to a first retail purchaser. (Tr. at 690:12–19; 768:14–21.)

The secondary market is made up of private transactions among non-federally licensed individuals. (Tr. at 689:19–23; 769:4–9; Def. Exh. 92.)

More firearms are sold in the secondary market than in the primary market. (Tr. at 689:19–23.)

No defendants in this case are part of the secondary market. (Tr. at 768:14 –769:9.)

V. Regulation of the Firearms Markets

The firearms industry is comprised of a tiered system of regulated federal firearms licensees ("FFLs"). (Tr. at 419:10 – 420:5.)

The Gun Control Act of 1968 charges the Bureau of Alcohol, Tobacco and Firearms ("ATF") with the responsibilities to: 1) license FFLs; 2) ensure that FFLs comply with the law; and 3) enforce the law. (Tr. at 428:14 – 429:3; Def. Exh. 4.)

ATF is mandated by law to produce publications cataloging federal, state and local laws, ordinances and regulations relating to firearms. (Tr. at 2277:25 – 2278:11.) When dealers receive their licenses, they are given complete copies of the federal firearms laws, the federal firearms regulations, a publication on state law, published ordinances and local laws pertaining to the sale and distribution of firearms. (Tr. at 3805:7–22.) These laws are a code of conduct that governs gun dealers and other industry members. (Tr. at 3845:25 – 3846:7.)

The firearms laws and regulations, including ATF's primary function as it relates to firearms, are designed to prevent guns from falling into illegal hands, and ATF undertakes to educate FFLs through seminars, meetings, newsletters, publications and other means about such illegal activities as straw purchasing. (Tr. at 3851:11–23; 2364:19 – 2367:8; Pltf. Exh. LT-3.)

An unlicensed purchaser of a firearm from an FFL must complete a Firearms Transaction Record Over-the-counter form 4473. (Tr. at 456:24 – 457:22; Def. Exh. 19.)

A potential purchaser of a firearm can be prosecuted for knowingly providing false information on the 4473 form. (Tr. at 567:21 – 568:16.)

An FFL selling a firearm at a gun show must do so in compliance with the same regulations that would apply for a sale at his business establishment. (Tr. at 1359:8–15.)

A seller who knowingly makes a sale to someone who is a straw purchaser conducts an illegal transaction and therefore also commits a felony. (Tr. at 827:17–25; Def. Exh. 19.)

The law requires FFLs, which include manufacturers and distributors, to report thefts and losses of firearms to ATF within 48 hours. (Tr. at 465:22–23.)

The law does not require private sellers of firearms — i.e., those who are not "engaged in the business" of selling firearms — to conduct background checks or to maintain records that an FFL is required to maintain. (Tr. at 536:15–24; 562:3–11.)

Sales at gun shows by non-licensed persons to private citizens are outside the normal three-tier process of the sale of a new firearm from a manufacturer through a distributor and dealer to a first retail purchaser. (Tr. at 1360:21 – 1361:24.)

FFL applicants must follow many requirements as part of the application process, including notifying the chief law enforcement officer in their jurisdiction of their intent to procure such a license; submitting photographs and fingerprints to ATF; and providing ATF with a certification that the licensed operation complies with all state and local laws. (Tr. at 538:8–17; Def. Exh. 4.)

Multiple sales are reported by the retail dealer to the chief law enforcement officer in that jurisdiction and to ATF on a Form 3310 by the close of business on the day of sale. (Def. Exh. 20.)

ATF uses the multiple sales form as an investigative tool. (Tr. at 591:13–22; 829:7–13.)

ATF must gather information and conduct an investigation to determine whether a dealer is involved in a straw purchase, which is very difficult and often involves undercover work. (Tr. at 604:18 – 605:5; 605:18–22.)

ATF is not limited to entering and inspecting the premises of an FFL once a year if ATF is investigating a suspected violation of the law. (Tr. at 674:9–12; 674:25 – 675:1.)

The statutory authority that allows ATF to perform a trace is the same as that which allows ATF to enter onto the business premises of an FFL as many times as it wants, with or without a warrant, and with or without probable cause. (Tr. at 675:21 – 676:3.)

If ATF believes that certain traces warrant further examination, it has the power to, among other things, conduct inspections, issue subpoenas and assign undercover agents to the case. (Tr. at 846:15–24.)

ATF has the authority to conduct criminal investigations as to unlicensed sellers and prohibited purchasers. (Tr. at 590:8–18.)

ATF identifies and investigates corrupt dealers. (Tr. at 602:5–18.)

ATF has substantial, unique investigative resources not available to manufacturers, importers or distributors. (Tr. at 2452:11 – 2463:18; 3807:16 – 3808:6; Pltf. Exh. LT-96.)

VI. Tracing

A trace is an attempt to identify (a) the FFL or gun store where a recovered gun was initially sold; and (b) the initial gun purchaser. (Tr. at 440:9–11; 3651:8–23.)

"Tracing" tracks a gun only through the primary market, namely from the gun manufacturer or importer, distributor and retail dealer to the first retail purchaser. (Tr. at 2276:5–10.)

The law requires FFLs to keep records of all firearms which it acquires and disposes, which ATF can inspect at any time in connection with a criminal investigation. (Tr. at 463:14–18; 702:25 – 703:6; 836:11–18.)

Through the Access 2000 program, ATF can trace firearms from manufacturers and importers 24 hours a day, 7 days a week by downloading information from a computer on the licensee's premises without ever actually contacting the licensee. (Tr. at 803:17–23.)

A. ATF Disclosure of Trace Data

The firearms trace database contains law enforcement sensitive information. (Tr. at 1055:4–23.)

Not all of the data contained in the trace database is publicly available. (Tr. at 1049:19–22.)

Law enforcement sensitive information includes data linking a traced gun to a specific crime location, as well as identifying data concerning the firearms distributor and dealer. (Tr. at 1060:24 – 1061:5.)

Trace information that identifies a retailer or distributor's name or FFL number is not publicly available until the trace request is more than five years old. (Tr. at 1050:15–19; 3743:1–4; 3744:1–6.)

Manufacturers and distributors do not receive trace requests as to all of their products that are traced. They are not contacted if ATF is first able to obtain the disposition information from available databases, including out-of-business records, the multiple sales database, the reported thefts database, and the demand database. (Tr. at 685:13 – 686:1; 3656:8 – 3664:11.)

Because manufacturers and distributors do not receive notification of all traces of the products they sell and do not receive the trace requests concerning the products of other manufacturers or distributors, there is no way a manufacturer or distributor would know the totality of its own traces or the totality of traces related to specific dealers. (Tr. at 686:2–6.)

The premature disclosure of certain trace information could reasonably be expected to interfere with pending or prospective law enforcement proceedings. (Tr. at 1060:18–23.)

The ATF was ordered by the court in this case to produce trace data which had "not been made publicly available" outside of the ATF. NAACP v. American Arms, Nos. 99 Civ. 3999, 99 Civ. 7037 (JBW) Order (Sept. 18, 2002) (hereinafter, the "Sept. 18, 2002 Order"), at 2.

Identification of retailer and distributor names and FFL numbers for traces within the prior five years is among the trace data ordered produced in this case which had "not been made publicly available." (Def. Exh. 45 at ¶ 20; Def. Exh. 46 at ¶ 1; Sept. 18, 2002 Order, Ex. A.)

B. Limitations of Trace Data

Comprehensive tracing is an ATF effort to have law enforcement agencies trace all the guns they recover. (Tr. at 3680:17 – 3681:4.)

Some firearms are traced even though they were not in any way involved in a crime. (Tr. at 379:5–10; 3679:2–4; 3915:5–21; 4262:6 – 4264:24.)

During the tracing process, manufacturers are not told the purpose of the trace, who the requesting police agency is, what the crime code was, where the gun was recovered, or who is being investigated. (Tr. at 1075:16 – 1076:23; 3655:23 – 3656:7; 3666:3–16; Def. Exh. 45 at ¶ 9; NAACP v. American Arms, Nos. 99 Civ. 3999, 99 Civ. 7037 (JBW), Report of the Special Master Regarding Certain Data Maintained by the Bureau of Alcohol, Tobacco and Firearms ("BATF") (August 16, 2002), at 10.)

Most trace requests originate from state and local law enforcement agencies. (Tr. at 3654:8–12.) The trace request form contains no information about the reasons for the trace request or the circumstances of the recovered gun, other than an NCIC crime code if provided, and ATF does not receive underlying police reports reflecting the circumstances of a recovered firearm. (Tr. at 3655:14 – 3656:4.) The National Tracing Center does not conduct any further follow-up on trace requests to learn the outcome of any investigations or the reasons underlying the trace requests. (Tr. at 3675:1–10.)

After a manufacturer responds to a trace request, it receives no further contact from ATF. (Tr. at 1076:21 – 1077:1.)

A trace does not mean that the FFL retailer or the first purchaser engaged in illegal or wrongful activity. (Tr. at 842:22 – 843:2; 1336:23 – 1337:3; 2336:9–12; Def. Exh. 29; Pltf. Exh. LT-7.)

The ATF never determines that an FFL has engaged in illegal or improper activity based simply on the existence of a trace request. (Tr. at 3708:10 – 3709:23.)

A law enforcement investigation must be conducted to determine if any wrongdoing has occurred in any given circumstance. (Tr. at 3740:9–13; 3741:4–11.)

If the sales volume of an FFL is large, it is more likely that the FFL will also have a larger number of traces. (Tr. at 3709:15 – 3710:19.)

Plaintiff's statistical experts, Ms. Lucy Allen and Dr. Howard Andrews, both admitted that, despite all their efforts and the availability of non-public portions of the FTS Database for use in this case, they were unable to use the FTS Database to identify dealers who had committed wrongdoing. (Tr. at 2827:2–25; 4621:11–22.)

Plaintiff's failure to identify dealers engaged in wrongdoing from the FTS Database was confirmed by defendants' statistical expert, Dr. William Wecker, who independently reviewed the FTS Database to see if it could be used to identify potential problem dealers and concluded that it could not be used for that purpose. (Tr. at 4349:13 – 4350:13; 4399:4–24.)

C. Use of Trace Data — Generally

Tracing provides investigative leads to law enforcement so that if an initial purchaser of a recovered gun is identified, law enforcement can attempt to learn both the history of the gun and the circumstances surrounding how the gun reached its possessor. (Tr. at 3652:21 – 3653:13.)

The ATF trace database is a criminal investigative tool, and ATF cannot be responsible for the validity of an analysis by anyone else who may use the database for some other purpose. (Tr. at 789:17–21; Def. Exh. Higgins 2.)

Only law enforcement should conduct investigations based on trace leads. (Tr. at 818:18–20; 1028:11–18; 2305:14–20.)

Those outside of law enforcement should not receive ATF investigatory information. (Tr. at 2291:5–8.)

Trace data cannot be used for any purpose other than as a law enforcement tool. (Tr. at 3741:23 – 3742:16; Def. Exh. 45.)

Disclosure of trace information could compromise ongoing or potential criminal investigations, even potentially leading to injuries to or the death of ATF agents or civilians involved in undercover investigations. (Tr. at 360:1–12; 820:15 – 821:1; 1060:18 – 1061:5; 2479:11–19; 3667:17 – 3668:6; Def. Exh. 45.)

A manufacturer "merely contacting" a retailer and inquiring as to specific purchases that were the subject of traces could jeopardize a law enforcement investigation. (Tr. at 360:22 – 361:3; 3671:11 – 3672:18.)

ATF prohibits some information from being released to the public because it might jeopardize an investigation or some other ongoing matter. (Tr. at 785:9–13.)

Manufacturers and distributors are only expected to respond to trace requests in a timely and accurate manner. ATF does not expect them to do anything more. (Tr. at 3668:13–19; 3669:2 – 3670:16; 3673:1–23.)

ATF's stated position is that Access 2000 participants should "only [] provide the firearm dispositions to facilitate the timely completion of a firearm trace request for the National Tracing Center Division." (Tr. at 669:8–16; Def. Exh. 64.)

ATF has also stated that it "urge[s] licensees not to undertake their own criminal investigations or take any other action that might interfere with a specific ATF or other governmental investigation unless directed to do so by a law enforcement agency." (Tr. at 671:7–11; Def. Exh. 43.)

ATF's position as to how FFLs should respond to trace requests is, "…the role of federally licensed manufacturers and dealers in responding to trace requests is limited. Your understanding is correct that in the context of a trace request, ATF only requests manufacturers and dealers to provide trace information in a timely and accurate manner. ATF does not want licensees or members of the public to interfere with ongoing criminal investigations." (Tr. at 796:3–10; Def. Exh. 43.)

It is inappropriate for a manufacturer to undertake a criminal investigation of anyone. (Tr. at 360:11–18; 361:25 – 362:4; 818:18–20; 846:25 – 847:2.)

If a retailer had an "inordinate" amount of traces, it would be up to law enforcement, the ATF specifically, to use all of its investigative techniques and resources to determine whether any further action was needed concerning that FFL. (Tr. at 380:25 – 381:9.)

D. Use of Trace Data — Focused Inspections

ATF uses its resources to focus its investigations on FFLs identified by various factors to determine whether those FFLs were operating in compliance with the law. (Tr. at 707:17–21; 810:22 – 811:1; 2369:25 – 2370:5; Pltf. Exh. LT-3 at 31.)

Traces to a particular FFL, even a high number of traces, is not evidence of wrongdoing by the FFL. (Tr. at 3741:12–17.)

In approximately 2000, ATF had 800 inspectors to conduct focused inspections. (Tr. at 2347:17–19.)

ATF has the resources to conduct focused inspections and investigations of dealers. (Tr. at 3807:16 – 3808:6.)

ATF has not told gun manufacturers or distributors to stop selling to any specific FFL dealers. (Tr. at 2522:3–7; 2523:22–25.)

ATF has not told manufacturers or distributors that ATF has identified particular FFLs it believes are illegal or corrupt dealers. (Tr. at 2522:3–7.)

VII. Firearm Industry Cooperation with ATF

The industry has a long record of assisting law enforcement officials in preventing their products from falling into the wrong hands. (Tr. at 1352:6–9.)

