Karen Lowy v. Daniel Defense, LLC

• Court: Court of Appeals for the Fourth Circuit
• Decided: February 11, 2026
• Docket: 24-1822
• Status: Published

Opinion

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PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 24-1822

KAREN LOWY, individually and as parent and next friend of N.T.; ANTONIO HARRIS,

Plaintiff – Appellants,

v.

DANIEL DEFENSE, LLC; FAB DEFENSE, INC.; FAB MANUFACTURING & IMPORT OF INDUSTRIAL EQUIPMENT LTD.; BRAVO COMPANY USA, INC.; LOYAL 9 MANUFACTURING, LLC; FOSTECH, INC.; HEARING PROTECTION, LLC; CENTURION ARMS, LLC; MAGPUL INDUSTRIES CORP.; FEDERAL CARTRIDGE COMPANY; VISTA OUTDOOR, INC.; FIOCCHI OF AMERICA, INC.; FIOCCHI MUNIZIONI S.P.A.; SUREFIRE, LLC; TORKMAG, INC.,

Defendants – Appellees,

and

STARLINE, INC.; JOHN DOES 1-20,

Defendants.

------------------------------

EVERYTOWN FOR GUN SAFETY SUPPORT FUND; BRADY CENTER TO PREVENT GUN VIOLENCE; GIFFORDS LAW CENTER TO PREVENT GUN VIOLENCE; GLOBAL ACTION ON GUN VIOLENCE,

Amici Supporting Appellants,

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NATIONAL SHOOTING SPORTS FOUNDATION; NATIONAL RIFLE ASSOCIATION OF AMERICA; SAFARI CLUB INTERNATIONAL; SPORTSMEN’S ALLIANCE FOUNDATION,

Amici Supporting Appellees.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, Senior District Judge. (1:23-cv-01338-CMH-IDD; 1:23- cv-01501-CMH-IDD)

Argued: October 21, 2025 Decided: February 11, 2026

Before KING, WYNN, and QUATTLEBAUM, Circuit Judges.

Reversed in part, vacated in part, and remanded by published opinion. Judge King wrote the opinion, in which Judge Wynn joined. Judge Quattlebaum wrote a dissenting opinion.

ARGUED: Elizabeth Catherine Lockwood, ALI & LOCKWOOD LLP, Washington, D.C., for Appellants. Brian Wesley Barnes, COOPER & KIRK, PLLC, Washington, D.C., for Appellees. ON BRIEF: Kathryn M. Ali, Meghan Palmer, ALI & LOCKWOOD LLP, Washington, D.C.; H. Christopher Boehning, Jacobus J. Schutte, Jenifer N. Hartley, PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP, New York, New York, for Appellants. David H. Thompson, Brian W. Barnes, COOPER & KIRK, PLLC, Washington, D.C., for Appellees Magpul Industries Corp. and SureFire, LLC. V.R. Bohman, Las Vegas, Nevada, Cameron J. Schlagel, SNELL & WILMER, LLP, Costa Mesa, California, for Appellee Daniel Defense, LLC. Jeremy Adelson, Milwaukee, Wisconsin, Alan W. Nicgorski, HANSEN REYNOLDS LLC, Chicago, Illinois; Charles E. James, Jr., Meredith M. Haynes, Richmond, Virginia, Camden R. Webb, WILLIAMS MULLEN, Raleigh, North Carolina, for Appellee Bravo Company USA, Inc. Abram J. Pafford, Jonathan Y. Ellis, MCGUIREWOODS LLP, Washington, D.C.; Harley J. Goldstein, Neha Khandhadia, GOLDSTEIN & MCCLINTOCK, Chicago, Illinois, for Appellees FAB Manufacturing & Import of Industrial Equipment Ltd. And FAB Defense, Inc. Alan D. Bart, REED SMITH LLP, Richmond, Virginia; James B. Vogts, Andrew A. Lothson, SWANSON, MARTIN & BELL, LLP, Chicago, Illinois, for Appellees Vista Outdoor, Inc. and Federal Cartridge Company. Scott L. Braum, Timothy R. Rudd, BRAUM | RUDD, Dayton, Ohio, for Appellees Loyal 9 Manufacturing, LLC; FosTech, Inc.; and Centurion Arms, LLC. David C. Bowen, Forrest M. Via, WILLCOX &

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SAVAGE, P.C., Norfolk, Virginia, for Appellees Daniel Defense, LLC; Appellees Loyal 9 Manufacturing, LLC; FosTech, Inc.; and Centurion Arms, LLC. Nicholas P. Vari, Andrew N. Cook, K&L GATES, LLP, Pittsburgh, Pennsylvania, for Appellees Fiocchi of America, Inc. and Fiocchi Munizioni S.p.A. Christopher Renzulli, David A. Jones, RENZULLI LAW FIRM, LLP, White Plains, New York, for Appellees Hearing Protection, LLC and Torkmag, Inc. Keith J. Harrison, Washington, D.C., Neil Nandi, Chicago, Illinois, Anne Li, Ellen M. Halstead, CROWELL & MORING LLP, New York, New York, for Amici Everytown for Gun Safety Support Fund, Brady Center to Prevent Gun Violence, Giffords Law Center to Prevent Gun Violence, and Global Action on Gun Violence. Lawrence G. Keane, Shelby Baird Smith, NATIONAL SHOOTING SPORTS FOUNDATION, INC., Washington, D.C.; Andrew E. Lelling, Boston, Massachusetts, Noel J. Francisco, Anthony J. Dick, Harry S. Graver, Washington, D.C., Zachary Austin, JONES DAY, Columbus, Ohio, for Amicus National Shooting Sports Foundation. Erin M. Erhardt, Joseph G.S. Greenlee, NATIONAL RIFLE ASSOCIATION OF AMERICA – INSTITUTE FOR LEGISLATIVE ACTION, Fairfax, Virginia, for Amicus National Rifle Association of America. Regina Lennox, SAFARI CLUB INTERNATIONAL, Washington, D.C., for Amicus Safari Club International. Michael T. Jean, SPORTSMEN’S ALLIANCE FOUNDATION, Columbus, Ohio, for Amicus Sportsmen’s Alliance Foundation.

