Superior Court of Massachusetts, Suffolk, Business Litigation Session
In re Civil Investigative Demand No. 2016-CPD-50, Issued by the Office of the Attorney General No. 135381
ORDER ON MOTION OF GLOCK, INC. TO SET ASIDE OR MODIFY
THE CIVIL INVESTIGATIVE DEMAND OR ISSUE A PROTECTIVE
P. Leibensperger, Justice
Inc., a manufacturer of pistols, commenced this action to set
aside a Civil Investigative Demand (" CID") issued
by the Attorney General to Glock on May 26, 2016. In the
alternative to a complete quashing of the CID, Glock requests
that a protective order issue limiting the information that
must be produced pursuant to the CID. As described below,
Glock's motion to set aside the CID is denied. Action on
the motion for a protective order is deferred, as the parties
are ordered to meet and confer regarding the scope of
discovery guided by the general principles governing CID
discovery, discussed herein.
was issued to Glock pursuant to G.L.c. 93A, § 6. The CID
recites that it is issued as " part of a pending
investigation by the Office of the Attorney General into
compliance with G.L.c. 93A, as well as related Massachusetts
laws, regulations and common law requirements that impact gun
safety and product warranties." The CID requires
production of documents from Glock pursuant to G.L.c. 93A,
§ 6(1). The requests for documents are detailed in
twelve separate paragraphs. The general nature of the
documents requested include customer complaints about safety,
the company's responses, product recalls, warranties,
testing, specifications, authorized dealers and legal actions
and settlements. There is no geographic limitation to the
scope of documents that must be produced. The relevant time
period for documents that must be produced is four years
prior to the date of the CID.
receipt of the CID, Glock, through counsel, began
communications with the Office of the Attorney General.
According to Glock's complaint (styled as a "
petition"), the Attorney General agreed to an extension
of the twenty-one-day period allowed by statute for a
recipient of a CID to move or object to the CID, to July 1,
2016. On July 1, 2016, having failed to reach an agreement
with the Attorney General regarding the validity and scope of
the CID, Glock filed its complaint along with an emergency
motion to set aside or modify the CID. The emergency motion
was denied, without prejudice to re-filing pursuant to Rule
9A of the Superior Court. On August 11, 2016, Glock served
its renewed motion to set aside or modify the CID on the
Attorney General. On September 15, 2016, the parties'
Rule 9A package was filed in this action. Oral argument was
heard on October 19, 2016.
motion, Glock asserts that it does not sell its pistols
directly to consumers in Massachusetts as that term is used
in 940 Code of Massachusetts Regulations (" CMR")
§ § 16.00 et seq. Glock says it made the
determination to forgo the consumer market in Massachusetts
after October 1998, when the Attorney General promulgated
regulations stating it to be an unfair and deceptive practice
for a " handgun-purveyor" to " transfer"
a handgun to a consumer that, among other things, is
non-compliant with the Attorney General's regulations
(940 CMR § 16.05(3)) requiring a " load
indicator" or a " magazine disconnect" as a
safety feature. Glock's handguns, to this date, do not
comply with the regulations requiring a " load
indicator" or a " magazine disconnect."
does, nevertheless, sell its pistols to Massachusetts law
enforcement agencies and military personnel. Such sales are
outside the definition of " handgun-purveyor" that
invokes the requirements of § 16.05. Glock also sells
its pistols to business entities in Massachusetts that are
primarily firearm wholesalers, so long as any sale, by its
terms, prohibits the purchaser from reselling to a handgun
retailer or consumer in Massachusetts. Such sales are allowed
under the definition of " transfer" in 940 CMR
Attorney General submits an affidavit of one of its
investigators who has reviewed and analyzed data for all gun
sales transactions in the Commonwealth. By law, a database is
maintained of all firearm sales by gun dealers as well as
private transfers. The analysis indicated that there were
approximately 10, 800 Glock handgun sales in Massachusetts
between January 1, 2014 and August 13, 2015. Approximately 8,
000 of those transactions were sales to individuals with an
occupation other than law enforcement, or to persons who had
no occupation listed. The investigator also described his
knowledge of safety issues reported regarding Glock handguns
including the risk of accidental discharge as a result of a
short trigger pull, lack of a load indicator and lack of an
General Laws c. 93A, § 6(1) authorizes the Attorney
General to obtain and examine documents " whenever he
believes a person has engaged in or is engaging in any
method, act or practice declared to be unlawful by this
chapter." Among the things declared to be unlawful by c.
93A are unfair and deceptive acts or practices in the conduct
of any trade or commerce. G.L.c. 93A, § 2(a). It is well
established that putting a product into the stream of
commerce to ultimately reach a user may be an unfair and
deceptive act under c. 93A if the product is defective,
unsafe or not as warranted. Vassallo v. Baxter Healthcare
Corporation, 428 Mass. 1, 23, 696 N.E.2d 909 (1998);
Aspinall v. Philip Morris Companies, Inc., 442 Mass.
381, 397, 813 N.E.2d 476 (2004). Specifically with respect to
firearms, the Supreme Judicial Court has held that the
Attorney General has authority under c. 93A " to prevent
the deceptive or unfair sale or transfer of defective
products which do not perform as warranted."
American Shooting Sports Council, Inc. v. Attorney
General, 429 Mass. 871, 875, 711 N.E.2d 899 (1999).
result, the Attorney General may issue a CID in connection
with an investigation of the safety of a product that is
purchased in Massachusetts. Section 6 of c. 93A grants the
Attorney General broad investigatory powers. " There is
no requirement that the Attorney General have probable cause
to believe that a violation of G.L.c. 93A has occurred. He
need only have a belief that a person has engaged or is
engaging in conduct declared to be unlawful by G.L.c.
93A." CUNA Mutual Insurance Society v. Attorney
General, 380 Mass. 539, 542 n.5, 404 N.E.2d 1219 (1980).
There is no requirement to disclose the name of the person
being investigated and the CID may be issued to a person who
is not the target of the investigation. Id. at
542-43. The statute, § 6(1) of c. 93A, " should be
construed liberally in favor of the government." In
the Matter of a Civil Investigative Demand Addressed to
Yankee Milk, Inc., 372 Mass. 353, 364, 362 N.E.2d 207
as the party moving to set aside the CID, bears a heavy
burden to show good cause why it should not be compelled to
respond. G.L.C. 93A, § 6(7); CUNA Mutual, 380
Mass. at 544. " [T]he recipient who challenges the CID
bears the burden of showing that the Attorney General acted
arbitrarily or capriciously in issuing the demand."
Attorney General v. Bodimetric Profiles, 404 Mass.
152, 157, 533 N.E.2d 1364 (1989).
Motion to Set Aside the CID
contends that the Attorney General has no authority to issue
the CID because Glock does not sell its pistols directly to
consumers in Massachusetts. Even Glock recognizes, however,
that its contention is overstated. Glock concedes that the
Attorney General has the authority to investigate whether
there have been improper sales by Glock, or others, of ...