Examples of industry cooperation, often through various trade associations, with ATF include:

1 an ATF/industry working group that meets to discuss issues within the industry and possible approaches to dealing with problems (Tr. at 1284:20 – 1285:6; 1378:23 – 1379:5; Def. Exh. 2347 at 8:16–18);

2 educating dealers (Tr. at 1379:6–13);

3 encouraging ATF to develop E-Z check to permit easy verification of FFL status (Def. Exh. 2347 at 13:19 – 14:19);

4 the joint ATF and industry "Don't Lie for the Other Guy" program, which included pamphlets and videotapes (Tr. at 1379:14–21; Def. Exhs. 70, 70-A; Def. Exh. 2347 at 9:1–2, 14:20 – 16:5);

5 industry publications on safe handling and storage of firearms (Tr. at 1380:22 – 1381:6);

6 industry-developed "Project Homesafe" and "Operation Child Safe" (Tr. at 1382:10–17; Def. Exh. 2347 at 12:10 – 13:18);

7 the joint ATF and NSSF "Partnership for Progress" program (Def. Exh. 71); and

8 Access 2000 (Tr. at 1383:20 – 1384:2; Def. Exh. 223; Def. Exh. 2347 at 11:12 –12:9.)

Retail dealers are cooperative with law enforcement investigations, including taking the initiative to notify ATF of suspicious activity and participating in law enforcement sting operations. (Tr. at 352:14 – 353:1; 361:7–12; 2324:12 – 2331:16; Pltf. Exh. LT-1; Pltf. Exh. LT-96 at 37; Def. Exh. 45 at ¶ 17.)

Access 2000 was developed within the industry to give ATF 24 hour access to a stand-alone computer containing acquisition and disposition records to conduct traces. (Tr. at 1287:25 – 1288:22.)

Members of the industry and ASSC, one of its trade associations, worked with ATF on ways to attempt to identify dealers engaged in wrongful conduct. (Tr. at 1334:24 – 1335:4.)

ASSC and members of the industry have advocated more money for ATF. (Tr. at 1335:19 – 1336:13.)

ATF has issued bulletins for years to educate FFLs about straw purchases. (Tr. at 1353:8–16; Pltf. Exhs. 2116, 2117, 2118, 2119.)

At industry trade shows, ATF, at times in conjunction with industry members or trade associations like NSSF, SAAMI, ASSC and NASGW, puts on seminars and displays booths to educate dealers about straw purchases. (Tr. at 1353:17 – 1356:19; Def. Exh. 71; Def. Exh. 2347 at 8:16–18.)

Posters and videotapes have been prepared and distributed as part of the industry's "Don't Lie for the Other Guy" program. (Tr. at 711:12 – 712:15; 1357:23 – 1358:5; Def. Exhs. 70, 70-A.)

VIII. Defendants' Compliance with Laws and Regulations

Plaintiff presented no evidence that any defendant had violated any federal, state or local statute or regulation regarding the manufacture, distribution or sale of any firearm. (See, e.g., Tr. at 349:13–14.)

Plaintiff presented no evidence that any defendant had knowledge or reason to believe that it was selling firearms to any other entity that intended to violate federal, state or local statutes or regulations.

The legal firearms industry in the United States conducts business in overwhelming compliance with federal laws and regulations. (Tr. at 2343:19 – 2344:1; Def. Exh. 25.)

A very small number of dealers have engaged in criminal or corrupt conduct. (Tr. at 377:3–4; 1334:12-20; 2490:12–21.)

FFL dealers are rarely involved in criminal activity. (Tr. at 2490:12–21; Def. Exh. 45 at ¶ 18.)

Corrupt FFLs are rare. (Tr. at 377:3–4; 847:3–9; Pltf. Exh. LT-1; Def. Exh. 45 at ¶ 18.)

IX. Criminal Acquisition of Firearms

Over 500,000 guns are stolen each year from private homes and vehicles. Such thefts are one of the central sources of criminal access to firearms. (Tr. at 4513:11–22; 4515:5–13; 4517:16 – 4518:1.)

These stolen guns merge with private, informal voluntary sales to supply a vast secondary market which is largely unregulated. (Tr. at 4138:9 – 4144:6; 4514:8 – 4515:7.)

Criminologists, even in the most recent surveys, have noted that the secondary market (i.e., sales by non-federally licensed persons) is a central source of firearms to criminals who desire them. (Tr. at 4513:11–22; 4515:5–13; 4517:16 – 4518:1.)

Eighty-five percent of the firearms acquired by criminals are acquired through transactions in the unregulated secondary market. (Tr. at 4141:10–18.)

Less than one percent of the guns that go into criminals hands get there as a result of known trafficking activities by FFLs. (Tr. at 4144:15 – 4145:12; 4146:6–10.)

For example, research by plaintiff's expert, Professor Jeffrey Fagan, revealed that inner city youth in New York secured guns from a variety of different sources, which were identified as 1) thefts from homes or other places; 2) family; 3) friends or others on the street; and 4) barter. (Tr. at 3622:19 – 3623:7.)

None of the youths in Professor Fagan's research indicated that he or she had acquired a gun from a retail store or as part of a straw purchase. (Tr. at 3263:8–11.) The research regarding sources of firearms for inner city youth is consistent with the criminological literature addressing where criminals or adolescents not entitled to possess firearms obtain them. (Tr. at 3623:12–16.)

Guns shows are not a significant source of firearms for the criminal market. (Tr. at 4155:13 – 4156:9.)

There is no evidence that many or most criminals obtain guns directly from FFL dealers. Most obtain guns through secondary sources. (Tr. at 2270:5 – 2271:7.)

Diversion of firearms typically involves criminal behavior that the persons involved are trying to conceal. (Tr. at 354:4–23.)

X. Plaintiff's Alleged Injuries

Plaintiff's evidence of "injury" consisted of testimony from Mildred Roxborough that (i) the NAACP had renovated its New York offices to increase security "because of threats and walk-ins from people who were sometimes threatening" and (ii) that some people, especially women, were afraid to go out at night to attend meetings, purportedly making it more difficult to get "enough volunteers to attend our meetings and to carry out certain projects." (Tr. at 279:3–24.)

The "certain projects" referenced in the testimony of Ms. Roxborough were not identified nor was there any explanation as to how they were affected. (Tr. at 279:3–24.)

Plaintiff presented no evidence linking either of these alleged injuries to the alleged nuisance or the conduct of any of the defendants in the case. Indeed, Ms. Roxborough expressly stated that the increased security at NAACP's New York office was the result of "threats," not because of a supposed nuisance related to the availability of firearms. (Tr. at 279:8–11.) Moreover, there was no suggestion that women were afraid to go out at night only to attend NAACP meetings; to the contrary, such general fear would logically extend to all areas of the women's life.

Like Ms. Roxborough, Kwesi Mfume testified that the level of violence had made it more difficult because people are afraid to come out to organizational meetings. (Tr. at 754:16 –755:4.) Mr. Mfume did not testify as to any effect this increased "difficulty" had on the NAACP or its membership.

Plaintiff also presented evidence from Dr. Howard Andrews and Professor Jeffrey Fagan regarding the level of victimization of African-Americans through violence committed with handguns. None of Dr. Andrews' or Professor Fagan's testimony, however, reflected the level of violence as it relates separately to the NAACP or its members. (Tr. at 2670:24 –2671:11; 3599:16 –3600:4.)

While African-Americans have a greater risk of gun homicide victimization than do other population groups, the same can be said about other population groups such as Hispanic males. (Tr. at 3603:24 – 3604:13.)

In general, all types of misuse of firearms fall disproportionately on the poor and overwhelmingly on males rather than females, but no group is entirely spared. (Tr. at 3605:11–15; 3608:3–8.)

All segments of society, whether White, Black, Hispanic, Oriental or otherwise, suffer from handgun violence. (Tr. at 2666:11–18; 2667:23 – 2668:13.)

The type of injury that is suffered by African-Americans as a result of violence committed with firearms is not unique. (Tr. at 2668:4–13.) Every race and every segment of our society suffers the same kind of injury as a result of the criminal misuse of firearms. (Tr. at 2669:4 – 2670:23.)

Any statistical relationship between firearm seizures (as measured by firearms recovered and subsequently submitted for tracing) and the level of firearm homicides and assaults exists for all New Yorkers, not just African-Americans. (Tr. at 4509:19 – 4511:18.)

African-Americans live in a variety of different neighborhoods. Some neighborhoods are middle class, some neighborhoods are well to do, some neighborhoods are abjectly poor. Homicide rates in these neighborhoods are very, very different. Even in the poorest African-American neighborhoods where one would expect to see the highest rates of gun homicides, there are very strong differences in the homicide rates among those neighborhoods depending upon patterns of interactions of the individuals within those neighborhoods. In those neighborhoods with stronger social capital (i.e., people have very strong ties with neighbors, are closely bound together, where they assist one another materially, where they watch out for each others' homes, where they care for each others' children, where there is a great deal of intimacy among those neighbors), homicide rates are far lower. (Tr. at 3609:3 – 3611:9.)

Notwithstanding the admitted differences in various African-American communities and the differences in gun homicide rates associated with those differences, plaintiff failed to present any demographic information establishing in which communities NAACP members reside, or specifically, whether they reside in communities most affected by gun violence. (Tr. at 3599:25 – 3600:7.)

Plaintiff presented no evidence, statistical or otherwise, that would permit the conclusion that there is a higher rate of firearm-related violence among the membership of the NAACP than there is among the New York community at large. (Tr. at 2670:24 – 2671:11; 3599:16 – 3600:4.)

XI. Declining Homicide Rates

Gun homicide rates have dropped in New York every year over the last ten years, and the gun homicide rate in New York is as low now as it was in the early 1960s. (Tr. at 3597:22–25; 3599:5–12.)

There is no reliable evidence which would indicate that it has been more difficult to obtain a firearm during the ten-year period of homicide decline in New York than it was during the prior period of homicide increase. (Tr. at 3629:8–18.)

It is reasonable to conclude that the demand for illegal firearms in the communities most frequently affected by firearm violence declined in the period that homicides have declined in New York. (Tr. at 3629:19–22.)

XII. The Absence of Evidence Tying Defendants' Conduct to Plaintiff's Alleged Injuries

No defendant intends or desires that its guns be used in crime. (Tr. at 1385:21–24.)

Plaintiff presented no evidence that a single firearm manufactured, imported or distributed by these defendants was acquired by a straw purchase, diverted to the illegal market in New York, and used to cause injury or threaten injury to the NAACP or one of its members.

Plaintiff presented no evidence that a single firearm manufactured, imported or distributed by these defendants was acquired at a gun show, diverted to the illegal market in New York, and used to cause injury or threaten injury to the NAACP or one of its members.

Plaintiff presented no evidence that a single firearm manufactured, imported or distributed by these defendants was acquired as part of a multiple purchase, diverted to the illegal market in New York, and used to cause injury or threaten injury to the NAACP or one of its members. (Tr. at 776:20 – 777:4.)

Plaintiff presented no evidence that a single firearm manufactured, imported or distributed by these defendants was sold by an indicted dealer, diverted to the illegal market in New York, and used to cause injury or threaten injury to the NAACP or one of its members.

Plaintiff presented no evidence that a single firearm manufactured, imported or distributed by these defendants was diverted into the illegal market through theft from a retailer, diverted to the illegal market in New York, and used to cause injury or threaten injury to the NAACP or one of its members. (Tr. at 776:9–13.)

Plaintiff presented no evidence that any firearm manufactured or sold by a defendant was used to harm or threaten the NAACP or its members, let alone evidence of from where that gun came.

Plaintiff presented no evidence that any manufacturer or distributor defendant in the litigation targets any particular community in the sale or distribution of guns or that any firearms manufacturer or distributor is marketing their firearms to inner city youth or that specific neighborhoods in New York are targeted in any way by any defendant. (Tr. at 3601:2–15.)

Plaintiff presented no evidence that any defendant acted with any racial bias or motivation. (Tr. at 3601:16–19.)

Plaintiff presented no evidence of any link between any disproportionate effect of violence committed with firearms or homicide on African-Americans and any alleged wrongdoing on the part of any defendant in the litigation. (Tr. at 2671:12 – 2672:1.)

Plaintiff presented no empirical evidence or other support to substantiate the conclusory assertion that any of plaintiff's proposals for changes in the marketing and distribution of firearms would have any effect on the illegal market in firearms or on the alleged injuries to the NAACP or its members. (See, e.g., Tr. at 774:5–9; 774:17–19; 782:6–9.)

Plaintiff presented no evidence that manufacturing agreements have any effect on the flow of firearms into New York. (Tr. at 775:16 – 776:1.)

Plaintiff presented no evidence that, if some defendant had provided employee training to someone, then a firearm would not have found its way into New York and have been used to cause fear or injury to an NAACP member. (Tr. at 776:2–8.)

Plaintiff presented no evidence that, if defendants had studied trace requests, it would have prevented fear and injury to the NAACP or its members in New York. (Tr. at 776:14–18.)

XIII. Plaintiff's Flawed Statistical Analysis of the Trace Database

A. Non-Random Sample

Plaintiff's expert, Ms. Allen, assumed for purposes of her analyses that handguns submitted to ATF for tracing are a representative sample of all handguns recovered by law enforcement or used in crime and presented exhibits and offered opinions regarding handguns recovered or used in crime based on her analyses of data contained in ATF's Firearms Tracing System Database ("FTS Database"). (Tr. at 3911:4 – 3913:21; see, e.g., Pltf. Exh. Allen 1.)

It is well established that a sample must be representative of the population to which inferences are to be drawn. (Tr. at 3902:1–8; 3904:6 – 3905:8.)

Firearms or handguns submitted to the ATF for tracing do not constitute a representative or scientific random sample of firearms or handguns recovered by law enforcement or used in crime (Tr. at 3908:2–17; 3943:1–12), but instead constitute a so-called convenience sample. (Tr. at 4237:3 – 4238:7.)

Because the FTS is not a random sample of firearms or handguns used in crime, generalizations or inferences to the larger populations of firearms or handguns recovered by law enforcement or used in crime are not possible. (Tr. at 4237:21 – 4238:7; 4243:4 – 4245:2.)

Because data in the FTS Database relate to firearms or handguns that do not constitute a representative or random sample, it also is not possible or appropriate to do calculations of statistical significance. (Tr. at 4243:4 – 4244:21; 4246:8–18.)

Because there is no probability mechanism used in selecting firearms or handguns for tracing, the results cannot be generalized to the larger populations of firearms or handguns recovered by law enforcement or used in crime. (Tr. at 4237:21 – 4238:7.)

Without a probability mechanism to relate the sample to the larger populations of firearms or handguns recovered by law enforcement or used in crime there is no proper way to use statistical formulas to answer the question whether something seen in the sample also applies to the larger populations. (Tr. at 4243:4–17.)

B. Age Bias in the Selection of Firearms to Trace

Law enforcement agencies do not seize all firearms used in crime, and they do not submit trace requests for all firearms that they seize. (Tr. at 3942:16 – 3943:12.)