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KING, Circuit Judge:

In what has become a far too common and tragic story in our Country, plaintiffs

Karen Lowy and Antonio Harris were, among others, brutally maimed and injured in a

2022 shooting that occurred at the Edmund Burke School in Washington, D.C. Ms. Lowy

was doing nothing more than picking up her daughter from school. Mr. Harris had just

started his afternoon shift as a security guard at the school. From a strategically-positioned

“sniper’s lair” just across the street and overlooking the Burke School, the Shooter — a 23-

year-old man from Fairfax, Virginia — fired approximately 239 times with an AR-15.

In 2023, Lowy — individually and as next friend of her minor child, N.T. — and

Harris (collectively, the “plaintiffs”) filed lawsuits in the Eastern District of Virginia. By

their respective 24-count complaints, they seek to hold several U.S. and foreign-based

manufacturers of assault rifles, assault rifle accessories, and ammunition accountable for

violations of Virginia’s False Advertising Statute and Consumer Protection Act. 1 The

plaintiffs also allege that certain defendants committed negligence and negligence per se

by violating the National Firearms Act and the Virginia Uniform Machine Gun Act.

1 The relevant named defendants in this appeal are Daniel Defense, LLC (“Daniel Defense”); FOSTECH, Inc. (“FosTecH”); Hearing Protection, LLC (“Griffin Armament”); Loyal 9 Manufacturing, LLC (“SOLGW”); Centurion Arms, LLC (“Centurion Arms”); Bravo Company, USA, Inc. (“BCM”); FAB Defense, Inc. (“FAB Defense”), a subsidiary of FAB Manufacturing and Import of Industrial Equipment, Ltd. (“FAB Manufacturing”); Magpul Industries Corp. (“Magpul”); SureFire, LLC (“SureFire”); Torkmag, Inc. (“Torkmag”); Federal Cartridge Company (“Federal Premium Ammunition”), a subsidiary of Vista Outdoor, Inc.; and Fiocchi of America, Inc. (“Fiocchi”), a subsidiary of Fiocchi Munizioni, S.p.A. Collectively, these entities are referred to herein as “defendants.”

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By its Memorandum Opinion of July 2024, the district court summarily dismissed

the plaintiffs’ claims against all defendants, pursuant to Rule 12(b)(1) of the Federal Rules

of Civil Procedure. See Lowy v. Daniel Defense, LLC, No. 1:23-cv-01338 (E.D. Va. July

24, 2024), ECF No. 242 (the “Dismissal Ruling”). 2 Therein, the court ruled that the

plaintiffs could not show a “fairly traceable” connection between their alleged injuries and

the alleged misconduct of the defendants, such that they did not possess Article III standing

to sue. Notwithstanding the court’s threshold determination that it lacked subject-matter

jurisdiction over the plaintiffs’ lawsuits, the Dismissal Ruling also concluded — on the

merits pursuant to Rule 12(b)(6) — that the plaintiffs’ claims are barred by the Protection

of Lawful Commerce in Arms Act of 2005, 15 U.S.C. § 7901 et seq. (the “PLCAA”).

From the Dismissal Ruling, the plaintiffs have appealed. As explained herein, we

are constrained to reject the district court’s erroneous Article III standing ruling. Put

simply, the plaintiffs have alleged sufficient facts to demonstrate that their injuries are

“fairly traceable” to the defendants’ purported misconduct, such that they possess the

essential Article III standing to sue. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61

(1992). Otherwise, in this situation, we are obliged to refrain from considering the

remaining aspects of the court’s Dismissal Ruling — i.e., the court’s impermissible and

advisory rulings that the plaintiffs’ claims are barred by the PLCAA. Rather, we will

2 Federal Rule of Civil Procedure 12(b)(1) provides, in pertinent part, that “[e]very defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion: (1) lack of subject matter jurisdiction . . . .” See Fed. R. Civ. P. 12(b)(1).

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vacate, set aside, and hold for naught those aspects of the Dismissal Ruling that relate to

the PLCAA, and remand for such other and further proceedings as may be appropriate.

I.

A.

Friday, April 22, 2022, was supposed to be a normal Spring day for Karen Lowy,

her daughter, and also for Antonio Harris. 3 That fateful day was anything but normal —

Lowy and Harris were savagely and brutally shot outside the Burke School on Connecticut

Avenue in the Northwest area of our Nation’s Capital. The Shooter had barricaded himself

in a so-called “sniper’s lair” apartment just across the street and overlooking the Burke

School, armed with an AR-15, various other weapons, and additional equipment.

More specifically, the Shooter’s curated arsenal included weapons that had been

manufactured by defendants Daniel Defense, FosTecH, Griffin Armament, SOLGW, and

Centurion Arms, along with an AR-15-style rifle and “M-Lok” system produced by

3 We accept and recite herein the well-pleaded allegations of the complaints, in the light most favorable to the plaintiffs, as we are obliged to do at this stage in the proceedings. See, e.g., Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999) (recognizing that, for purposes of Rule 12(b)(1), courts must “view[] the alleged facts [in the complaint] in the light most favorable to the plaintiff, similar to an evaluation pursuant to Rule 12(b)(6)”).

Furthermore, the allegations set forth in the plaintiffs’ respective complaints are virtually identical, excepting background information related to each plaintiff personally and the injuries they sustained during and following the shooting. The facts recited herein are primarily drawn from the complaint in the Lowy case. See Lowy v. Daniel Defense, Inc., No. 1:23-cv-01338 (E.D. Va. Oct. 1, 2023), ECF No. 1 (the “Lowy Complaint”).

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defendant BCM. 4 The Shooter’s arsenal also included: (1) a “buttstock” made by

defendant FAB Defense; (2) a high-capacity “drum magazine” and grip from defendant

Magpul; (3) magazines from defendants Daniel Defense, SureFire, and Torkmag; and

(4) ammunition from defendants Federal Premium Ammunition and Fiocchi. 5

See Lowy Complaint ¶ 103.

4 A “M-Lok” system is a firearm rail interface system that allows for direct accessory attachment onto the “negative space” mounting points of a firearm, enabling the user (i.e., a shooter) to have a slimmer, lighter, and smoother experience. 5 A “buttstock” is the stock of a firearm in the rear of the breech mechanism, which provides structural support and a surface for the shooter to brace the firearm against a shoulder for stability and recoil management. A “drum magazine” is a high-capacity firearm magazine that holds ammunition in a cylindrical, drum-like shape, allowing it to store significantly more rounds than a standard box magazine.

