Judge Blocks Lawyer's Distribution of Animation That Allegedly Shows "Uncommanded Discharge" of Sig Sauer Pistol
· Reason
From today's decision in Sig Sauer, Inc. v. Bagnell by Judge Victor Bolden (D. Conn.):
Jeffrey Bagnell, an attorney, commissioned High Impact, a graphics company, to create an animation purporting to show how a P320 pistol could misfire absent a trigger pull ("uncommanded discharge" or the "Animation"). He later posted that Animation to YouTube and published it on his firm's website. Part of Mr. Bagnell's business involves representing plaintiffs who claim that they have been injured by uncommanded discharges from P320s.
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Sig Sauer … alleg[es] that the Animation constitutes false advertising by inaccurately portraying the firearm's internal components and safety features…. Jeffrey S. Bagnell … is hereby ORDERED to refrain permanently from using this version of the Animation for advertising purposes, whether on the Bagnell Firm website or in any other form on any other platform, and whether on the Internet or in any other media….
The court concludes that the animation constitutes "commercial speech" for First Amendment purposes and for federal false advertising law (Lanham Act) purposes:
A statement constitutes commercial advertising or promotion under the Lanham Act if it is "(1) commercial speech, (2) made for the purpose of influencing consumers to buy defendant's goods or services, and (3) … disseminated sufficiently to the relevant purchasing public." First, it has been "well established that lawyer advertising is commercial speech." … Second, the animation was made for the purpose of influencing potential clients. The Defendants admitted that his website is a communication to potential clients about himself, his law practice, his rates, and how to contact him…. That website's home page repeatedly and prominently highlights the Defendants' work for plaintiffs in cases against SIG Sauer, as well as the press received and the television interviews done about that work. On this record, based on these facts and admissions, the Animation was posted for the purpose of influencing consumers to purchase the Defendants' legal services….
The Defendants argue that the Animation cannot be classified as commercial speech because its publication did not have a solely economic purpose. Instead, they were purportedly attempting to raise awareness about a public safety concern. But "[a]dvertisers should not be permitted to immunize false or misleading product information from government regulation simply by including references to public issues." Bolger v. Youngs Drug Prods. Corp. (1983) ….
"[H]ybrid" communication with commercial and noncommercial purposes "may nonetheless be 'commercial' where (1) it is an advertisement; (2) it refers to a specific product or service; and (3) the speaker has an economic motivation for the speech." Because this Animation was an advertisement, it clearly refers to Sig Sauer's P320 product, and the Defendants do not contest that they had, at least, a partial economic motivation to commission and publish the Animation—regardless of whether the Defendants had social and economic purposes for creating it—the Animation still constitutes commercial advertising under § 43(a). And, "[i]n light of the greater potential for deception or confusion in the context of certain advertising messages, content-based restrictions on commercial speech may be permissible." …
The court concluded that the "Animation is literally false as a factual matter"; here is just a short excerpt—see the full opinion for more, including photographs:
The P320 is a striker-fired pistol, meaning that a pull of the trigger initiates a sequence of internal components to move, culminating in the releasing of a compressed spring, which drives a pin forward to impact the cartridge, causing the gun to fire. The Animation, which is approximately five minutes long, claims to show how vibrations or sudden movements could cause the P320 to fire absent a trigger pull.
It opens with a written message that the P320 contains a "mechanism of failure," suggesting that the following sequence is that mechanism. The Animation then depicts a CT scan of a P320 before moving into fully animated renderings of the internal components of the firearm combined with text guidance. According to the Animation, "[n]ormal operation requires [a] trigger pull to discharge a firearm," but it is possible for the P320 to have a "defective discharge" with "no trigger pull."
But Sig Sauer has demonstrated that it would not be possible for the P320 to have the "mechanism of failure" specifically depicted in the Animation, and identified five literally false statements within the video about specific components of the pistol.
First, the Animation falsely depicts malformed versions of two P320 components: the sear and the striker foot. The Animation depicts the sear as lumpy and uneven and depicts both components has having "inset surfaces," which could lead to an unsafe "rollover condition." In reality, as Sig Sauer's expert witness, Robert Miller, demonstrated at trial, both components are flat with straight edges, making "rollover" impossible….
Second, the Animation falsely depicts the slide's ability to move up away from the frame, allowing the striker foot to walk up off the sear and fire without a trigger pull. As Mr. Miller explained, such movement is not physically possible and was accomplished in the Animation only by having two steel parts—the slide and frame rail—merge into each other in an obscured part of the Animation….
Third, the Animation falsely depicts the striker's safety geometry. There are two key differences between the striker's so-called safety notch depicted in the Animation and the actual P320 striker safety notch. The Animation falsely depicts the notch's vertical wall as straight rather than angled, and the Animation omits an undercut at the junction between the vertical wall and the horizontal plane of the safety notch….
Fourth, Mr. Miller's review of the Animation revealed a distortion of the striker safety lock that makes the lock appear less stable in the Animation than it is in reality….
Fifth, the Animation falsely represents the dimensions of the striker foot and striker housing by depicting "[e]xcessive space" between the two components….
In sum, the Animation contains five literally false statements that distort the firearm's components and safety features to support a claim that sudden impact or vibration leads to unintentional discharge. The "mechanism of failure" depicted by the animation thus would not be possible given the P320's actual composition…
And the court concluded that false commercial speech such as this can be restrained by a permanent injunction after trial:
As to any alleged First Amendment right issue, in particular, an alleged prior restraint on speech, this case is in a different procedural posture from the context of a preliminary injunction, before an evidentiary hearing and this Court's factual findings above with respect to the Animation's falsity. See, e.g., Br. of Amici Curiae ACLU, ACLU of Connecticut, and ACLU of New Hampshire in Opp'n to Pl.'s Renewed Mot. for Prelim. Inj. at 3, ECF No. 96 ("[A]lthough false or misleading commercial speech is unprotected by the First Amendment, SIG's preliminary injunction would restrain speech that has not been fully adjudicated to be false or misleading in any context.").
Indeed, "[c]ommercial speech that is false or misleading is afforded no First Amendment protection at all." Moreover, this permanent injunction merely prevents the Defendants from publishing this version of the Animation for advertising purposes. Such a narrow injunction does nothing to prevent the Defendants from continuing to practice law, represent plaintiffs against Sig Sauer, publicly express opinions about Sig Sauer or its products, or using even this version of the Animation in the context of other litigation. {To be clear, this Court takes no position whatsoever as to the admissibility of this version of the Animation in a court of law. That issue is one within the discretion of any court addressing this version of the Animation in the context of a specific case.}
Instead, the Defendants are (and will be) barred only from publishing this literally false animation about the P320, which, on this record, does not accurately explain how an uncommanded discharge could happen. {Significantly, nothing in this Ruling and Order can and should be construed as precluding the use of Animation depicting an uncommanded discharge of the P320, which can be adequately supported by the facts.} …
Anthony D. Mirenda and Caroline Holliday (Foley Hoag) and James R. Smart (Koch, Garg, Walker & Smart, LLP) represent Sig Sauer.
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