Law enforcement officers frequently decide which firearms to submit for tracing based on individual judgments about the need for and value of tracing the recovered firearms to accomplish specific law enforcement purposes. (Tr. at 3940:25 – 3941:15; Def. Exh. 433 at 66.)

Law enforcement officers frequently base their decision to submit a firearm to the ATF for tracing on, among other things, the perceived age of the firearm. (Tr. at 3944:11 – 3945:24; Def. Exh. 433 at 69.)

This results in an "age selectivity bias" in that older firearms are less likely to be submitted to the ATF for tracing than newer firearms. (Tr. at 3944:11 – 3946:2; Def. Exh. 433 at 69.)

Data comparing the median age of firearms or handguns submitted to the ATF for tracing from cities before and after they moved to so-called comprehensive tracing (i.e., the tracing of all firearms recovered by law enforcement), including Boston, Los Angeles and New York, demonstrate the age selectivity bias that occurs in submitting recovered firearms or handguns for tracing in cities that have not moved to comprehensive tracing. (Tr. at 4229:9 – 4234:18; Def. Exhs. 768, 769.)

Data comparing the median age of firearms traced over time, in light of the fact that many cities have moved to comprehensive tracing since 1996, also demonstrate the age selectivity bias that has existed and continues to exist in jurisdictions that have not moved in whole or in part to comprehensive tracing. (Tr. at 3948:4 – 3950:8; Def. Exh. 610.)

As a result of age selectivity bias, firearms and handguns submitted to the ATF for tracing are, on average, younger in terms of age — the time between their dates of sale and recovery — than the populations of firearms and handguns recovered or used in crime. (Tr. at 3945:19 – 3946:2; 3953:8 – 3954:7.)

For this reason, among others, data about handguns in the FTS Database cannot be used to draw conclusions or support inferences about all handguns recovered by law enforcement or used in crime. (Tr. at 3945:6 – 3946:2; 3956:25 – 3958:21.)

Plaintiff's expert, Ms. Allen, attempted to account for the age bias that occurs because ATF is unable to successfully complete traces of all handguns submitted to ATF for tracing, but did not account for the age selectivity bias that occurs at the prior step where law enforcement officers tend to submit newer handguns to ATF for tracing, causing Ms. Allen to use data from the FTS Database inappropriately to make calculations, draw conclusions, and offer opinions about handguns recovered by law enforcement or used in crime. (Tr. at 3953:8 – 3954:21; 3956:1 – 3957:4.)

C. FTS Data Are Collected Haphazardly

Data about firearms submitted to ATF for tracing also are not collected in a scientific or consistent manner. (Tr. at 3901:19–23.)

The FTS Database includes data collected about "non-crime guns," including firearms that are turned in to the police for safekeeping and law enforcement firearms that are used in incidents or turned in for replacement and nevertheless traced. (Tr. at 3915:5–21; 4262:6 – 4264:24.)

The FTS Database also includes multiple records for the same recovered firearm (Tr. at 3925:4–8) and records of so-called "fictitious traces." (Tr. at 3917:4 – 3920:18.)

Fictitious traces occur when law enforcement officers cannot read all of the digits of a firearm's serial number and therefore submit for tracing all possible combinations of the firearm's serial number. (Tr. at 3917:18–25.) This results in numerous trace requests involving firearms neither recovered by law enforcement nor used in any crime. (Tr. at 3918:15 – 3920:18.)

Defense experts demonstrated that these "fictitious traces" could and did affect Ms. Allen's analyses. (Tr. at 3922:6 – 3924:3; 4291:8 – 4293:10; Def. Exh. 566.)

D. Changing Methods and Standards of FTS Data Collection

There have been significant changes in recent years with respect to the selection of recovered firearms or handguns that are submitted to ATF for tracing and how and what data concerning traced firearms or handguns are entered into the FTS Database. (Tr. at 3928:1–14.)

ATF initiated a program called the Youth Crime Gun Interdiction Initiative ("YCGII") in 1996, which involved, in part, getting participating cities to agree to undertake so-called comprehensive tracing; that is, the tracing of all firearms recovered by law enforcement in that city. (Tr. at 3928:8–14.)

Seventeen cities committed to undertake comprehensive tracing in 1996. (Tr. at 3928:25 – 3929:3.) As of 2000, approximately 50 cities had agreed to undertake comprehensive tracing. (Tr. at 3929:4–9.)

According to an ATF report published in 2000 concerning the YCGII program, 10 of the 38 cities participating in the program at that time were not tracing comprehensively. (Tr. at 3935:5 – 3936:9; Def. Exh. 29.)

According to an ATF report published in 2002 concerning the YCGII program, the program is undergoing constant change. (Tr. at 3931: 22–25; Def. Exh. 29.)

According to ATF, the extent of YCGII program implementation has varied from one jurisdiction to another based on each one's size, extent of agency computerization, information intake procedures, firearms-focused law enforcement activity, and the nature of its crime gun problem. (Tr. at 3932:16–20; Def. Exh. 29.)

ATF concluded in 2002 that it was not appropriate to attempt to impose a single standard on all YCGII participating jurisdictions because the program is still evolving. (Tr. at 3932:20 – 3933:4; Def. Exh. 29.)

ATF concluded in 2002 that the available data from the YCGII participating jurisdictions do not yet constitute a fully developed statistical series from which reliable comparisons can be made from one reporting period to the next or from one participating jurisdiction to another. (Tr. at 3959:2–17; Def. Exh. 29.)

The 2002 ATF report also concluded that the purpose of the YCGII reports are to assist law enforcement by providing a detailed description of crime guns recovered in a given jurisdiction during the past year, and that is the most appropriate use of the data. (Tr. at 3959:21–25; Def. Exh. 29.)

ATF also concluded in 2002 that the approximately 50 jurisdictions participating in the YCGII do not represent a national sample of crime guns recovered by law enforcement agencies. (Tr. at 3934:19 – 3935:4; Def. Exh. 29.)

ATF has stated that the FTS Database is a criminal investigative tool and, accordingly, ATF cannot be responsible for the validity of analysis by Freedom of Information Act requestors conducted for purposes for which the database was not designed. (Tr. at 3958:17–21.)

E. Plaintiff's Expert's Misuse of the FTS Database

Plaintiff's statistical experts attempted to use the FTS Database in ways that are inconsistent with the disclaimers and conclusions of ATF as to the appropriate uses of the FTS Database. (Tr. at 3960:1–5.)

Ms. Allen's attempts to draw comparisons across distributors or dealers (e.g., Pltf. Exhs. Allen 7-D, 7-E, 15) are inappropriate and unreliable because counts of traces are affected by whether the distributors or dealers are located in cities or sell disproportionately in cities that participate in comprehensive tracing. (Tr. at 3938:3 – 3939:8.)

Ms. Allen's calculations of statistical significance using the FTS Database also are improper because her calculations assumed a certain sampling method was used that was not actually used. (Tr. at 4244:5–21.)

It was not appropriate for Ms. Allen to make statistical significance calculations that are predicated on random sampling when she did not have a sample that was selected randomly. (Tr. at 4246:8–18.)

Scientific basis is lost when significance tests designed on the assumption of a random sample are used in situations where there is no random sample. (Tr. at 4245:21 – 4246:7.)

F. Ms. Allen's Use of Other Unreliable Data

1. Smith & Wesson Warranty Card Information

Ms. Allen attempted to use information taken from Smith & Wesson warranty card returns to calculate whether the supply of handguns to a state exceeded so-called "legitimate demand." (Tr. at 3960:20 – 3961:2.)

Ms. Allen's use of this information was based on a number of unsupported assumptions, including: that the purchasers voluntarily returning warranty cards were representative of all Smith & Wesson handgun purchasers; that the Smith & Wesson handgun purchasers returning the warranty cards were representative of all handgun purchasers; and that Smith & Wesson handgun purchasers could be used as a proxy for legitimate demand. (Tr. at 3964:15 – 3965:5.)

The assumptions made by plaintiff's expert regarding the Smith & Wesson warranty card returns were not well founded. (Tr. at 3965:6 – 3973:17.)

Ms. Allen's use of the Smith & Wesson warranty card information to estimate legitimate demand was not a reliable basis upon which to conclude that any particular state was "oversupplied" with handguns by defendants. (Tr. at 3973:9–17.)

2. Plaintiff's Dealer Survey

Ms. Allen designed a telephone survey of firearm dealers and used responses to one of the survey questions to determine dealer sales volumes. (Tr. at 3974:8 – 3975:2.) Ms. Allen used the dealer sales volumes to calculate dealer trace rates, in turn used by her to determine if there was a statistically significant relationship between a dealer having certain "characteristics" and the dealer's trace rates. (Tr. at 3973:20 – 3975:10; 3989:3–17; Pltf. Exh. Allen 15.)

Ms. Allen's survey of dealers did not comply with generally accepted scientific procedures and principles concerning surveys. (Tr. at 3975:22 – 3976:16.)

Ms. Allen's survey violated the generally accepted procedures and principles for surveys with respect to: (i) the wording of the question seeking sales volume information; (ii) the failure to include an appropriate "filter question" to insure that the person responding to the sales volume question was a person knowledgeable about handgun sales volume in 2002 (Tr. at 3977:2 – 3980:4); (iii) the failure to pre-test the survey, including the sales volume question, to insure that it was clear and understandable (Tr. at 3991:6 – 3993:8; 3306:6 – 3309:18); and (iv) the extraordinarily low response and cooperation rates for the survey. (Tr. at 3993:11 – 4001:13.)

The response rates for Ms. Allen's survey were 25.1% (for the subgroup of 1,000 dealers selected) and 3.8% (for the subgroup of 4,000 dealers selected). (Tr. at 3997:11 – 3998:21.)

A low response or cooperation rate does more damage in rendering a survey's results questionable than a small sample because there may be no valid way scientifically of inferring the characteristics of the population represented by the non-respondents. (Tr. at 4000:18 – 4001:4.)

Because these rates do not meet generally accepted statistical guidelines on acceptable response rates, the survey responses and estimates based on those responses cannot be considered reliable. (Tr. at 4001:5–13.)

In calculating trace rates, Ms. Allen also attempted to match responses regarding 2002 handgun sales volume to 1999 and 2000 traces, a mismatch that resulted in some dealers having more traces than sales. (Tr. at 3316:7 – 3318:16.)

The failings of Ms. Allen's dealer survey were demonstrated by the inconsistent responses she received to the sales volume questions in the survey when certain dealers were called back. (Tr. at 3983:11 – 3986:11.)

For example, of the 28 dealers who were re-contacted, 9 gave responses that were not only different, but inconsistent with their previous answers. (Tr. at 3986:25 – 3988:11.)

Even in the callbacks, no request was made to speak with someone knowledgeable about handgun sales volume in 2002. (Tr. at 3325:1 – 3326:19.)

There is no way to know whether the information provided in the original call or the callback, or either, is reliable. (Tr. at 3987:11 – 3988:23.)

The effect of the deficiencies in Ms. Allen's dealer survey, particularly with respect to the question on handgun sales volume, means that Ms. Allen's calculations of dealers' ratios of traces to sales (trace rates) were unreliable and should not have been used by her in various of her regressions, e.g., Pltf. Exh. Allen 15. (Tr. at 3990:4 – 3991:4.)

G. Ms. Allen's Flawed Statistical Methods

1. Manufacturer Practices Regression

Ms. Allen attempted to show that there was a statistically significant relationship between the number of certain alleged distribution oversight practices followed by a manufacturer and its ratio of trace share to market share (Trace Ratios). (Pltf. Exh. Allen Table 24-A.) It was demonstrated at trial, however, that Ms. Allen's results regarding manufacturer practices and Trace Ratios depended on her selection of which manufacturers and practices to include or exclude from her analyses. (Tr. at 4252:1 – 4259:8.) Ms. Allen also conceded that it is possible that manufacturers engaged in more distribution oversight practices than she gave them credit for. (Tr. at 3451:7–10.)

Moreover, Ms. Allen's analysis did not include a single importer or distributor defendant. In addition, the highest "crime gun ratio" Ms. Allen identified for any of the importer defendants in Exhibits 24c and 24d of her report was 1.2. Most of the importer defendants were substantially below 1. When questioned by the Court as to the statistical significance of this finding, Ms. Allen testified that she "did not know" if a ratio of 1.2 was any different from the proportional ratio of 1. (Tr. 2996:24 – 2997:24.)

Defendant's statistical expert, Dr. Wecker, demonstrated that, if Dr. Gundlach's scores for manufacturer practices were used, there was no statistically significant relationship between the number of alleged distribution oversight practices engaged in by a manufacturer and its trace ratio. (Tr. at 4251:17 – 4252:21.) Dr. Wecker also found that Ms. Allen was able to find statistical significance using Dr. Gundlach's scores only by adding one manufacturer (Excel) and deleting another (Walther), even though Ms. Allen included Walther and deleted Excel from her analysis using her own coding of practices. (Tr. at 4253:11 – 4256:2.) Again, not a single importer or distributor defendant was included, and, in fact, defendants' expert, Dr. Wecker, testified that the inclusion of the importer defendants in Ms. Allen's analysis of Dr. Gundlach's various practices destroyed any statistical significance reported by Ms. Allen. (Tr. at 4256:5 – 4257:7.)

Dr. Wecker also tested the robustness of Ms. Allen's findings by adding or deleting manufacturers from the list of 20 manufacturers (out of over 30 defendant manufacturers) that Ms. Allen selected to use in her analysis using her own coding. (Tr. at 4257:8 – 4258:10.) Each time, the statistical significance of Ms. Allen's results disappeared. Id. This is because it was established that the relationship Ms. Allen claims exists between the number of alleged distribution oversight practices and Trace Ratios did not exist when comparing most manufacturers and their Trace Ratios, even if Ms. Allen's methods and data are accepted as correct. (Tr. at 3377:16 – 3378:24.)

Ms. Allen's manufacturer practices regression analyses were not statistically sound and were the result of her arbitrary selections of which manufacturers and data to use. (Tr. at 4258:24 – 4259:8.) Her analyses do not support the conclusions that she reached. (Tr. at 4259:9–13.)

2. Dealer Indicators

Ms. Allen also attempted to use regression analyses to establish that there is a statistically significant relationship between certain characteristics of dealers, e.g., selling firearms later recovered with an obliterated serial number, and that dealer's trace rate (traces divided by sales). (Tr. at 4276:3–17; Pltf. Exh. Allen 15.) In her analysis, Ms. Allen used sales data from Heckler & Koch ("H&K") and Beretta and data from her dealer survey to calculate dealer trace rates. (Tr. at 4278:5–17.) As previously discussed, the sales data obtained from Ms. Allen's Dealer Survey were not reliable given the many failings in her survey design and implementation. (See Section XIII, F, 2, supra.)