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In the days and months leading to the April 2022 shooting, the Shooter had travelled

around Northern Virginia building up his stockpile of deadly weapons. Additionally, the

Shooter had numerous weapons components and accessories shipped to his Virginia

apartment. Once fully assembled, the Shooter transported the assembled arsenal to the

apartment overlooking the Burke School from which his assaults occurred. After the

shooting spree was completed, the Shooter died by suicide. Following a search by law

enforcement, the Shooter’s body was found in the lair apartment overlooking the school.

Despite the Shooter firing approximately 239 times that afternoon, Ms. Lowy —

who was waiting in her car to pick up her 13-year-old daughter, N.T., from school — and

Mr. Harris, a 26-year veteran of the Metropolitan Police Department, miraculously

survived the shooting incident. An unresponsive and severely injured Lowy was found by

a Secret Service agent, in the street beside her vehicle. Lowy was immediately rushed to

the trauma center at Washington Hospital Center, where she was resuscitated twice.

Emergency room physicians were forced to cut Lowy’s chest open in their trauma bay,

performing an emergency thoracotomy as a result of cardiac arrest from the gunshots. The

surgeons thereafter found multiple metal fragments (i.e., bullet pieces from defendants

Fiocchi and Federal Premium Ammunition products) in Lowy’s body. Upon seeing news

coverage of the shooting, which included an image of a SWAT team member standing next

to Ms. Lowy’s car, her husband — named Mr. Jaffe — spent hours trying to find his wife.

Jaffe discovered Lowy in the Intensive Care Unit at Washington Hospital Center.

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In the aftermath of the Burke School shooting, Lowy attended countless medical

appointments and physical and occupational therapy sessions. As a consequence of the

shooting, Lowy has been diagnosed with an anoxic brain injury, post-traumatic stress

disorder, and major depression. And she continues to require medical care. Meanwhile,

Lowy’s daughter, N.T., suffers from severe emotional distress caused by the shooting.

For his part, Harris arrived at the Burke School at approximately 3 o’clock in the

afternoon on April 22 for his shift as a security guard. Within minutes of Harris’s arrival

at his workplace, the Shooter opened fire from his “sniper’s lair” apartment. Upon hearing

shots, Harris promptly yelled for the students to go back inside the school building. In the

process, he was shot in the abdomen. Harris sustained immense blood loss, his jaw was

shattered when he fell to the ground, and he lost his right kidney and a large portion of his

liver. Once the chaos subsided, Harris was also rushed to a local hospital where he

underwent various emergency procedures. He spent a week in a medically induced coma,

followed by two months in the hospital receiving intensive treatment. To this day, Harris

deals with adverse side effects from the shooting and requires substantial medical care.

B.

1.

On October 1, 2023, Ms. Lowy and her daughter, N.T., filed this lawsuit in the

Eastern District of Virginia. See Lowy v. Daniel Defense, Inc., No. 1:23-cv-01338 (E.D.

Va. Oct. 1, 2023) (the “Lowy case”). Soon thereafter, on November 5, 2023, Mr. Harris

filed a nearly-identical lawsuit in the same Virginia federal court. See Harris v. Daniel

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Defense, Inc., No. 1:23-cv-01501 (E.D. Va. Nov. 5, 2023) (the “Harris case”). By order of

December 19, 2023, the district court consolidated the Lowy case with the Harris case.

In their respective 24-count federal court complaints, the plaintiffs each alleged that

the defendants had contravened the Commonwealth of Virginia’s False Advertising Statute

and Consumer Protection Act. And they alleged that certain defendants had committed

negligence (that is, defendants Daniel Defense, Magpul, FAB Manufacturing, Fiocchi

Munizioni, Surefire, and Torkmag) and negligence per se (i.e., defendants Daniel Defense,

BCM, FosTecH, Griffin Armament, Centurion Arms, and SOLGW), by violating the

federal National Firearms Act and Virginia’s Uniform Machine Gun Act.

More specifically, the plaintiffs alleged that “[t]he mass shooting at Edmund Burke

School . . . was the foreseeable and entirely preventable result of a chain of events initiated

by” the defendants. See Lowy Complaint ¶ 6. According to the plaintiffs:

• “For years, these manufacturers have deceptively and unfairly marketed their assault rifles, rifle accessories, and ammunition in ways designed to appeal to the impulsive, risk-taking tendencies of civilian adolescent and post-adolescent males — the same category of consumers [d]efendants have watched, time after time, commit the type of mass shooting that unfolded again at the Edmund Burke School.” Id. ¶ 7.

• “The [d]efendants employ sales and marketing practices that create and feed a consumer base of young, civilian men who keep the money rolling in by purchasing not only the rifles, but all the deadly accessories that go with them — ammunition, optics, high-capacity magazines, silencers, and laser-aiming devices, among others. When these consumers foreseeably use Defendants’ assault rifles, rifle accessories, and ammunition in mass shootings, the families and communities affected suffer while [d]efendants celebrate boosts to their bottom lines. Defendants know that demand for their weapons, weapon accessories, and ammunition increase in the aftermath of mass shootings. Rather than

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behave responsibly, [d]efendants stoke fear of gun regulations and encourage stockpiling after shootings to increase that demand.” Id. ¶ 8.

• “The marketing and sales practices of [d]efendants and other entities within the gun industry — including their practices in the State of Virginia — are the beginning and pivotal links in a foreseeable and predictable chain of events resulting in many mass shootings in America each year. With full knowledge and appreciation of their role in facilitating these mass shootings, [d]efendants continue to intentionally and recklessly advertise, market, promote, and sell a warrior mentality that a certain subset of youths, like this Shooter who live-streamed his crime, fantasize will make them legendary. Defendants have not taken even the simplest steps to prevent or discourage young, impulsive would- be mass shooters from acquiring their weapons, weapon accessories, and ammunition and using them to inflict harm, such as implementing age gates on their social media accounts to align with any state and local regulations governing the age at which a person could purchase or use the relevant products, warning consumers about the dangers of assault rifles, or even avoiding advertising illegal modifications to and uses of weapons. Defendants’ practices are negligent and unlawful.” Id. ¶ 9.

• “After years of conditioning by perverse and pervasive marketing by [d]efendants and the gun industry at large, would-be mass murderers — like the Shooter — naturally look to obtain the products associated with the idolized self-sufficient warrior mentality featured by these promotions.” Id. ¶ 10 (citation modified).

