Smith & Wesson filed suit against New Jersey Attorney General Gurbir Grewal yesterday. The suit is brought in US District Court for the District of New Jersey. It was brought in response to a fishing subpoena issued by Grewal’s office “seeking evidence of consumer fraud related to advertising.”

Smith & Wesson accuses Grewal of trying to suppress free speech.

Following in the abusive footsteps of these repressive regimes, the New Jersey Attorney General has taken a series of actions to suppress Smith & Wesson’s speech, and with the intention of damaging Smith & Wesson both financially and reputationally. The most recent such action is the issuance of an administrative subpoena (the “Subpoena”) on October 13, 2020 that allegedly seeks evidence of consumer fraud relating to advertising – but in reality, it seeks to suppress and punish lawful speech regarding gun ownership in order to advance an anti-Second Amendment agenda that the Attorney General publicly committed to pursue.

The lawsuit goes on to accuse Grewal of conspiring with “anti-Second Amendment Activists” such as Brady, Everytown, and Giffords to use the power of the courts and prosecutors to “name and shame” firearms companies such as Smith & Wesson. It mentions the proxy proposals brought by the Interfaith Center on Corporate Responsibility that would have hamstrung Smith & Wesson.

The complaint then goes on to accuse Grewal of working directly with FACT (Firearms Accountability Counsel Task Force) which is a tool of the “anti-Second Amendment Activists” to circumvent the legislative process:

It is against this backdrop of coordinating with anti-Second Amendment Activists to search for new theories to litigate the firearms industry out of existence, that the Attorney General issued his Subpoena against Smith & Wesson here. To this end, in addition to publicly partnering with anti-Second Amendment Activists, the Attorney General has also hired FACT
counsel, Paul, Weiss, Rifkind, Wharton & Garrison, LLP as his own counsel specifically to pursue firearms manufacturers, further solidifying the anti-gun agenda as his own.

The Attorney General’s actions surrounding the issuance of the Subpoena and initiating the related investigation are forcing Smith & Wesson to expend substantial financial resources, and are threatening to cause irreparable damage with key stakeholders and necessary business partners, and create reputational harm.

The Attorney General’s campaign to silence, intimidate, and deter Smith & Wesson and other Second Amendment advocates, gun manufacturers, and gun owners from exercising their constitutional rights, his consignment of the State’s prosecutorial authority to nongovernmental partisans, and the targeting of protected, disfavored speech, violate numerous provisions of the U.S. Constitution, including the First, Second, Fourth, Fifth, and Fourteenth Amendments.

By circumventing the legislature and the courts and, where possible, invading the board room, the anti-Second Amendment Activists disguise their true motives and avoid exposing their agenda to the robust political debate surrounding firearms in the United States. Their allies then use the issues that they create, to falsely foster with shareholders, business partners and other stakeholders a perception of unmitigated risk. Through these coordinated activities, in which the Attorney General and State of New Jersey now are complicit, the activists have denied and continue to deny Smith & Wesson any meaningful access to the only fora that can stop these illegal actions and protect Smith & Wesson’s rights.

Smith & Wesson lists 11 counts of violations. Among these are violations of the First and Fourteenth Amendment through unlawful viewpoint discrimination, restriction of political speech, and restriction of protected commercial speech. It also alleges violations of the Second and Fourteenth Amendment rights of both the company and its consumers. Finally, it says the company is protected the Protection of Lawful Commerce in Arms Act as well as the Dormant Commerce Clause meaning this is a matter for Federal courts and that state officials like Grewal are encroaching in Federal matters.

The lawsuit seeks both injunctive and declaratory relief as well as attorney fees along with anything else the court might deem “just and proper”.

The attorneys representing Smith & Wesson are all partners in the international law firm of DLA Piper. In one of those delicious bits of irony, this is the same firm where Douglas Emhoff, spouse of presumed VP-elect Kamala Harris, is a partner. Indeed, when you open up the list of the firm’s attorneys by “relevance”, he is the first one listed.