It was shown at trial that Ms. Allen also misunderstood and misapplied the sales data from Beretta and H&K. (Tr. at 4294:1 – 4295:16.) For example, Ms. Allen included sales from Beretta Italy and Beretta U.S.A., even though the traces she used in calculating trace rates were only traces involving handguns sold by Beretta Italy. (Tr. at 4294:7–11.) Ms. Allen also used sales data for direct sales from Beretta or H&K to dealers, but used traces arising from both direct sales to dealers and indirect sales to dealers through distributors. (Tr. at 4294:12 – 4295:3.) Another mismatch involved the time periods of sales and traces used by Ms. Allen. (Tr. at 4295:4–10.) As a result, Ms. Allen's regression analyses, contained in Pltf. Exh. Allen 15, involving so-called dealer "indicators" are not reliable. (Tr. at 4296:8–13.)

Setting aside the failings in the data used by Ms. Allen, defense expert Dr. Wecker also was able to demonstrate that the predictive power of Ms. Allen's regressions was virtually undetectable. (Tr. at 4281:2–9.) To determine the predictive power of a purported relationship, e.g., between having a certain dealer characteristic and the dealer's trace rate, statisticians use something called "R square," which distinguishes between relationships that are very strong and helpful in terms of predictive effect from relationships that are of inconsequential predictive value. (Tr. at 4280:6–21.)

Dr. Wecker found that the predictive power of Ms. Allen's results in this area was so tiny that it was of no practical power. (Tr. at 4281:2–13.) Dr. Wecker also found that Ms. Allen's regressions could not distinguish between dealers with high or low trace rates, the very purpose Ms. Allen advanced for her regressions. (Tr. at 4282:24 – 4284:7.) In other words, setting aside those dealers with no traces, whether a dealer had any of the selected "indicators," could not predict whether the dealer would have a high or low trace rate. (Id.) Ms. Allen's regression analyses in this area do not support the existence of any real, meaningful relationship between the so-called dealer indicators and dealer trace rates. (Tr. at 4283:25 – 4284:14.)

3. Traces Related to Straw Purchases

Ms. Allen also attempted to show that there is a statistically significant relationship between a dealer's "yes" answer to Question No. 20 in her Dealer Survey — whether anyone had ever attempted to make a straw purchase at the dealer's store — and a higher number of traces attributed to that dealer. (Tr. at 4268:25 – 4270:10.) It was demonstrated at trial, however, that Ms. Allen's result was a function of her failure to account for the dealer's sales volume. (Tr. at 4272:22 – 4275:4.) When the sales volume variable was added to Ms. Allen's regression analysis, the statistical significance of the alleged relationship disappeared. (Tr. at 4274:9–23.)

Ms. Allen's regression analysis in this area was not statistically sound and did not support her conclusion that a relationship existed between an affirmative answer to Question No. 20 of the Dealer Survey and a dealer's number of traces. (Tr. at 4275:5–12.)

4. Alleged Problem Dealer Groups

Using certain selection criteria, including a requirement that a dealer have 25 or more traces, Ms. Allen placed 1,559 dealers into so-called Problem Dealer Groups. (Tr. at 4297:18 – 4298:9; 4300:7–11.) It was established at trial, however, that there were only 1,880 dealers with 25 or more traces who would be eligible for selection and placement into those so-called Problem Dealer Groups. (Tr. at 4299:1–11; Def. Exh. 779.)

According to the ATF, the concentration of traces among a small percentage of dealers partly reflects the fact that sales are concentrated among a small percentage of dealers. (Tr. at 4302:10–17; Def. Exh. 417 at 5.) Ms. Allen agreed there is a correlation between sales volume and trace volume. (Tr. at 3208:21 – 3209:19.) In the end, Ms. Allen's list of so-called problem dealers was shown to be nothing more than a list mainly of large sales-volume dealers who have a greater likelihood of having a greater number of traces unrelated to any wrongdoing. (Tr. at 4300:17 – 4302:25.)

Given that Ms. Allen set a very low threshold for determining whether a manufacturer or distributor was considered selling firearms through dealers in a so-called Problem Dealer Group, i.e., a total of only 10 traces of any nature among any combination of the 500 dealers in the Problem Dealer Group, it is not surprising that most manufacturers and dealers were found to be associated with dealers in each of the so-called Problem Dealer Groups. (Tr. at 4298:1–25.) This indicates nothing more than that manufacturers and distributors are likely to sell firearms through larger dealers. (Tr. at 4302:13–25; 4400:9–20.)

Ms. Allen's analysis regarding the so-called Problem Dealer Groups was not statistically sound and does not support her conclusions. (Tr. at 4304:9–15.)

5. Flow of Guns

Ms. Allen attempted to show that the difference in severity of state laws explained the flow of guns from one state to another, such as from Georgia or Florida to New York. (Tr. at 4304:22 – 4306:23; Pltf. Exhs. Allen 4-A, 4-B.) It was demonstrated at trial, however, that those who evaluated the strength of different state laws at NERA were not qualified by education or experience to perform such evaluations, and that there was no empirical basis for the weights that were assigned by them to various aspects of the state laws they attempted to evaluate. (Tr. at 3394:14 – 3397:5.)

It also was demonstrated at trial that virtually none of the movement of firearms from one state to another was explained by differences in state laws, even as evaluated by NERA. (Tr. at 4308:10–17; 4320:8–16.) For example, of 1,889 firearms that were sold in Georgia and recovered in New York over a 6 year period only 54 (9 guns per year) were explained by the factor of state law differences, even accepting Ms. Allen's regression model as specified. (Tr. at 4309:13 – 4312:4.) Using Ms. Allen's regression analysis, the difference in laws only explains the movement from Florida to New York of 59 out of 2,591 firearms over the same 6-year period (10 guns per year) (Tr. at 4312:5–21), and only explains the movement of 3 so-called "young guns" over the same 6 year period from Georgia to New York and 3 "young guns" from Florida to New York over the same period. (Tr. at 4313:6–21.) Similar results were obtained when examining Ms. Allen's alleged "oversupply" variable as a possible explanation for the flow of firearms to New York. (Tr. at 4315:14 – 4317:18.)

In her regression analyses concerning the effect of differences in state laws and "oversupply" on the movement of firearms between states, Ms. Allen attempted to calculate distributor sales using data from 14 of 31 available distributors. (Tr. at 4318:2–18.) Defendants' expert, Dr. Wecker, re-ran the analysis using data on background checks of prospective handgun purchasers as a better proxy of actual sales by state and found that the statistical significance of Ms. Allen's alleged relationship between "oversupply" and firearm movement disappeared. (Tr. at 4319:8 – 4320:7.)

NERA's and Ms. Allen's work in this area were shown to be unreliable. Her regression analyses are not statistically sound and do not support her conclusions that differences in state laws or alleged "oversupply" explain why guns are recovered in states different from their state of sale. (Tr. at 4320:8–16.)

6. Percent of Guns Used in Crime

Ms. Allen attempted to calculate the percent of handguns sold in 1990 and, separately, 1996 that were used in violent crime by the year 2000. (Tr. at 4325:1–10; Pltf. Exhs. Allen 105, 106.) She also did a similar calculation for each manufacturer separately for handguns sold in 1996. (Tr. at 4320:23 – 4321:6; Pltf. Exh. Allen 10.)

It was established at trial, however, that the percentages calculated by Ms. Allen were greatly overstated because of various assumptions she made. (Tr. at 4325:11–23.) For example, Ms. Allen assumed, without any basis, that for violent crime incidents involving more than one offender, 50% of the additional offenders carried a handgun. (Tr. at 4326:1 – 4327:18; 3296:15 – 3298:15.) She also assigned values to qualitative responses in a 1983 prisoner survey in a way that would have the effect of overstating her result and inappropriately combined information from two different non-random prisoner surveys involving two different prisoner populations. (Tr. at 3276:3 – 3282:23; 4328:2 – 4334:14.) For example, if a prisoner in the survey answered that he had committed one violent crime, but had owned 12 handguns over his lifetime, Ms. Allen concluded that all 12 handguns had been used to commit violent crimes. (Tr. at 4333:4 – 4334:6.) Overstating the number of handguns used in violent crime from the prisoner survey inflated Ms. Allen's estimates of handguns sold in 1990 or 1996 that are used in violent crime by 2000. (Tr. at 4334:7–14.)

Adjusting for Ms. Allen's unsupported assumptions and her arbitrary choices of data, defendants' expert Dr. Wecker found that her calculations were greatly overstated. (Tr. at 4334:16 – 4337:1.) For example, Dr. Wecker found that only 3.3% of handguns sold in 1990 were recovered in violent crime by 2000, compared to the 18% estimated by Ms. Allen. (Tr. at 4335:12–18; Def. Exh. 782.)

Ms. Allen's analysis was not statistically sound and did not support her conclusions that high proportions of handguns sold in 1990 or 1996 were used in violent crime by the year 2000. (Tr. at 4338:7–15.)

7. Homicides and Number of Dealers

Ms. Allen claimed to have found a statistically significant relationship between the decline in homicides in various states (the "crime states") and the decline in dealers with firearms traced in those states. (Tr. at 4339:2–11.)

Although Ms. Allen claimed to have only looked at gun traces of dealers that originated outside of the crime states, she did not in fact exclude the traces of firearms that originated from those dealers in the crime states. (Tr. at 4339:21 – 4342:3.) Defendants' expert, Dr. Wecker, performed Ms. Allen's regression analysis doing what she claimed she did, i.e., excluding traces of firearms originating in the "crime state," and found no statistically significant relationship existed between the decline in homicides and the decline in traced guns originating from out-of-state. (Tr. at 4342:16 – 4343:21.)

Ms. Allen elected to compare homicides and traces of out-of-business dealers for the years 1994 and 2000. (Tr. at 4344:6–13.) However, it was demonstrated at trial that selecting virtually any other combination of years produced results that were not statistically significant. (Tr. at 4344:6–24; 4346:7 – 4347:3; Def. Exh. 765.)

It was also determined at trial that Ms. Allen's result was caused by including two very low crime states with large percentage changes in their homicide rates between 1994 and 2000. (Tr. at 4345:4–18.) When the homicide data of these two states, Vermont and Hawaii, (7 homicides out of 7,278 total homicides for all states) were excluded, no statistically significant relationship existed between the decline in homicides between 1994 and 2000 and the decline in dealers and their traces over those same years. (Tr. at 4345:19 – 4346:5.)

Even more revealing was the fact that Ms. Allen's claimed relationship between homicide rates and out-of-business dealers disappeared if you examined violent crime rates, not just homicide rates (as Ms. Allen had done in other of her analyses). (Tr. at 4347:4 – 4348:14.)

Ms. Allen's regression analysis in this area was not statistically sound, was the product of various arbitrary choices she made, and did not support her conclusion that out-of-business dealers and their associated traces explains the decline in homicides in the United States. (Tr. at 4348:11 – 4349:12.)

XIV. Dr. Andrew's Analyses of the FTS Database

Dr. Andrews reviewed the FTS Database and did various counts of traced handguns, including handguns recovered in New York, and then set forth, in various exhibits, comparisons of the number of handguns traced by manufacturer, distributor and retail dealer. (See Pltf. Exhs. Andrews 21, 22, 23, 25, 26.)

Dr. Andrews conceded that in order to identify specific distributors and retailers to generate these counts it was necessary to use portions of the FTS Database that were not released to the public and were available to him only pursuant to the Court's protective orders. (Tr. at 2748:22 – 2751:1.)

It was demonstrated at trial that Dr. Andrews did not adjust his comparative counts of traced handguns among manufacturers, distributors and retail dealers to account for, among other things, differences in the length of time a manufacturer, distributor or retail dealer had been in business (Tr. at 2810:5–19), the sales volume of the retail dealer (Tr. at 2828:25 – 2829:9), or the ages of the firearms that were traced (Tr. at 2810:20–24; 2811:16 – 2813:3.)

1 As a result, the comparisons Dr. Andrews attempts to make in counts of traces among manufacturers, distributors or retailers are not meaningful and cannot serve as a basis to conclude that any particular manufacturer, distributor or retail dealer is better or worse than any other manufacturer, distributor or dealer. Indeed, Dr. Andrews concedes that he has not done anything to attempt to link traces to any wrongdoing by a manufacturer, distributor or retailer. (Tr. at 2827:2–25.)

2 Dr. Andrews' counts of firearms traced also were not limited to firearms made or sold by the defendants in the case. (Tr. at 2835:22 – 2836:11.)

Dr. Andrews also did counts of firearms recovered in New York that were sold new outside of New York, but conceded that he did not do any work or research in connection with what causes the flow of guns from one jurisdiction to another. (Tr. at 2842:14–24.)

Dr. Andrews did not look at how many traced firearms were sold through a straw purchase, by a corrupt dealer, or by a non-storefront dealer. (Tr. at 2826:6–16.) He also does not know how many firearms sold by a manufacturer or distributor were sold as part of a multiple sale or were stolen from a dealer. (Tr. at 2826:17 – 2827:8.)

XV. Dr. Gundlach's Analysis of Defendants' Practices

The stated basis for Dr. Gregory Gundlach's opinions was an analysis that he performed allegedly using "content analysis," whereby he and several of his research assistants reviewed documents and deposition testimony from the various defendants in an attempt to draw inferences as to which defendants did or did not employ any one of 14 "countermarketing" strategies Dr. Gundlach had identified. (Tr. at 1462:5 – 1463:2.)

The results of this analysis were presented to the jury on charts that had either green or red marks next to each defendant's name for the various practices. (Pltf. Exhs. 2202, 2246.) A green mark for a particular practice indicated that Dr. Gundlach had inferred that the defendant did engage in that particular practice, and a red mark indicated that Dr. Gundlach had inferred that the defendant did not engage in that particular practice. (Tr. at 1539:8–18.)

Dr. Gundlach's analysis of "countermarketing" activities lacked objectivity.

1 By Dr. Gundlach's own admission, one of the "hallmarks" of the analytic technique of "content analysis" is an "objective" analysis of the relevant materials to make certain inferences as to the content of those materials. (Tr. at 1807:17–21.)

2 Dr. Gundlach was unable to perform an objective analysis of the defendants' testimony and documents since he was only provided with documents hand picked by the plaintiff's attorneys from the various defendants' document productions. (Tr. at 2082:21 – 2083:3.)