• “The Shooter purchased a FosTecH Tech-15 rear, manufactured by Defendant FOSTECH, Inc. from a firearms dealer in Fairfax, Virginia on October 2, 2021. He went to a different dealer, in Alexandria, Virginia, on January 16, 2022, to get Defendant Hearing Protection, LLC’s MK1 Griffin Armament lower.” Id. ¶ 14.

• “While visiting shooting ranges to practice using his guns before the Shooting, the Shooter made additional weapons purchases: he bought a lower receiver made by Defendant Loyal 9 Manufacturing, LLC on November 6, 2021[,] from Silver Eagle Group in Loudon County, Virginia. And he bought Defendant Centurion Arms, LLC’s F-15 receiver on December 16, 2021[,] from Elite Shooting Sports in Prince William County, Virginia.” Id. ¶ 15 (citation modified).

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• “The Shooter also bought [d]efendant[s] Daniel Defense, LLC’s DDM4 V7 rifle, the exact same AR-15 rifle that was used by another violent young man just over a month later to conduct a mass shooting at Robb Elementary in Uvalde, Texas — and Daniel Defense’s DD magazine, a high-capacity, 32-round magazine that is designed for fast and secure reloads.” Id. ¶ 16 (citation modified).

• Each [d]efendant enabled the Shooter to carry out the Shooting. They knowingly sought to place their weapons, accessories, and ammunition in the hands of disturbed young men by targeting and exploiting the risk- seeking . . . desires of these consumers. The Shooter and other would-be mass shooters are highly susceptible to disturbing promotional messages, which foreseeably feed the desires of these young men to act out their militaristic fantasies on a civilian population.” Id. ¶ 43.

Furthermore, the complaints alleged that the defendants engaged in intentional,

unfair, and deceptive conduct in marketing their products to civilians — including

marketing to “teens and young adults” — “[d]espite knowing that mass shootings have

been repeatedly perpetrated by young men armed with assault rifles[.]” See Lowy

Complaint ¶ 53 (further alleging that “[d]efendants specifically and intentionally market

their weapons, weapon accessories, and ammunition in ways that appeal to adolescent and

post-adolescent males, including through social media and invocations of other brands

geared toward children and young adults. They have taken no steps to guard against the

sale of their weapons, weapon accessories, and ammunition to those who would

foreseeably commit such violent acts and, in some cases, have even gone so far as to

ridicule the idea that their advertising should not promote and encourage violence.”).

According to the complaints, “[t]hese advertisements are especially salient for — and are

targeted to attract — troubled young men attracted to violent combat, increasing the risk

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that these young men will use [d]efendants’ deadly weapons, weapon accessories, and

ammunition to perpetrate mass violence.” Id. ¶ 55 (citation modified).

The complaints also identified various specific advertisements by the defendants

aimed at attracting civilian consumers to engage in violent combat. See Lowy Complaint

¶ 57-93 (factual allegations identifying defendants’ advertisements). Additionally, the

complaints averred that some of the defendants’ advertisements “promote activity that is

or may be illegal.” Id. ¶ 94 (“Despite some content moderation on social media sites,

[d]efendants Daniel Defense, BCM, SOLGW, and others have been undeterred from

advertising their products in connection with activity that is or may be illegal in some or

all jurisdictions — without any regard to where the consumer is viewing the ad from. This

content, too, appeals to the thrill-seeking impulses of young men like the Shooter. In fact,

the Shooter used [d]efendants’ weapons just as they encouraged him to in their marketing

— targeting Ms. Lowy’s car with a scope, and riddling it with as many bullet holes as he

could.”). That is, “[d]efendants knew or should have known of the risks of their deceptive

marketing and related conduct, as the growing numbers of mass shootings involving assault

rifles each year repeatedly and consistently show.” Id. ¶ 104; id. ¶ 106 (“Defendants’

deceptive marketing targets and exploits this demographic by promoting advertising that

is specifically appealing to — and encouraging of — this group’s propensities for violent

behavior. The Shooter who terrorized the Edmund Burke School was 23 years old.”).

On that score, although not exhaustive of the defendants’ alleged advertisements

and marketing, the following are representative samples drawn from the Lowy Complaint:

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See Lowy Complaint ¶¶ 60, 62, 63, 81, 95, 96.

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The complaints also provided the district court with detailed factual allegations

related to the Shooter. That included, inter alia, specific allegations regarding the Shooter’s

background and motivations for carrying out the April 2022 shooting at the Burke School:

• “Upon information and belief, the United States Coast Guard discharged the Shooter because it learned of attributes that made him unfit for military service.” See Lowy Complaint ¶ 107.

• “In the months leading up to the Shooting, the Shooter purchased more than 15 firearms or firearm accessories and amassed thousands of rounds of ammunition. At just his D.C. apartment crime scene, the Shooter had approximately 1,000 rounds of ammunition.” Id. ¶ 108.

• “The Shooter used [his] Wikipedia account identifying him as ‘an AR-15 aficionado’ to update the page for the Edmund Burke School as police searched for him. He wrote: ‘A gunman shot at the school on April 22, 2022. The suspect is still at large.’ As police continued to search for [the Shooter] hours after he had posted about the Shooting online under his own name, the Shooter posted again: ‘Your taxes pay for these incompetent fools.’” Id. ¶ 118 (citation modified).

• “Just as [d]efendant Starline Brass told him through its advertising, the Shooter’s stockpile of weapons, weapon accessories, and ammunition had made him feel powerful — powerful enough to livestream his crime and taunt police under his own name.” Id. ¶ 119 (citation modified).

• “Though he owned numerous other weapons, weapon accessories, and boxes of ammunition, [d]efendants’ products were his weapons, weapon accessories, and ammunition of choice. Upon information and belief, the Shooter made these choices because he perceived these weapons, accessories, and ammunition to be a superior fit for carrying out his mission of causing the most destruction possible.” Id. ¶ 120.

• “Upon information and belief, the Shooter assembled [d]efendants’ products to create customized weapons of war for use in the Shooting. The Shooter’s online presence suggests that he did so after searching online for how-to instructions and instructional videos.” Id. ¶ 121.

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• “The Shooter also purchased various weapons, weapon accessories, and ammunition online from a number of retailers, exposing [him] to [d]efendants’ products and advertisements[.]” Id. ¶ 122.

• “Upon information and belief, the Shooter was exposed to and influenced by [d]efendants’ deceptive and unfair marketing acts and practices while researching and planning the Shooting.” Id. ¶ 123.

• “Defendants’ deceptive and unfair marketing acts and practices increased the level of violence of the Edmund Burke Shooting by putting in the Shooter’s hands deadly weapons, accessories, and ammunition that he thought were together designed for mass death.” Id. ¶ 124.

2.

In late 2023, the U.S.-based defendants each moved to dismiss the Lowy case on

various grounds, primarily maintaining that Ms. Lowy and her daughter, N.T., did not

possess constitutionally mandated Article III standing to sue in federal court. Ms. Lowy

and N.T. thereupon moved for leave to file an omnibus opposition to the defendants’

motions in the Lowy case, which the district court denied in favor of defendant-by-

defendant dismissal briefing. On January 11, 2024, however, the court granted the parties’

joint motion — excepting defendants FAB Manufacturing and Fiocchi Munizioni —

requesting that the dismissal briefing in the Lowy also apply to the Harris case. 6

6 We observe that defendant FAB Manufacturing was deemed by the Clerk of Court to be in default in the Lowy case on February 21, 2024, and in the Harris case on March 25, 2024. By order of April 12, 2024, a magistrate judge granted FAB Manufacturing’s request to set aside the default in the Lowy case. And by separate order of May 13, 2024, the magistrate judge granted FAB Manufacturing’s request to set aside the default in the Harris case. On appeal, the plaintiffs do not challenge those default relief rulings.

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After initially scheduling a hearing on the defendants’ motions to dismiss for

January 19, 2024, the district court cancelled that proceeding two days beforehand. Six

months later, on July 24, 2024, the court dismissed the plaintiffs’ respective claims in the

complaints against all defendants on the papers. By its 11-page Dismissal Ruling, the court

initially concluded that, for purposes of Article III standing to sue in federal court, the

plaintiffs could only satisfy the “causation requirement” of Article III “if the defendant’s

conduct had a determinative or coercive effect upon the action[s] of” the Shooter. See

Dismissal Ruling 4. In that respect, the court related as follows:

[A] third party bridges the alleged causal chain between defendants’ conduct and plaintiffs’ injuries. At the beginning of the alleged causal chain, defendants marketed their weapons and weapons accessories to potential consumers in Virginia. At the end, Shooter injured plaintiffs by firing at an elementary [sic] school. This chain relies on Shooter, a third party not before the Court, to link defendants to plaintiffs’ injuries. Accordingly, to establish standing against defendants, plaintiffs must allege that defendants’ conduct had a determinative or coercive effect upon Shooter’s actions.

Id. 7

In this light, the district court reasoned that “[m]uch of plaintiffs’ complaint[s]

concern[] defendants’ marketing to Virginia residents generally and ‘young men like the

Shooter’ . . . but few paragraphs allege the effect of defendants’ marketing on Shooter

specifically.” See Dismissal Ruling 4. According to the Dismissal Ruling, however, the

complaints “fail[ed]” to satisfy Article III’s causation requirement for two reasons:

7 The Dismissal Ruling repeatedly refers to the Burke School as an “elementary school.” See, e.g., Dismissal Ruling 4, 6. We observe, however, that the Burke School is actually an independent college preparatory school for grades 6 through 12.

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First, concerning Shooter’s reliance on defendants’ marketing, plaintiffs’ allegations are conclusory. Generally, a plaintiff may plead “based on ‘information and belief if such plaintiff is in a position of uncertainty because the necessary evidence is controlled by the defendant.” Ridenour v. Multi-Color Corp., 147 F. Supp. 3d 452, 456 (E.D. Va. 2015). But, like all other allegations, allegations pled upon information and belief “may not be wholly conclusory.” Kashdan v. George Mason Univ., 70 F.4th 694, 701 (4th Cir. 2023). If “not supported by any well-pled facts that exist independent of [plaintiffs’] legal conclusions,” allegations pled upon information and belief fail. Id. Such is the case here: no factual allegations in the complaint support the conclusion that Shooter relied on defendants’ marketing. The complaint does not suggest defendants control such evidence of Shooter’s reliance and does no more than speculate that Shooter, like other young men in Virginia, observed defendants’ advertisements. Without more support, these pleadings fail to raise plaintiffs’ right to relief above the speculative level and can proceed no further. Lokhova v. Halper, 995 F.3d 134, 148 (4th Cir. 2021) (“It is well established that speculative conclusions are insufficient to survive a motion to dismiss.”).

Second, viewed most optimistically, plaintiffs allege that Shooter relied on defendants’ advertisements when choosing to purchase defendants’ products. The Court cannot transform that allegation into an allegation that defendants’ marketing had a “determinative or coercive effect” on Shooters’ decision to shoot at plaintiffs. While the bounds of Article III’s causation requirement may at times seem opaque, “[c]ausation makes its most useful contribution to standing analysis in circumstances that show a clear break in the causal chain.” 13A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3531.5 (3d ed. 2024). Here, the actions of a third party injured plaintiffs. As explained above, completing the causal chain requires plaintiffs to allege defendants’ conduct had a determinative or coercive effect on that third party’s injurious actions. This complaint, however, fails to make that allegation. Maybe defendants’ advertising coerced Shooter to purchase defendants’ products (and that allegation, as discussed above, is speculative), but absent is any allegation that defendants’ advertising coerced Shooter to attack the elementary [sic] school. Without that allegation, plaintiffs’ alleged causal chain is incomplete, and [they] lack standing against these defendants.

Id. at 5-6.

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Notwithstanding the Dismissal Ruling’s threshold jurisdictional determinations —

i.e., that the plaintiffs lacked Article III standing to sue in federal court on account of the

fact that the complaints failed to establish that the plaintiffs’ gruesome and horrendous

injuries were “fairly traceable” to the defendants’ alleged misconduct — the district court

then also ruled that the PLCAA served as a bar to each of the claims alleged against the

defendants. On that basis, the court dismissed each of the plaintiffs’ claims on their merits

against all defendants, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. 8

* * *

On August 22, 2024, the plaintiffs timely noticed this appeal from the Dismissal

Ruling. And we possess final decision jurisdiction pursuant to 28 U.S.C. § 1291. 9

8 We also observe that, on its own initiative, the Dismissal Ruling surprisingly dismissed three defendants on PLCAA grounds, even though they had not moved for such relief. Otherwise, in the Harris case, the court dismissed the previously defaulted defendant — FAB Manufacturing — without that defendant even seeking such relief. 9 The defendants advance a rather fleeting and undeveloped argument that this Court lacks appellate jurisdiction under § 1291, asserting that the complaints each named unknown “John Doe” defendants. See Br. of Appellees 2. As the defendants acknowledge in their responsive submissions, however, the plaintiffs have agreed to dismiss the Doe defendants and have not otherwise appealed those dismissals. Accordingly, as observed above, we possess jurisdiction in this appeal, pursuant to 28 U.S.C. § 1291. See, e.g., Koehler v. Dodwell, 152 F.3d 304, 308 (4th Cir. 1998) (recognizing well-settled rule that “a [dispensable] party . . . whose presence deprives the court of jurisdiction may be dropped or severed from the action” to preserve jurisdiction); Caperton v. Beatrice Pocahontas Coal Co., 585 F.2d 683, 691-92 (4th Cir. 1978) (same).