3 Dr. Gundlach did not review all the materials produced by the defendants in this case (Tr. at 1917:12–20) and admitted that he was not aware of what documents the defendants had been asked to produce. (Tr. at 2083:13–23.)

4 Dr. Gundlach's research assistants, who conducted the bulk of this "content analysis," knew that Dr. Gundlach was testifying on behalf of the plaintiff and knew the purpose of their assignment, further impacting any "objectivity" of the review. (Tr. at 1877:19–25.)

Dr. Gundlach's analysis of "countermarketing" activities did not produce reliable results.

1 In some cases, the plaintiff failed to ask questions of a particular defendant in either discovery requests or the deposition of the defendant as to a particular practice included in Dr. Gundlach's charts. For example, defendant Alamo was not asked about its policy as to selling to indicted dealers at either its deposition or in the interrogatories served on Alamo. (Tr. at 2164:18–24; 2167:15–23.) In fact, Dr. Gundlach did not know whether the plaintiff had asked any defendant whether it would continue to sell to indicted dealers at either the defendant's deposition or in interrogatories. (Tr. at 2174:14–20.)

2 In any instances where no evidence existed either way as to a particular practice for a particular defendant, Dr. Gundlach assigned that defendant a red mark on his chart indicating that the particular defendant did not engage in that particular activity. (Tr. at 2049:6–13; 2056:16–25.)

3 Because he treated them as the same, it is impossible to differentiate between those categories for which Dr. Gundlach actually had evidence that a defendant did not take the specified action and the categories for which he merely assumed a practice did not exist.

The "countermarketing" strategies that were the subject of his analysis were created by Dr. Gundlach. ( Tr. at 1531:10 – 1534:16.)

Although Dr. Gundlach acknowledges that most of the "diversion" of firearms occurs at the retail level or after, he has done no research or surveys to determine what steps related to "countermarketing" are being undertaken by firearms retailers. (Tr. at 1881:23 – 1882:3.)

Before being asked to consult in this litigation, Dr. Gundlach had no experience in the firearms industry. (Tr. at 1814:4–17.) Dr. Gundlach had no professional marketing experience with firearms as consumer product before being asked by the plaintiff to undertake an analysis for this case. (Tr. at 1434:3–10.)

Dr. Gundlach has no experience with law enforcement or the criminal diversion of products from a distribution chain. Dr. Gundlach has never been asked by ATF or any other law enforcement agency to opine as to how best to prevent the criminal diversion of firearms. (Tr. at 1889:18–22 .)

Dr. Gundlach has not studied ATF or its procedures "at length." (Tr. at 1950:23–24), and he has not studied the relationship between the extensive federal, state and local firearms statutes and regulations and crime or the criminal division of firearms. (Tr. at 1954:3–4.)

Dr. Gundlach could not identify a single firearm manufactured and/or sold by any of the defendants in this case that was acquired through a straw purchase, sold at a gun show, sold by a non-storefront dealer, sold by a "non-stocking" dealer, sold by a "corrupt" dealer, or stolen from an FFL or during transit because of inadequate security and that was later recovered in New York. (Tr. at 1889:18 – 1890:11; 1891:6–11; 1891:16–21; 1891:22  – 1892:3; 1899:2–8; 1899:13–20; 1900:3–9; 2133:21 – 2134:4.)

Dr. Gundlach testified that trade associations can play a critical role in the culture of an industry. The basis of this is that they often involve members, multiple members, from the industry, so they provide a convenient process and mechanism for disseminating information, providing communications, and through that process can create an overall culture of how the industry goes about its marketing task. (Tr. at 1452:16 – 1453:2.)

Dr. Gundlach is aware that the industry disseminates its "Don't Lie For the Other Guy" materials through the NSSF, yet constructed his chart in a manner that did not allow any defendant to obtain a green mark for "countermarketing" for those efforts. (Pltf. Exh. 2022.)

conclusions of Law

I. STANDING — GENERAL

Plaintiff NAACP failed to prove that it has standing under Article III of the United States Constitution to prosecute this public nuisance claim against any of the defendants.

1 Federal courts are charged under Article III of the United States Constitution with the particular role of resolving "cases and controversies" – specific disputes between individual parties. See Allen v. Wright, 468 U.S. 737, 750 (1984); NAACP v. Acusport Corp., 210 F.R.D. 446, 455 (E.D.N.Y. 2002).

2 Principles of separation of powers as reflected in Article III preclude federal courts from hearing a matter that is not a case or controversy. See Vt. Right to Life Comm., Inc. v. Sorrell, 221 F.3d 376, 381–82 (2d Cir. 2000) ("It would violate principles of separation of powers for us to hear a matter that was not a case or controversy and therefore not delegated to the [federal] judiciary under Article III.").

3 So that a court may know that an actual case or controversy exists, a plaintiff must establish that he possesses the proper "standing" to assert and maintain a cause of action against any individual defendant. See Warth v. Seldin, 422 U.S. 490, 498 (1975) (doctrine of standing "is founded in concern about the proper – and properly limited – role of courts in a democratic society"); Lujan v. Defenders Wildlife, 504 U.S. 555, 560 (1992) ("[T]he core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III."); see also Valley Forge Christian Coll. v. Am. United for Separation of Church & State, Inc., 454 U.S. 464, 473 (1982) ("Were the federal courts merely publicly funded forums for the ventilation of public grievances or the refinement of jurisprudential understanding, the concept of 'standing' would be quite unnecessary."); Lee v. Bd. of Governors of the Fed. Reserve Sys., 118 F.3d 905, 910 (2d Cir. 1997) ("Article III of the Constitution limits the authority of the federal courts to decide only actual cases and controversies."); NAACP, 210 F.R.D. at 453 (plaintiff "bears the burden of establishing the elements of standing and the court's subject matter and personal jurisdiction").

XVI. Standing — Direct

The NAACP failed to prove injury to itself as an organization sufficient to give it standing under Article III to pursue this public nuisance claim against any of these defendants.

1 The Supreme Court has set forth the three elements that must be present for a plaintiff to possess, in his own right, the "irreducible constitutional minimum of standing." Lujan, 504 U.S. at 560.

2 The first requirement for standing in plaintiff's own right is that the plaintiff must have suffered an "injury in fact" that "is (a) concrete and particularized . . . and (b) actual or imminent, not conjectural or hypothetical." Id. (internal citations and quotations omitted).

3 The second requirement for standing in plaintiff's own right is that there must be a "causal connection" between the plaintiff's injury and the conduct of the defendant(s) complained of, which means that the injury must be "'fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court.'" Id. (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41–42 (1975)).

4 The third requirement for standing in plaintiff's own right is that "it must be 'likely,' as opposed to merely 'speculative,' that the injury will be 'redressed by a favorable decision.'" Id. at 561 (quoting Simon, 426 U.S. at 38, 43).

The NAACP failed to show that it has suffered an "injury-in-fact" sufficient to confer standing upon it to pursue the injunctive relief sought in this action.

1 To establish the injury-in-fact required for standing, a party seeking injunctive relief must show that it faces "imminent" and "certain impending" injury warranting the issuance of an injunction. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 185 (2000) ("a plaintiff must demonstrate standing separately for each form of relief sought").

2 To establish the injury-in-fact required for standing, a party seeking injunctive relief also must show that the threatened harm is irreparable. Halkin v. Helms, 690 F.2d 977, 1005-06 (D.C. Cir. 1982) ("To be entitled to invoke the injunctive remedy, a plaintiff must show 'not only that he personally faces an imminent threat of harm but also that the threatened harm is irreparable.'") (quoting Reporters' Comm. for Freedom of the Press v. AT&T, 593 F.2d 1030, 1067 (D.C. Cir. 1978)).

3 Past injuries do not establish standing for injunctive relief in the absence of continuing, present adverse effects. O'Shea v. Littleton, 414 U.S. 488, 495-96 (1974) ("Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief … if unaccompanied by any continuing, present adverse effects.").

Plaintiff's sole evidence of alleged injury-in-fact to the NAACP as an organization – alleged security renovations "because of threats and walk-ins" and the general idea, unsupported with any specifics, that people were less likely to participate in NAACP activities because they were afraid to go out at night – was insufficient to confer standing on the NAACP as an organization in its own right.

1 Expenses incurred because of walk-ins and threats by unidentified persons were not shown to be caused by any defendant's conduct or even because of any defendant's firearms. See Ass'n of Community Org. for Reform Now ("ACORN") v. Fowler, 178 F.3d 250, 360 (5th Cir. 1999).

2 Plaintiff did not provide evidence that the cost of increased security or the alleged effect on people meeting at night had, in fact, impaired or altered its operations or even limited its membership. See Fair Hearing Council of Suburban Philadelphia v. Montgomery Newspapers, 141 F.3d 71, 76-78 (3rd Cir. 1998) (holding that bare allegations of injury from "frustration of mission" not enough; plaintiff required to show it altered its operations).

3 Injury to an organization sufficient to establish standing requires that the organization be "perceptibly impaired" by the alleged actions of the defendants, which plaintiff did not prove. Id.; see also Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982) (defendant's actions only result in sufficient injury for standing purposes where they "perceptibly impair" the plaintiff's ability to effect its organizational purposes); Fair Hous. Council, 141 F.3d at 76-80 (plaintiff failed to set forth specific facts substantiating any "perceptible impairment of its mission").

4 Purely economic costs, such as the security renovations by the NAACP, are not "irreparable" because the plaintiff can be compensated for such expenses through money damages, if appropriate, giving the plaintiff an adequate remedy at law. See Jayaraj v. Scappini, 66 F.3d 36, 39 (2d Cir. 1995).

5 Evidence of past events does not demonstrate the "certain impending" or "imminent" injury that the NAACP was required to show to establish standing to seek injunctive relief. See Friends of the Earth, Inc., 528 U.S. at 185; Gen. Fireproofing Co. v. Wyman, 444 F.2d 391, 393 (2d Cir. 1971) ("An injunction 'will not be granted against something merely feared as liable to occur at some indefinite time in the future.'"); City of Los Angeles v. Lyons, 461 U.S. 95, 107 n.8 (1983); Am. Fed'n. of RR Police, Inc. v. Nat'l RR Passenger Corp., 832 F.2d 14, 17 (2d Cir. 1987).

Plaintiff did not meet its burden of proof that either the security renovation or the public's fear of going out at night was causally connected to any defendant's conduct or even any defendant's firearms; indeed, plaintiff's witness's testimony was that the security renovations were because of the actions of independent actors making "threats." See Lujan, 504 U.S. at 560 (alleged injuries cannot be "the result of some independent action of some third party not before the court"); see also NAACP, 210 F.R.D. at 455.

Plaintiff did not meet its burden of proof that either the threats against it or the public's perceived fear of going out at night would likely be remedied by the relief sought in this action. Lujan, 504 U.S. at 571 (no standing exists if it is, at best, "conjectural," rather than "likely" that the prospective injunctive relief sought will remedy the claimed injuries); see also Simon, 426 U.S. at 43-44; Fulani v. League of Women Voters Educ. Fund, 882 F.2d 621, 628 n.6 (2d Cir. 1989) (requiring "substantial likelihood that the relief requested will have a substantial ameliorative effect on the specific injury alleged") (emphasis added); Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222, 235 (2001) (" . . . none of plaintiffs' proof demonstrated that a change in marketing techniques would likely have prevented their injuries"); Greenberg v. Bush, 150 F. Supp. 2d 447, 455 (E.D.N.Y. 2001) (plaintiff required to show, but could not, that if relief granted, "the asserted violent actions directed at [them] will cease"); NAACP, 210 F.R.D. at 456-57.

XVII. Standing — Representational

The NAACP failed to prove the requirements for standing to pursue this public nuisance claim against any of these defendants as a representative of its members because it failed to prove that any member would have standing to sue in his or her own right or that it could pursue such a claim without the participation of individual members.

1 To have standing to bring a claim in a representative capacity, a plaintiff must prove all of the following: (i) the association's members must otherwise have standing to sue in their own right (i.e., they must meet the same requirements of actual or imminent injury, causal connection and redressability); (ii) the interests sought to be protected must be germane to the organization's purpose, and; (iii) neither the claim asserted nor the relief requested would require the participation of the individual association members in the lawsuit. See Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 343 (1977); Friends of the Earth, Inc., 528 U.S. at 181; see also NAACP, 210 F.R.D. at 457-58.

Plaintiff did not meet its burden of proof that any member of the NAACP would have standing to bring this public nuisance claim for injunctive relief in his or her own right.

1 Plaintiff presented no evidence of injury – past or imminent – to any particular NAACP member.

2 Evidence of past occurrences, in and of themselves, would not establish that any member is threatened with imminent injury requiring injunctive relief. See Lyons, 461 U.S. at 102; O'Shea, 414 U.S. at 495-96; Socialist Workers Party v. Attorney General of the United States, 642 F. Supp. 1357, 1425 (S.D.N.Y. 1986); see also NAACP, 210 F.R.D. at 460 (recognizing that any alleged past injury attributed to individual NAACP members "does not give rise to the sort of 'real and immediate likelihood of future injury' to each individual that must be shown in order for standing to exist").

3 Plaintiff did not present any statistical or demographic evidence demonstrating the threat of future injury specific to NAACP members in New York. NAACP, 210 F.R.D. at 461 (statement by this Court that "the probability of harm through injury of one of the [NAACP New York state members] may be shown by statistical and demographic analysis to be sufficiently great as to support representational standing").

Plaintiff did not meet its burden of proving that any past or imminent future injuries to NAACP members was either causally connected to any defendant's conduct or was redressable by the requested injunctive relief. Id. at 460-61.

To the extent plaintiff had attempted to rely on the existence of a viable claim by one of its members against the defendants, proof of such claim would have required the participation of that member, thus precluding representational standing. See Hunt, 432 U.S. at 343 ("neither the claim asserted nor the relief requested requires the participation of individual members in this lawsuit"); Harris v. McRae, 448 U.S. 297, 321 (1980); Hamilton v. Accu-Tek, 935 F. Supp. 1307, 1331-32 (E.D.N.Y. 1996) (recognizing that concerns about the need for individualized proof precluded consolidated treatment of unrelated plaintiffs' claims regarding the distribution methods of firearms manufacturers).

XVIII. Diversity Jurisdiction

Plaintiff failed to establish complete diversity of citizenship between the national members on behalf of whom it sued and the defendants as required by 28 U.S.C. § 1332.

1 The only ground for subject matter jurisdiction asserted by plaintiff was diversity of citizenship. (Fifth Am. Comp. ¶ 8.)