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II.

“We review de novo a district court’s dismissal of a complaint for want of Article

III standing to sue — and thus for lack of subject matter jurisdiction — under Federal Rule

of Civil Procedure 12(b)(1).” See Ali v. Hogan, 26 F.4th 587, 595 (4th Cir. 2022). To that

end, when — as is the case here — a defendant makes a facial challenge to subject matter

jurisdiction, “the plaintiff, in effect, is afforded the same procedural protection as he would

receive under a Rule 12(b)(6) consideration.” See Adams v. Bain, 697 F.2d 1213, 1219

(4th Cir. 1982). Under that standard, “[t]o survive a motion to dismiss, a complaint must

contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible

on its face.” See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation modified).

Importantly, as our Court has recognized, plaintiffs are not required “to prove [their]

case in the complaint.” See Robertson v. Sea Pines Real Est. Cos., Inc., 679 F.3d 278, 291

(4th Cir. 2012) (recognizing that “[t]he requirement of nonconclusory factual detail at the

pleading stage is tempered by the recognition that a plaintiff may only have so much

information at [her] disposal at the outset”). Furthermore, Rule 12(b)(6) “does not

countenance . . . dismissal based on a judge’s disbelief of a complaint’s factual allegations.”

See Neitzke v. Williams, 490 U.S. 319, 327 (1989). Indeed, it is “error” for a district judge

to give “a serious claim the back of its hand” because it does not believe the plaintiff’s

allegations. See Colon Health Ctrs. of Am., LLC v. Hazel, 733 F.3d 535, 545 (4th Cir.

2013). Rather, the federal courts are obliged to “accept as true all well-pleaded allegations

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and . . . view the complaint in the light most favorable to the plaintiff.” See Mylan Lab’ys,

Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993).

III.

The first issue we address is whether the plaintiffs possess Article III standing to

sue in federal court. More specifically, that question is whether the plaintiffs’ factual

allegations establish that their gruesome injuries from the alleged shootings are “fairly

traceable” to the defendants’ purported misconduct. See Lujan v. Defs. of Wildlife, 504

U.S. 555, 560 (1992). By its Dismissal Ruling, the district court concluded that the

plaintiffs lack Article III standing to sue. That ruling is erroneous, however, and warrants

a reversal. Put simply, the plaintiffs possess Article III standing to sue in federal court.

Furthermore, in these circumstances, we are obliged to refrain from considering any

other aspects of the Dismissal Ruling — that is, the advisory rulings that the plaintiffs’

claims against all defendants are barred on the merits by the PLCAA. Instead, we vacate,

set aside, and hold for naught the advisory aspects of the Dismissal Ruling pertaining to

the PLCAA. And we remand for such other and further proceedings as may be appropriate.

“Article III of the Constitution requires a litigant to possess standing to sue in order

for a lawsuit to proceed in federal court.” See Ali v. Hogan, 26 F.4th 587, 595 (4th Cir.

2022); Benham v. City of Charlotte, 635 F.3d 129, 134 (4th Cir. 2011) (explaining that

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“[s]tanding to sue is one aspect of the mandate that an action must present a ‘case or

controversy’ under Article III”). Standing to sue has been described by the Supreme Court

as the “irreducible constitutional minimum” that must be satisfied in all federal cases.

See Lujan, 504 U.S. at 560. As the Court emphasized recently, “[b]y limiting who can sue,

the standing requirement implements ‘the Framers’ concept of the proper — and properly

limited — role of the courts in a democratic society.” See Diamond Alt. Energy, LLC v.

Env’t Prot. Agency, 606 U.S. 100, 111 (2025) (citation modified). Indeed, “[s]tanding

doctrine also tends to assure that the legal questions presented to the court will be resolved,

not in the rarified atmosphere of a debating society, but in a concrete factual context

conducive to a realistic appreciation of the consequences of judicial action.” Id.

To that end, in its 1992 Lujan decision, the Supreme Court outlined the three

requirements that a plaintiff must establish in order to possess Article III standing: (1) “an

injury in fact” that is “concrete and particularized”; (2) “a causal connection between the

injury and the conduct complained of,” such that the injury is “fairly traceable to the

challenged action of the defendant”; and (3) a likelihood that the injury will be “redressed

by a favorable decision.” See 504 U.S. at 560-61 (citation modified). Ultimately, it is the

plaintiff who bears the burden of establishing Article III standing to sue in federal court “at

the time he filed suit.” See Carney v. Adams, 592 U.S. 53, 59 (2020); Friends of the Earth,

Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 191 (2000).

Of especial relevance here, “[a]t the pleading stage, general factual allegations of

injury resulting from the defendant’s conduct may suffice, for on a motion to dismiss we

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presume that general allegations embrace those specific facts that are necessary to support

the claim.” See Lujan, 504 U.S. at 561 (citation modified). In that regard, although a

plaintiff is required to allege “nonconclusory factual details” in the complaint, our Court

has recognized that this requirement is “tempered by the recognition that a plaintiff may

only have so much information at [his or her] disposal at the outset” of litigation. See

Robertson v. Sea Pines Real Est. Cos., Inc., 679 F.3d 278, 291 (4th Cir. 2012).

Moreover, a federal court is obliged to analyze the issue of Article III standing

“differently depending on the stage of the litigation at which the challenge is brought and

the substance of the defendant’s arguments.” See Overbey v. Mayor of Balt., 930 F.3d 215,

227 (4th Cir. 2019); Wikimedia Found. v. Nat’l Sec. Agency, 857 F.3d 193, 212 (4th Cir.

2017). At the motion to dismiss stage, the Supreme Court has characterized the Lujan

standing requirements as being “relatively modest.” See Bennett v. Spear, 520 U.S. 154,

171 (1997). And that is particularly so as it relates to traceability. See DiCocco v. Garland,

52 F.4th 588, 592 (4th Cir. 2022) (recognizing that “[a]t the motion-to-dismiss stage, [the

traceability] burden is relatively modest . . . and lower than the causation showing required

to prevail in a tort suit”); Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S.

118, 128 n.4 (2014) (“Proximate causation is not a requirement of Article III standing[.]”).

Against this backdrop of constitutional standing principles, the parties do not

dispute the proposition that the plaintiffs satisfy both the first and the third of the Lujan

elements. And in that regard, the district court did not even address those two elements in

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its Dismissal Ruling. Based upon our independent review of the respective factual

allegations in the complaints, however, we are entirely satisfied that both of those Lujan

elements are established here. See, e.g., Summers v. Earth Island Inst., 555 U.S. 488, 499

(2009) (recognizing that federal courts have “an independent obligation to assure that

[Article III] standing exists, regardless of whether it is challenged by any of the parties”).

Put succinctly, our focus in this situation is properly on the second Lujan element:

whether the allegations in the complaints have established “a causal connection between

the injury and the conduct complained of,” such that the injury is “fairly traceable” to the

defendant’s actions. See 504 U.S. at 560. Again, the plaintiffs’ burden of proof as to that

Lujan element is “relatively modest” at the “motion-to-dismiss stage.” See DiCocco, 52

F.4th at 592; Bennett, 520 U.S. at 171. The Dismissal Ruling is that the complaints failed

to satisfy that Lujan element, such that the plaintiffs lack Article III standing to sue in

federal court. As explained in further detail below, we are constrained to disagree.

In assessing the second Lujan element, the district court anchored its faulty analysis

on the question of whether the “plaintiffs . . . allege[d] that defendants’ conduct had a

determinative or coercive effect upon Shooter’s actions.” See Dismissal Ruling 4. In other

words, the court incorrectly believed that the plaintiffs could satisfy the second Lujan

element (i.e., Article III causation) only if they had demonstrated that the defendants’

conduct had a “determinative or coercive effect” on the actions of the Shooter. Id.

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Put simply, the Supreme Court has disavowed the more stringent and exclusive

approach espoused by the district court. To be sure, although the Court has cautioned that

standing “is ordinarily substantially more difficult to establish” in a case “where a causal

relation between injury and challenged action depends upon the decision of an independent

third party,” it is not impossible to establish. See California v. Texas, 593 U.S. 659, 675

(2021) (citation modified). Rather, as the Court has recognized, if the plaintiffs can “show

at least that third parties [i.e., the Shooter] . . . likely react[ed] in predictable ways,” then

the second Lujan element — i.e., the causation requirement — will be satisfied. Id.; see

also Dep’t of Com. v. New York, 588 U.S. 752, 768 (2019) (ruling that Article III causation

is satisfied where plaintiffs’ theory relied on “predictable effect” of defendants’ actions on

third parties). In this light, the second Lujan element will be satisfied if the plaintiffs allege

that the defendants’ actions had a “predictable effect . . . on the decisions of third parties,”

see Dep’t of Com., 588 U.S. at 768, or when the “injury [was] produced by determinative

or coercive effect upon the action of someone else,” see Bennett, 520 U.S. at 169.

The foregoing makes sense in light of the Supreme Court’s recognition that Article

III standing “requires no more than de facto causality,” see Dep’t of Com., 588 U.S. at 768

(quoting Block v. Meese, 793 F.2d 1303, 1309 (D.C. Cir. 1986) (Scalia, J.)), along with our

Court’s recognition that the Article III causation burden is “relatively modest,” especially

at the “motion-to-dismiss stage,” see DiCocco, 52 F.4th at 592. To that end, although a

“highly attenuated chain of possibilities” will not support a theory of Article III standing,

see Clapper v. Amnesty Int’l USA, 568 U.S. 398, 410 (2013), when there is “a causal

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connection between the injury and the conduct complained of,” see Dep’t of Educ. v.

Brown, 600 U.S. 551, 561 (2023), the second Lujan element has been satisfied.

Along these lines, we also disagree with the district court and the defendants that

the Supreme Court’s 1997 decision in Bennett announced an exclusive test for ascertaining

whether the second Lujan element has been satisfied. Put simply, if Bennett had announced

an exclusive test, then the Department of Commerce decision in 2019 modified it. See 588

U.S. at 768 (applying “predictable effect” test to ascertain whether plaintiff had satisfied

second Lujan element). 10 Otherwise, as discussed infra, we are satisfied that, if Bennett

announced an exclusive test for cases such as this, the allegations of the complaints show

that the defendants’ actions had a “determinative or coercive effect” on the Shooter.

10 The defendants’ argument that the Court’s Department of Commerce decision limits application of the “predictable effects” test only to pre-enforcement challenges is unpersuasive and underdeveloped. See Br. of Appellees 15-16. Indeed, at least one of our sister circuits — the Second Circuit — has recently concluded that an application of the “determinative or coercive effect” standard “overstates the showing that is required” for Article III standing, which can otherwise be based on “predictable effect[s].” See Ateres Bais Yaakov Acad. of Rockland v. Town of Clarkstown, 88 F.4th 344, 352 (2d Cir. 2023) (relying on 2019 Department of Commerce decision and concluding that Article III causation requirement is satisfied when plaintiff alleges that defendant’s conduct and actions had “[a] predictable effect . . . on the decisions of third parties” (citation modified)).

Furthermore, to the extent the defendants — along with our fine dissenting colleague Judge Quattlebaum, see post at 52-54 — seek to rely on our recent 2025 decision in Sheppheard v. Morrisey, 143 F.4th 232 (4th Cir. 2025), that ruling does not mention — let alone address — the Supreme Court’s 2019 decision in Department of Commerce. Nor could Sheppheard “read in” a requirement that Article III standing is “only” established “if the defendant’s conduct had a determinative or coercive effect upon the action of someone else.” Id. at 243 (quoting Bennett, 520 U.S. at 169) (emphasis added). To be sure, although Bennett recognized that an “injury produced by determinative or coercive effect upon the action of someone else” is sufficient to satisfy Article III’s causation requirement, that decision did not conclude that is the exclusive test. See 520 U.S. at 169.