2 Plaintiff brought this action in its representative capacity "to protect the well-being and security of its membership," which the plaintiff acknowledges includes members in "all 50 states and the District of Columbia." (Fifth Am. Comp. ¶¶ 10-12.)

3 When a party sues in a representative capacity, "the citizenship of the represented individuals controls for diversity purposes, as they are the real and substantial parties to the dispute." Airlines Reporting Corp. v. S&N Travel, Inc., 58 F.3d 857, 861 (2d Cir. 1995).

4 The Court must examine the citizenship of every member of the NAACP, which brought suit in a representative capacity as a "national organization" (Fifth Am. Comp. ¶ 10). See Carden v. Arkoma Assos., 494 U.S. 185, 190, 195 (1990) (rejecting "the contention that to determine, for diversity purposes, the citizenship of an artificial entity, the court may consult the citizenship of less than all of the entity's members"); Rhulen Agency, Inc. v. Alabama Ins. Guar. Ass'n, 896 F.2d 674, 677-78 (2d Cir. 1990).

5 "[T]he district court cannot retroactively create diversity jurisdiction if it did not exist when the complaint was filed. … Instead, the district court must dismiss the action." Associated Ins. Mgmt. Corp. v. Arkansas Gen. Agency, Inc., 149 F.3d 794, 796-97 (8th Cir. 1998) (citations omitted).

6 Plaintiff's Fifth Amended Complaint establishes that the NAACP's members are citizens of all 50 states and that the defendants are citizens of at least 30 states. (Fifth Am. Comp. ¶¶ 10-273.)

XIX. Personal Jurisdiction

Except as to those defendants who have previously asserted a lack of personal jurisdiction, the Court has personal jurisdiction over the defendants.

XX. Res Judicata

This action is barred on the basis of res judicata by the dismissal of People of the State of New York v. Sturm, Ruger & Co., No. 4502586/00 (N.Y. Sup. Ct. Aug. 10, 2001) (appeal pending) ("State of New York case") on the grounds that the State could not state a public nuisance claim against firearms manufacturers and distributors as a matter of law.

1 A private citizen has no cause of action to enjoin a public nuisance where the State, acting as parens patriae, has already instituted an action to enjoin the same alleged nuisance. See United States v. Olin Corp., 606 F. Supp. 1301, 1304, 1307 (N.D. Ala. 1985) ("once a state represents all its citizens in a parens patriae suit, a consent decree or final judgment entered in such a suit is conclusive upon those citizens and is binding upon their rights"); 66 C.J.S. Nuisances § 65(b), at 611; 58 Am. Jur. 2d Nuisances § 248, at 729; accord Badgley v. City of New York, 606 F.2d 358, 364-65 (2d Cir. 1979) (reversing judgment for individual riparian landowners where Commonwealth of Pennsylvania had "represented all of its citizens" in previous action to determine allocation of riparian rights and terms of consent decree entered into by the Commonwealth therefore were "conclusive upon all Pennsylvania citizens and bind their rights").

2 The first requirement for application of res judicata under New York law is met because the NAACP is encompassed within the scope of the "People of the State of New York," which was the plaintiff in the State of New York case. See In re Durso Supermarkets, Inc., 1995 U.S. Dist. LEXIS 18440, at *9 (S.D.N.Y. 1995) ("Under New York law, res judicata does not require literal privity: it bars the later claim if there is sufficient identity of interest between the earlier party and the later party.") (citing Alpert's Newspaper Delivery, Inc. v. New York Times Co., 876 F.2d 266, 270 (2d Cir. 1989)).

3 Where the State is a party to a suit involving the State's sovereign interests, the State is deemed to represent all of its citizens as parens patriae, New Jersey v. New York, 345 U.S. 369, 372 (1953), and the citizens of that State are bound by the judgment in the suit. City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320, 340-41 (1958); Satsky v. Paramount Communications, Inc., 7 F.3d 1464, 1470 (10th Cir. 1993); Olin Corp., 606 F. Supp. at 1304; Menzel v. County Pub. Utils. Corp., 501 F. Supp. 354, 357-58 (E.D. Va. 1979).

4 When the State brings a public nuisance action, it does so "on behalf of itself and as parens patriae on behalf of all residents and citizens of the State of New York," United States v. Hooker Chemicals & Plastics Corp., 749 F.2d 968, 972 (2d Cir. 1984), and "[t]he real party in interest in this action is the People." State of New York v. Bridgehampton Road Races Corp., 44 A.D.2d 725, 726 (2d Dep't 1974) (defendant's request to identify names of individual residents adjoining racetrack denied in parens patriae action by State Attorney General to abate alleged public nuisance); see also Greentree at Murray Hill Condo. v. Good Shepherd Episcopal Church, 146 Misc. 2d 500, 511 (Sup. Ct., New York County 1989) ("[T]he proper party to bring suit to abate a public nuisance is the Attorney-General or the chief executive officer of a county or town.").

5 The second requirement for the application of res judicata under New York law is met because this case involves the same cause of action for the same type of relief as that involved in the State of New York case. Compare NAACP's Fifth Am. Comp. ¶¶ 1, 312-315 (asserting single cause of action for public nuisance for injunctive relief intended to "change[] . . . the marketing, distribution and sales practices of defendants and claiming that defendant gun manufacturers, importers and distributors have "created, contributed to, maintained and facilitated" an underground market in crime guns "through their unreasonable distribution system") with State of New York, slip op. at 1 (action included statutory and common law claims against gun manufacturers, importers and distributors brought "to obtain abatement of an alleged public nuisance arising from the manufacture and distribution of handguns that are unlawfully possessed and used in New York") and State of New York Comp. ¶¶ 1, 54, 66.

6 The final requirement for the application of res judicata under New York is met because the dismissal of the State of New York case constitutes a final judgment on the merits, even though the judgment is on appeal. See, e.g., Slater v. American Mineral Spirits Co., 33 N.Y.2d 443 (1974) (dismissal because then-prevailing law did not allow recovery against third parties under facts alleged); Lampert v. Ambassador Factors Corp., 266 A.D.2d 124 (1st Dep't 1999) (dismissal based on absence of allegations that would establish necessary element of fraud claim); Syllman v. Creditor, 261 A.D.2d 395 (2d Dep't) (prior dismissal of claims arising from same transaction for failure to state a cause of action), app. denied, 94 N.Y.2d 753 (1999); Petrella v. Siegel, 843 F.2d 87, 90 (2d Cir. 1988) (determination of New York State Supreme Court "is entitled to res judicata effect, even though [the losing party] may be appealing that determination"). Cf. Hodge v. Hotel Employees, 269 A.D.2d 330, 331 (1st Dep't 2000) (dismissal "solely for defects in the pleading" is not entitled to res judicata effect).

XXI. Role of Advisory Jury

"Advisory juries are particularly useful in cases in which 'there are special factors … which suggest that a jury composed of members of the community would provide the Court valuable guidance in making its own findings and conclusions.'" NAACP v. American Arms, Nos. 99 Civ. 3999, 99 Civ. 7037 (JBW) Memorandum and Order (Oct. 1, 2002) (hereinafter "Oct. 1, 2002 Order"), at 28, quoting Skoldberg v. Villani, 601 F. Supp. 981, 982 (S.D.N.Y. 1985).

"Because advisory juries permit community participation and may incorporate the public's view of morality and changing common law, their use is particularly appropriate in cases involving community-based standards." Oct. 1, 2002 Order at 29.

"Views on important issues impinging on national policy may be obtained from advisory juries." Id.

"It is appropriate to take into consideration the values and standards of the community through the use of an advisory jury in determining whether the conduct of the defendant gun manufacturers and distributors illegally endangers the public health, safety, and peace. The views of an advisory jury may be 'an important part of the data taken into consideration in arriving at the court's independent conclusion.'" Oct. 1, 2002 Order at 32, quoting Birnbaum v. United States, 436 F. Supp. 967, 988 (E.D.N.Y. 1977), aff'd in relevant part, 588 F.2d 319 (2d Cir. 1978).

"This case implicates important questions of public policy, adding weight to advice from a jury representative of our diverse community." Oct. 1, 2002 Order at 32.

XXII. Public Nuisance — General

No basis exists under current New York law to extend the public nuisance cause of action to defendants' alleged conduct here, consisting of the lawful manufacture, distribution and sale of non-defective handguns later diverted by third parties such that they are illegally possessed in New York by persons wholly unrelated to defendants.

1 The public nuisance cause of action has been applied by New York courts in two situations: (i) where the purported nuisance involved a defendant's improper use of property or improper conduct that harmed property (i.e., land, air or water pollution) or people in the vicinity of property (see, e.g., Copart Indus., 41 N.Y.2d at 566; New York Trap Rock, 299 N.Y. at 79); and (ii) where the defendant violated a specific statute or ordinance (see, e.g., City of New York v. Andrews, 186 Misc. 2d 533 (Sup. Ct. Queens County 2000)).

2 Where public nuisance has been applied by New York courts, it involved unique, local, specifically abatable conduct under the defendants' control; New York courts have not applied public nuisance liability on a product manufacturer where injury is inflicted by the criminal misuse of its non-defective, lawful product by third parties not within the manufacturer's control. See, e.g., Sabater ex. rel. Santana v. Lead Indust. Ass'n, Inc., 183 Misc. 2d 759, 802 (Sup. Ct. Bronx County 2000); Blessington v. McCrory Stores Corp., 198 Misc. 291, 300-01 (Sup. Ct. Queens County 1950), aff'd, 279 A.D. 807 (2d Dep't 1952); State v. Wright Hepburn Webster Gallery, Ltd., 64 Misc. 2d 423, 424-29 (Sup. Ct. N.Y. County 1970), aff'd, 323 N.Y.S.2d 389 (1st Dep't 1971).

3 In the absence of a basis under New York law to apply public nuisance to defendants' conduct, this Court sitting in diversity should not extend theories of liability where it "would not involve applying settled New York law to the facts, but would significantly extend its principles well beyond the limits of the reported New York cases. A federal court should not make such a policy-based extension of state law, a development better left to the state's own courts or its legislature." Garland v. Herrin, 724 F.2d 16, 20 (2d Cir. 1983); see also Maska U.S., Inc. v. Kansa General Ins. Co., 198 F.3d 74, 80 (2d Cir. 1999) ("[I]n a diversity case the federal courts are not free to develop their own notions of what should be required by the public policy of the state, but are bound to apply the state law as to these requirements."), quoting Cornhellier v. American Cas. Co., 389 F.2d 641, 644 (2d Cir. 1968); Pahuta v. Massey-Ferguson, Inc., 170 F.3d 125, 134 (2d Cir. 1999) ("We are bound . . . to apply the law as interpreted by New York's intermediate appellate courts . . . unless we find persuasive evidence that the New York Court of Appeals, which has not ruled on this issue, would reach a different conclusion.").

XXIII. Public Nuisance — Burden of Proof

In bringing a public nuisance cause of action and seeking injunctive relief, the NAACP had the burden of proving each element of its claim by clear and convincing evidence. DeStefano v. Emergency Hous. Group, 281 A.D.2d 449, 451 (2d Dep't 2001); County of Sullivan v. Filippo, 64 Misc. 2d 533, 554 (Sup. Ct. 1970); City of New York v. 777-779 Eighth Ave. Corp., 640 N.Y.S.2d 546, 546-47 (1st Dep't 1996); City of Rochester v. Premises Located at 10-12 S. Washington St., 687 N.Y.S.2d 523 (Sup. Ct. Monroe County 1988); Court Exh. 4 of 5/7/03 (Jury Charge) at 9.

XXIV. Public Nuisance — Elements

Under New York law, a public nuisance is "conduct that amounts to a substantial interference with the exercise of a common right of the public, thereby offending public morals, interfering with the use by the public of a public place or endangering or injuring the property, health, safety or comfort of a considerable number of persons." 532 Madison Ave. Gourmet Foods, Inc. v. Finlandia Center, Inc., 96 N.Y.2d 280, 292 (2001) (internal citation omitted); accord Greentree at Murray Hill Condo, 146 Misc. 2d at 511 (a nuisance "consists of conduct or omissions which offend, interfere with or cause damage to the public in the exercise of rights common to all"), citing New York Trap Rock Corp. v. Town of Clarkstown, 299 N.Y. 77, 80 (1949); Copart Indus., Inc. v. Consolidated Edison Co. of New York, Inc., 41 N.Y.2d 564, 568 (1977).

The elements that the NAACP was required to prove as to each defendant to prevail on its public nuisance claim were as follows: (i) the defendant unreasonably interfered with a public right; (ii) the defendant's conduct proximately caused plaintiff's injury; and (iii) plaintiff suffered a special injury different in kind than the harm suffered by the general public. 532 Madison Ave., 96 N.Y.2d at 292 ("substantial interference with the exercise of a common right of the public"); Copart Indus., 41 N.Y.2d at 568 ("conduct or omissions which offend, interfere with or cause damage to the public in the exercise of rights common to all….[A]n individual . . . may maintain an action [for public nuisance] when he suffers special damage from a public nuisance."); Beaver v. Batrouny, 419 N.Y.S.2d 391, 392 (N.Y. App. Term 1979) (defendants' "conduct must have been unreasonable and must have substantially interfered with the rights of others"); Restatement (Second) of Torts § 821B ("A public nuisance is an unreasonable interference with a right common to the general public."); § 821B cmt. e ("defendant is held liable for a public nuisance if his interference with the public right was intentional or was unintentional and otherwise actionable under the principles controlling liability for negligent or reckless conduct"); cf. Court Exh. 4 of 5/7/03 (Jury Charge) at 11-12.

Plaintiff failed to establish that any defendant is liable for public nuisance related to the marketing and distribution of handguns.

XXV. Public Nuisance — Unreasonable Interference

To establish that a defendant unreasonably interfered with a public right, plaintiff was required to show that each defendant acted negligently or intentionally. See Copart Indus., 41 N.Y.2d at 568; Wright Hepburn, 64 Misc. 2d at 427; Restatement (Second) of Torts § 821B, cmt. e; Court Exh. 4 of 5/7/03 (Jury Charge) at 13.

A. Negligence Theory

There was no evidence presented at trial that would support the existence of a duty of care on the part of any of these defendants to the NAACP or its members, thus precluding negligence as a basis for plaintiff's public nuisance claim. Hamilton, 96 N.Y.2d 222; contra Court Exh. 4 of 5/7/03 (Jury Charge) at 14.

Defendants do not owe plaintiff a duty to exercise reasonable care in the marketing and distribution of the handguns they manufacture and distribute for the following reasons:

1 Under New York law, "'[a] defendant generally has no duty to control the conduct of third persons so as to prevent them from harming others, even where as a practical matter defendant can exercise such control.'" Hamilton, 96 N.Y.2d at 233 (quoting D'Amico v. Christie, 71 N.Y.2d 76, 88 (1987).

2 "A duty may arise, however, where there is a relationship between either defendant and a third-party tortfeasor that encompasses defendant's actual control over the third person's actions, or between defendant and plaintiff that requires defendant to protect plaintiff from the conduct of others." Hamilton, 96 N.Y.2d at 233.

3 Although plaintiff contended that the NAACP and its members were threatened by unidentified third parties who illegally possess and use handguns in New York, plaintiff presented no evidence of a relationship between any defendant in this case and any third-party tortfeasor that permitted any defendant to exert actual control over the tortfeasor's actions.

4 Plaintiff presented no evidence of any relationship between any defendant and the NAACP or its members that would require the defendant to protect the NAACP or its members from those who illegally possess and misuse guns.

5 Under New York law, a duty will not be imposed in the absence of a "tangible showing that defendants were a direct link in the causal chain that resulted in [a] plaintiff's injuries, and that defendants were realistically in a position to prevent the wrongs." Hamilton, 96 N.Y.2d at 234.

6 In this case, plaintiff did not present any evidence that any defendant was a link in the causal chain that resulted in any injury to the NAACP or its members, or that defendants were realistically in a position to prevent the harm alleged by the NAACP.

7 Because plaintiff did not identify the source of even a single firearm that may have been used to threaten or injure the NAACP or its members, plaintiff necessarily did not show that any such gun "came from a source amenable to the exercise of any duty of care that plaintiff[] would impose upon defendants." Hamilton, 96 N.Y.2d at 234.

No evidence was presented at trial that is inconsistent with the holding in Hamilton:

1 There was no evidence that defendants knew or had reason to know that they were selling to distributors or retailers engaged "in substantial sales of guns into the gun-trafficking market on a consistent basis." Hamilton, 96 N.Y.2d at 237.

2 Trace data alone does not provide manufacturers and distributors with knowledge or notice of wrongdoing by a dealer or an individual. Hamilton, 96 N.Y.2d at 237 n.5.

3 Trace data "does not reveal whether any given [Federal Firearms Licensee]'s high incidence of crime gun sales is attributable to irresponsible conduct, or merely reflects a high volume of legal sales or some other activity . . . over which the FFL has no control." Hamilton, 96 N.Y.2d at 237 n.5; see also Commerce in Firearms in the United States (Feb. 2000) at 22-23 (Pltf. Exh. LT-3).

4 Determining whether an FFL is engaged in misconduct requires a regulatory inspection or criminal investigation by ATF. Id.

5 Manufacturers and distributors do not have a duty to "analyze [trace] requests to locate retailers who disproportionately served as crime gun sources, and cut off distributors who do business with them." Hamilton, 96 N.Y.2d at 238.

6 It is "neither feasible nor appropriate" for manufacturers and distributors "to investigate and identify corrupt dealers." Hamilton, 96 N.Y.2d at 238.

7 Manufacturers and distributors "should not make any attempt to investigate illegal gun trafficking on their own since such attempts could disrupt pending criminal investigations and endanger the lives of undercover officers." Hamilton, 96 N.Y.2d at 238.

8 Plaintiff did not present any evidence of a corrupt FFL or core group of corrupt FFLs that could support the creation of a duty on the part of defendants. Hamilton, 96 N.Y.2d at 237 n.5.

9 Plaintiff did not present any evidence that any defendant in this case ever sold a gun to a corrupt FFL or core group of FFLs, let alone that any defendant knew or had reason to know that it was selling to a corrupt FFL or FFLs.

Even if the Court imposed a general duty on defendants to act as reasonably prudent manufacturers, importers or distributors, cf. Court Exh. 4 of 5/7/03 (Jury Charge) at 14, plaintiff did not meet its burden of proof to show that any defendant acted negligently in the marketing or distribution of handguns.

B. Intentional Conduct Theory

Plaintiff did not meet its burden of proof that any defendant intentionally interfered with a public right in New York.

"[A]n interference with a public right is intentional if the actor (a) acts for the purpose of causing it or (b) knows that it is resulting or is substantially certain to result from his conduct. Restatement (Second) of Torts § 825; see also Copart Indus. 41 N.Y.2d at 571 (citing Restatement § 825 in context of private nuisance claim); Gussack Realty Co. v. Xerox Corp., 224 F.3d 85, 93 (2d Cir. 2000) (same); accord Court Exh. 4 of 5/7/03 (Jury Charge) at 14.

"Mere knowledge and appreciation of a risk is not the same as the intent to cause injury." Finch v. Swingly, 42 A.D.2d 1035, 1036 (4th Dept. 1973); see also Restatement (Second) of Torts § 825 cmt. c. ("It is not enough to make an invasion intentional that the actor realizes or should realize that his conduct involves a serious risk or likelihood of causing the invasion. He must either act for the purpose of causing it or know that it is resulting or substantially certain to result from his conduct.").

General knowledge that some criminals obtain firearms through certain types of retail sales conducted by third parties is not sufficient to show intentional interference with a public right by the manufacturers and distributors.

There was no evidence, and plaintiff therefore did not meet its burden of proof, that any defendant acted for the purpose of causing harm to the public in New York; indeed, the evidence established that defendants do not want their guns used in crime.

There was no evidence, and plaintiff therefore did not meet its burden of proof, that any defendant knew that harm to the public in New York was resulting or was substantially certain to result from its conduct.

There was no evidence, and plaintiff therefore did not meet its burden of proof, that any defendant sold a gun to an unlawful purchaser.

There was no evidence, and plaintiff therefore did not meet its burden of proof, that any defendant sold a gun in violation of any federal, state, or local law or regulation.

There was no evidence, and plaintiff therefore did not meet its burden of proof, that any defendant sold a gun to another Federal Firearms Licensee with knowledge or reason to know that that Federal Firearms Licensee would sell the gun to an unlawful purchaser.

Trace data does not provide evidence of intentional interference with a public right by defendants. See Hamilton, 96 N.Y.2d at 237-39; City of Philadelphia v. Beretta U.S.A. Corp., 277 F.3d 415, 424 n.14 (3d Cir. 2002) (rejecting argument that trace data provides basis for claim of intentional nuisance by manufacturers).

1 Trace data does not provide evidence that any licensed participant in the distribution chain – manufacturer, importer, distributor, or retailer – engaged in wrongdoing. Hamilton, 96 N.Y.2d at 237 n.5; see also Commerce in Firearms in the United States (Feb. 2000) at 22-23 (Pltf. Exh. LT-3).

2 At most, trace data provides law enforcement leads for ATF or other law enforcement agencies or departments to investigate further. Id.

3 Plaintiff did not identify any corrupt FFL or group of corrupt FFLs.

4 Plaintiff did not present any evidence that any defendant in this case ever sold a gun to a corrupt FFL or core group of FFLs, let alone that any defendant knew or had reason to know that it was selling to a corrupt FFL or FFLs.

Regardless of the meaning or lack of meaning attributed to the number of traces associated with a specific retailer, intent cannot be inferred based on the identification of such specific retailers, as was done here by plaintiff's experts, because such specific information identifying retailers is not made available in a timely way to defendants as part of the ordinary FOIA disclosure of tracing information. The information permitting plaintiff's experts to compile such a list was provided for the first time in this case under a protective order that precludes the disclosure of that information to the defendant companies or the use of that information outside the context of this case.

XXVI. Public Nuisance — Causation

Plaintiff did not meet its burden of proof to show that any defendant proximately caused the interference with a public right and plaintiff's alleged injury. See National R.R. Passenger Corp. v. New York City Hous. Auth., 819 F. Supp. 1271, 1278 (S.D.N.Y. 1993) ("Common to the claims for intentional and negligent nuisance is the requirement that defendants' actions be the legal or proximate cause of plaintiff's injury.").

A. Remoteness

Defendants' alleged conduct was too remote from the alleged public nuisance and plaintiff's alleged injuries to be the proximate cause of the nuisance or the injuries.

1 A plaintiff who cannot show "'some direct relation between the injury asserted and the injurious conduct alleged'" fails to plead "a key element for establishing proximate causation, independent of and in addition to other traditional elements of proximate cause." Laborers Local 17 Health & Benefit Fund v. Philip Morris, Inc., 191 F.3d 229, 235 (2d Cir. 1999) (quoting Holmes v. Secs. Investor Prot. Corp., 503 U.S. 258, 268 (1992) and applying remoteness principle as a matter of federal and New York state law), cert. denied, 528 U.S. 1080 (2000).

2 The absence of direct injury – or remoteness – is a legal concept, grounded in the need to limit the scope of potential tort liability as a matter of policy, and is distinct from the fact-intensive aspect of foreseeability. Laborers Local 17, 191 F.3d at 236 ("foreseeability and direct injury (or remoteness) are distinct concepts, both of which must generally be established by a plaintiff"). See also Petition of Kinsman Transit Co. v. City of Buffalo, 388 F.2d 821, 824-25 (2d Cir. 1968) (barring claims of remotely injured plaintiffs in case where negligently moored ship broke loose, struck second ship, and knocked down bridge, resulting in flooding and ice jam that disrupted river transportation for two months and prevented plaintiffs from unloading grain from stranded boats); Holmes, 503 U.S. at 287 ("Life is too short to pursue every human act to its most remote consequences; 'for want of a nail, a kingdom was lost' is a commentary on fate, not the statement of a major cause of action against a blacksmith.") (Scalia, J., concurring).

3 "[T]he connection between defendants, the criminal wrongdoers and plaintiffs is remote, running through several links in a chain consisting of at least the manufacturer, the federally licensed distributor or wholesaler, and the first retailer. The chain most often includes numerous subsequent legal purchasers or even a thief." Hamilton, 96 N.Y.2d at 234.

4 The broad liability plaintiff seeks "should not be imposed without a more tangible showing that defendants were a direct link in the causal chain that resulted in [plaintiff's] injuries, and that defendants were realistically in a position to prevent the wrongs." Id. See also Forni v. Ferguson, 232 A.D.2d 176, 177 (1st Dep't 1996) (affirming dismissal of complaint by victims of Long Island railroad shooting against manufacturers of gun, magazine, and ammunition used in shooting: "Plaintiffs did not, nor could they, show[, inter alia,] . . . that the manufacturers' breach of their duty of care was the proximate cause of plaintiffs' injuries."); Jantzen v. Leslie Edelman of N.Y., 206 A.D.2d 406, 406-07 (2d Dep't 1994) (dismissing suit by victim of criminal shooting against retail seller of gun: "[A]s a matter of law, there could be no finding of proximate cause under the circumstances of this case. The sale of a shotgun merely furnished the condition for the unfortunate occurrence."); Quiroz v. Leslie Edelman of N.Y., 224 A.D.2d 509 (2d Dep't 1996) (same); McCarthy v. Sturm, Ruger & Co., Inc., 119 F.3d 148, 156-57 (2d Cir. 1997) (forecasting Hamilton in refusing to impose duty on ammunition manufacturer to control downstream distribution of its product to protect general public from misuse of product by criminals).

B. Causal Connection

Plaintiff did not meet its burden of proof as a matter of law to show a causal connection between any defendant's conduct and the alleged harm to plaintiff or its members.

1 There was no evidence that any defendant's conduct caused a prohibited person to obtain any specific handgun manufactured, imported or distributed by any one of these defendants.

2 There was no evidence that any defendant's conduct caused any of the alleged harms to the NAACP or its members.

3 There was no evidence that any defendants' conduct caused a disproportionate number of African-Americans, much less NAACP members, to be the victims of violence committed by third parties with handguns.

XXVII. Public Nuisance — Special Injury

Plaintiff did not meet its burden to show that either the NAACP or its members had suffered a special injury as a result of the public nuisance.

1 New York law requires that a private party, such as the NAACP here, seeking to prosecute a public nuisance claim show a special injury, which is defined as an injury that differs in kind, not just degree, from the injury to the general public. See 532 Madison Ave., 96 N.Y.2d at 293.

2 A greater degree of handgun violence within the African-American community does not demonstrate an injury different in kind to the NAACP or its members.

3 There was no evidence that only the NAACP or its members have experienced a fear of going out at night.

4 There was no evidence that only the NAACP has faced threats or spent money to increase security because of perceived increased security concerns.

XXVIII. Injunctive Relief

Plaintiff did not meet its burden of proof to establish its entitlement to injunctive relief.

1 "The basic requirements to obtain injunctive relief have always been a showing of irreparable injury and the inadequacy of legal remedies." Ticor Title Ins. Co. v. Cohen, 173 F.3d 63, 68 (2d Cir. 1999), citing Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982); see also New York State Nat'l Org. for Women v. Terry, 886 F.2d 1339, 1362 (2d Cir. 1989).

2 Where the requested injunction could also have negative effects on the defendants, "the court 'balances the conveniences of the parties and possible injuries to them according as they may be affected by the granting or withholding of the injunction.'" Weinberger, 456 U.S. at 312, quoting Yakus v. United States, 321 U.S. 414, 440 (1944); see also Sierra Club v. Hennessy, 695 F.2d 643, 649 (2d Cir. 1982); New York State Nat'l Org. for Women v. Terry, 704 F. Supp. 1247, 1262 (S.D.N.Y. 1989) (balancing equities in deciding whether to grant injunctive relief in public nuisance action), aff'd, Terry, 886 F.2d 1339.

3 Plaintiff's alleged injuries to itself in the form of security renovations and concerns of going out at night were not irreparable, and plaintiff would have an adequate remedy at law.

4 Although plaintiff did not present evidence of injury to individual NAACP members (either direct or statistical), such personal injuries would not have been irreparable. See Jayaraj, 66 F.3d at 39.

5 Imposing liability on defendants "would not only create an indeterminate class of plaintiffs but also an indeterminate class of defendants whose liability might have little relationship to the benefits of controlling illegal guns." Hamilton, 96 N.Y.2d at 235.

6 None of plaintiff's proof "demonstrated that a change in marketing techniques would likely have prevented [its alleged] injuries." Id.

7 The structural changes in defendants' marketing and distribution regimes proposed by plaintiff "would have the unavoidable effect of eliminating a significant number of lawful sales to 'responsible' buyers by 'responsible' Federal firearms licensees who would be cut out of the distribution chain under the suggested 'reforms.'" Hamilton, 96 N.Y.2d at 236.

XXIX. Commerce Clause

The mandatory injunction that plaintiff seeks for the purpose of regulating, in substantial part, defendants' legal marketing and distribution practices occurring entirely outside New York would violate the Commerce Clause of the United States Constitution.

1 The Constitution's Commerce Clause empowers only Congress to "regulate Commerce with foreign Nations, and among the several States." U.S. Const. art. 1 § 8, cl. 3.

2 The Commerce Clause limits the power of state and local governments to take actions affecting foreign and interstate commerce, commonly referred to as the "dormant Commerce Clause." See Healey v. Beer Institute, 491 U.S. 324, 326 n.1 (1989).

3 State power may be exerted as much by a jury's application of a state rule of law in a civil lawsuit as by a statute." BMW of N. Am. v. Gore, 517 U.S. 559, 573 (1996). Accord New York Times Co. v. Sullivan, 376 U.S. 254, 265 (1964) ("It matters not that that law has been applied in a civil action and that it is common law only …. The test is not the form in which state power has been applied but, whatever the form, whether such power has in fact been exercised."); San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 246-247 (1959) ("Our concern is with delimiting areas of conduct which must be free from state regulation if national policy is to be left unhampered. Such regulation can be as effectively exerted through an award of damages as through some from of preventive relief.") Shelly v. Kramer, 334 U.S. 1 (1948) (holding that judicial enforcement of racially restrict covenant would constitute state action and violate the Fourteenth Amendment).

4 Direct regulation of or discrimination against interstate commerce by a state is generally rejected without further analysis. See Brown-Forman Distillers v. New York State Liquor Auth., 476 U.S. 573, 579 (1986); accord Edgar v. MITE Corp., 457 U.S. 624, 640 (1982) ("The Commerce Clause … permits only incidental regulation of interstate commerce by the States; direct regulation is prohibited."); Shafer v. Farmers Grain Co., 268 U.S. 189, 199 (1925) (holding that a "state statute which by its necessary operation directly interferes with or burdens [interstate] commerce is a prohibited regulation and invalid, regardless of the purpose with which it was enacted.").

5 State regulation of commerce that takes place wholly outside of the state's borders, even if such commerce has effects within the state, is precluded by the Commerce Clause. See Healy, 491 U.S. at 336.

6 State regulation that directly controls commerce occurring wholly outside the boundaries of a state exceeds the state's authority and is invalid regardless of whether the state intended the extraterritorial reach. See id.

7 The critical question under the Commerce Clause is whether the practical effect of the state action is to control conduct beyond the state's boundaries. See id.

8 The court must consider not only the direct effect of the state action, but also how it may interfere with the legitimate regulatory schemes of other states. See id.

XXX. Separation of Powers

Plaintiff's requested injunctive remedy would also violate the principles of separation of powers embedded in the United States Constitution because it would require the implementation of a national firearms regulatory scheme by this Court.

1 Article I of the Constitution vests in Congress all legislative powers, including the power to regulate commerce with foreign nations and among the states. U.S. Const. art. 1 § 8, cl. 3.

2 Article III vests in the judicial branch the task of reviewing and interpreting the laws. See, e.g., Karen O’Connor & Larry J. Sabato, American Government: Roots and Reform at 41 (1994); see also The Federalist No. 47 (James Madison) ("The judges can exercise no … legislative function.").

XXXI. Comity

The NAACP's proposed injunctive relief, which would require nationwide regulation based upon New York common law, violates the principles of federalism and state sovereignty reflected in the United States Constitution.

1 Each state is sovereign within its territorial borders, subject only to the supreme authority of the federal government. See U.S. Const. art. VI.

2 The Constitution has a special concern for "the maintenance of a national economic union unfettered by state-imposed limitations on interstate commerce" and "the autonomy of the individual states within their respective spheres." Healy, 491 U.S. at 335-36; see also Bonaparte v. Tax Court, 104 U.S. 592 (1881) ("No State can legislate except with reference to its own jurisdiction. … Each State is independent of all the others in this particular.); Huntington v. Attrill, 146 U.S. 657, 669 (1892) ("Laws have no force of themselves beyond the jurisdiction of the State which enacts them, and can have extra-territorial effect only by the comity of other States"); New York Life Ins. Co. v. Head, 234 U.S. 149, 161 (1914) ("It would be impossible to permit the statutes of Missouri to operate beyond the jurisdiction of that State . . . without throwing down the constitutional barriers by which all the States are restricted within the orbits of their lawful authority and upon the preservation of which the Government under the Constitution depends. This is so obviously the necessary result of the Constitution that it has rarely been called in question and hence authorities directly dealing with it do not abound"); Bigelow v. Virginia, 421 U.S. 809, 824 (1975) ("A State does not acquire power or supervision over the internal affairs of another State merely because the welfare and health of its own citizens may be affected when they travel to that State").

3 "One State's power to impose burdens on the interstate market … is not only subordinate to the federal power over interstate commerce, but is also constrained by the need to respect the interests of other States." Gore, 517 U.S. at 571 (citations omitted).

4 "[I]t follows from these principles of state sovereignty and comity that a State may not impose economic sanctions on violators of its laws with the intent of changing the tortfeasors' lawful conduct in other States." Id. at 572-73; see also id. at 571 (While Congress has "ample authority to enact … a policy for the entire Nation, it is clear that no single State could do so, or even impose its own policy choice on neighboring States."); State Farm Mutual Automobile Ins. Co. v. Campbell, 123 S. Ct. 1513, 1521, 1522 (2003) (finding "[t]his case … was used as a platform to expose, and punish, the perceived deficiencies of State Farm's operations throughout the country," but holding that "[a] State cannot punish a defendant for conduct that may have been lawful where it occurred.").

Dated: June 9, 2003

Respectfully submitted by the following counsel on behalf of the defendants listed below,

/s/ Michael L. Rice

Michael L. Rice, Esq. (MR 8876)

Thomas E. Fennell, Esq.

JONES DAY

2727 North Harwood

Dallas, Texas 75201

Phone: (212) 326-3939

Fax: (212) 755-7306

Thomas E. Healy, Esq.

PINO & ASSOCIATES

50 Main Street

White Plains, New York 10606

Phone: (914) 946-0600

Fax: (914) 946-0650

Attorneys for Colt's

Manufacturing Company, Inc.

|Robert L. Joyce, Esq. |Lawrence S. Greenwald |

|WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER |Lawrence P. Fletcher-Hill |

|150 East 42nd Street |Catherine A. Bledsoe |

|New York, New York 10017 |GORDON, FEINBLATT, ROTHMAN |

|Phone: (212) 490-3000 |HOFFBERGER & HOLLANDER, LLC |

|Fax: (212) 490-3038 |233 East Redwood Street |

|Attorneys for Sigarms |Baltimore, Maryland 21202 |

| |Phone: (410) 576-4264 |

| |Fax: (410) 576-4246 |

| |Attorneys for Fabbrica D'Armi |

| |Pietro Beretta S.p.A. |

|Michael Zomcik, Esq. |Jeffrey S. Nelson, Esq. |

|Michael Branisa, Esq. |SHOOK, HARDY & BACON |

|TARICS & CARRINGTON |1200 Main Street |

|5005 Riverway, Suite 500 |Kansas City, MO 64105 |

|Houston, Texas 77056 |Phone: (816) 391-6493 |

|Phone: (713) 629-4777 |Fax: (816) 421-2708 |

|Fax: (713) 227-0701 |Attorneys for Smith & Wesson Corp. |

|Attorneys for Phoenix Arms | |

|James P. Dorr, Esq. |Michael C. Hewitt, Esq. |

|James Vogts, Esq. |BRUINSMA & HEWITT |

|Sarah L. Olson, Esq. |380 Clinton Street, Ste. C. |

|WILDMAN, HARROLD, ALLEN & DIXON |Costa Mesa, California 92626 |

|225 West Wacker Drive, Suite 2800 |Phone: (714) 755-0194 |

|Chicago, Illinois 60606 |Fax: (714) 755-0190 |

|Phone: (312) 201-2000 |Attorneys for Bryco Arms, Inc. |

|Fax: (312) 201-2555 |and B.L. Jennings, Inc. |

|Attorneys for Sturm Ruger & Co., Inc. | |

|Alan Mansfield, Esq. |Timothy A. Bumann, Esq. |

|Joel M. Cohen, Esq. |Jennifer C. Kane, Esq. |

|GREENBERG & TRAURIG |BUDD, LARNER, ROSENBAUM, GREENBERG & SADE, P.C. |

|Met Life Building |127 Peachtree Street, NE, Suite 636 |

|200 Park Avenue |Atlanta, Georgia 30303 |

|New York, New York 10166 |Phone: (404) 688-3000 |

|Phone: (212) 801-9200 |Fax: (404) 688-0888 |

|Fax: (212) 801-6400 |Attorneys for Taurus International Manufacturing; Inc., Braztech |

|Attorneys for Smith & Wesson Corp. |International, L.C.; Taurus Holdings, Inc.; Heritage Manufacturing, |

| |Inc.; Amadeo Rossi, S.A.; Forjas Taurus, S.A. |

|Robert E. Scott, Jr., Esq. |Timothy G. Atwood, Esq. |

|SEMMES, BOWEN & SEMMES |273 Canal Street |

|250 West Pratt Street |Shelton, Connecticut 06484 |

|Baltimore, Maryland 21201 |Phone: (203) 924-4464 |

|Phone: (410) 539-5040/(410) 576-4725 |Fax: (203) 924-1359 |

|Fax: (410) 539-5223 |Attorney for International Armament, Corp., Charco 2000, Inc., |

|Attorneys for Bryco Arms, Inc. |International Armament Corp. d/b/a Interarms, L.W., Seecamp Company, |

|and B.L. Jennings, Inc. |Inc. and Uberti (USA), Inc. |

|Bradley T. Beckman, Esq. |Thomas E. Healy, Esq. |

|BECKMAN AND ASSOCIATES |PINO & ASSOCIATES |

|Two Penn Center Plaza, Suite 910 |50 Main Street |

|Philadelphia, Pennsylvania 19102 |White Plains, New York 10606 |

|Phone: (215) 569-3096 |Phone: (914) 946-0600 |

|Fax: (215) 569-8769 |Fax: (914) 946-0650 |

|Attorneys for North American Arms |Attorneys for CZ-USA, Inc., Ceska Zbrojovka, A.S. and Excel |

| |Industries, Inc. |

|William M. Griffin, Esq. | |

|Jonann E. Coniglio, Esq. | |

|FRIDAY, ELDREDGE & CLARK | |

|2000 Regions Center | |

|400 West Capitol | |

|Little Rock, Arkansas 72201-3493 | |

|Phone: (501) 376-2011 | |

|Fax: (501) 376-2147 | |

|Attorneys for Arms Technology, Inc. and Browning Arms Co. | |

|David R. Gross |John F. Renzulli, Esq. |

|Geoffrey Gaulkin |Leonard S. Rosenbaum, Esq. |

|Christopher M. Chiafullo |Scott C. Allan, Esq. |

|David M. White |RENZULLI, PISCIOTTI & RENZULLI, LLP |

|SAIBER SCHLESINGER SATZ & |300 East 42nd Street, 17th Floor |

|GOLDSTEIN, LLC |New York, New York 10017 |

|One Gateway Center |Phone: (212) 599-5533 |

|13th Floor |Fax: (212) 599-6385 |

|Newark, New Jersey 07102 |Attorneys for Beemiller, Inc. d/b/a Hi-Point Firearms; Haskell |

|(973) 622-3333 |Manufacturing, Inc.; K.B.I., Inc.; Magnum Research, Inc.; Browning |

|Attorneys for AcuSport Corporation; Alamo Leather Goods, Inc.; |Arms Co.; Para-Ordnance, Inc.; Para-Ordnance Manufacturing, Inc.; |

|Bangers, LP; Bill Hicks & Co., Inc.; Brazas Sporting Arms, Inc.; |European American Armory Corp.; Glock, Inc.; Glock Ges.m.b.H.; Israel |

|Camfour, Inc.; Chattanooga Shooting Supplies, Inc.; Davidson's, |Military Industries, Ltd.; Arms Technology, Inc.; Century |

|Inc.; Dixie Shooters Supply, Inc.; Ellett Brothers, Inc.; Euclid |International Arms, Inc.; Eagle Imports; Import Sports, Inc.; Kel-Tec |

|Avenue Sales Co.; Hicks, Inc.; Interstate Arms Corporation, Inc.;|CNC Industries, Inc.; SGS Importers International, Inc.; Fratelli |

|Kiesler's Police Supply, Inc.; Lew Horton, Inc.; Lipsey's Inc.; |Tanfoglio, S.n.c.; Bersa S.A. |

|MKS Supply Co.; Ron Shirk's Shooters Supply, Inc.; RSR Wholesale,| |

|Inc.; Southern Ohio Gun, Inc.; Sports South, Inc.; Valor | |

|Corporation; Walter Craig, Inc.; Williams Shooters Supply, Inc.; | |

|Zanders Sporting Goods, Inc. | |

|Roger A. Lewis, Esq. |Thomas P. Battistoni, Esq. |

|GOLDBERG, KOHN, BELL, BLACK, ROSENBLOOM |BALBER, PICKARD, BATTISTONI, MALDONADO & VAN DER TUIN, P.C. |

|55 East Monroe Street |1370 Avenue of the Americas - 30th Floor |

|Suite 3700 |New York, New York 10019-4602 |

|Chicago, Illinois 60603 |Phone: (212) 246-2400 |

|Phone: (312) 201-3900 |Fax: (212) 765-4212 |

|Fax: (312) 332-2196 |Attorneys for Carl Walther GmbH |

|Attorneys for Carl Walther GmbH | |

|Richard J. Leamy |Scott L. Braum |

|WIEDNER & MCAULLIFFE, LTD. |SCOTT L. BRAUM & ASSOCIATES, LTD. |

|One North Franklin Street |3131 South Dixie Drive |

|Suite 1900 |Suite 400 |

|Chicago, Illinois 60606 |Dayton, Ohio 45439 |

|(312) 855-1105 |(937) 396-0089 |

| |Attorney for MKS Supply Co. |

|David G. Tobias | |

|SAVIANO & TOBIAS, P.C. | |

|9 East 40th Street | |

|15th Floor | |

|New York, New York 10016 | |

|(212) 532-7650 | |

|Attorneys for Faber Brothers, Inc. and Riley's, Inc. | |

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[1] Interviews with a number of the jurors following conclusion of the proceedings revealed that the vote stood at 9-3 in favor of each defendant for whom the jury could ultimately not reach a final verdict.

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