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In light of the foregoing, we agree with the plaintiffs that the complaints have

demonstrated that the defendants’ actions were “at least in part responsible for” causing

the plaintiffs’ injuries, and that the defendants’ conduct had a “predictable effect” on the

actions of the Shooter. See Dep’t of Com., 588 U.S. at 768; accord Ateres Bais Yaakov

Acad. of Rockland v. Town of Clarkstown, 88 F.4th 344, 352 (2d Cir. 2023) (concluding

that plaintiff possessed Article III standing to sue where defendants’ actions to frustrate

plaintiff’s acquisition of property had “[a] predictable effect on the decisions of relevant

third parties”). We also agree that — on the basis of the allegations in the complaints —

the defendants’ alleged misconduct had a “determinative or coercive” effect on the Shooter.

See Bennett, 520 U.S. at 169. In either situation, the second Lujan element is satisfied.

First, the plaintiffs have sufficiently alleged that the defendants’ conduct had a

“predictable effect” on the actions of the Shooter, such that the defendants are at least in

part responsible for causing the plaintiffs’ injuries. Indeed, the complaints specify that the

defendants deliberately designed their advertisements to appeal to impulsive, risk-seeking

young men; see Lowy Complaint ¶ 55 (alleging that defendants’ “advertisements are

especially salient for—and are targeted to attract—troubled young men attracted to violent

combat, increasing the risk that these young men will use [d]efendants’ deadly weapons,

weapon accessories, and ammunition to perpetrate mass violence”); that the defendants’

advertisements promote the use of military-style weapons (i.e., AR-15s) to civilians who

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have no lawful reason to use them as advertised, id. ¶¶ 57-94; that the defendants “knew

or should have known” that young men such as the Shooter regularly commit mass

shootings using weapons like the ones they advertise, id. ¶ 104; and that the defendants

knew or should have known that marketing their products in such a manner would have an

impact on the Shooter’s decision to amass and use the defendants’ weapons and accessories

to heinously injure the plaintiffs, id. ¶¶ 105, 106. At the Rule 12(b)(1) stage — where the

plaintiffs’ burden is “relatively modest,” see DiCocco, 52 F.4th at 592 — these detailed

and thorough factual allegations were and are sufficient to show “a causal connection

between the injury and the conduct complained of,” see Brown, 600 U.S. at 561.

For their part, the defendants resist this straightforward conclusion, and they do so

primarily by maintaining that they were not “the ones who opened fire on [the] school.”

See Br. of Appellees 11. As the plaintiffs argue, however, that reasoning “fundamentally

misstates the relevant inquiry.” See Reply Br. of Appellants 4. To be sure, Article III

standing “does not require the [defendants’] challenged action to be the sole or even

immediate cause of the injury.” See Sierra Club v. U.S. Dep’t of the Interior, 899 F.3d

260, 284 (4th Cir. 2018). Instead, so long as the defendants’ conduct had a “predictable

effect” on the Shooter’s conduct, the second Lujan element is satisfied. See Dep’t of Com.,

588 U.S. at 768; FDA v. All. for Hippocratic Med., 602 U.S. 367, 383-85 (2024).

Our conclusion in that respect finds solid support in the authorities relied on by the

defendants. See Br. of Appellees 16. In Block v. Meese, then-Circuit Judge Scalia cogently

explained that “[i]t is impossible to maintain, of course, that there is no standing to sue

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regarding action of a defendant which harms the plaintiff only through the reaction of third

persons.” See 793 F.2d 1303, 1309 (D.C. Cir. 1986). Rather, as Block clarified, if the

plaintiff alleges sufficient facts demonstrating the effect of a defendant’s actions on a third

party (whose actions in turn harmed the plaintiff), the plaintiff has “adequately alleged”

Article III standing, “which requires no more than de facto causality.” Id.

(a)

Next, we turn to whether the plaintiffs sufficiently alleged that the defendants’

actions had a “determinative or coercive effect” on the Shooter. On that score, the district

court chided the plaintiffs for offering “no factual allegations . . . [to] support the

conclusion that Shooter relied on defendants’ marketing,” explaining that their allegations

“concerning [the Shooter’s] reliance on defendants’ marketing . . . are conclusory.” See

Dismissal Ruling 5. From there, the court reasoned that “the actions of a third party injured

plaintiffs,” and that “completing the causal chain requires plaintiffs to allege defendants’

conduct had a determinative or coercive effect on that third party’s injurious actions.” Id.

at 6. According to the Dismissal Ruling, however, the complaints failed to allege “that

defendants’ advertising coerced Shooter to attack the elementary [sic] school.” Id.

Simply put, we disagree. As our Court has explained, the “determinative or coercive

effect” standard is satisfied when the defendant publishes information which leads a third

party to conclude that it should proceed in a manner that injures a plaintiff. See Lansdowne

on the Potomac Homeowners Ass’n, Inc. v. OpenBand at Lansdowne, LLC, 713 F.3d 187,

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197 (4th Cir. 2013). In Lansdowne, Judge Wilkinson carefully explained that the plaintiff,

a homeowner’s association, had “established the second element of the Article III standing

inquiry” by showing that the defendant’s conduct and actions caused third-parties — i.e.,

cable providers Verizon and Comcast — to refrain from providing any cable services to

the plaintiff. Id. Our distinguished colleague thus concluded that the Lansdowne plaintiff

had suffered an injury-in-fact that was “produced by the determinative or coercive effect”

of the defendant’s conduct “upon the action of someone else.” Id. (citation modified).

Much like the allegations in the Lansdowne case, the complaints in these

proceedings have sufficiently alleged that the defendants’ marketing and advertisements

had a determinative or coercive effect in causing a third party (i.e., the Shooter, a self-

described “AR-15 aficionado”) to commit this monstrous school shooting — a senseless

and needlessly tragic event that closely mirrored the imagery included in the defendants’

advertisements. See generally Lowy Complaint ¶ 57-102 (defendants’ advertisements);

see also id. ¶ 121 (alleging that “the Shooter assembled [d]efendants’ products to create

customized weapons of war for use in the Shooting”); id. ¶ 122 (specifying that “the

Shooter also purchased various weapons, weapon accessories, and ammunition online from

a number of retailers, exposing the Shooter to [d]efendants’ products and advertisements”).

Resisting this straightforward conclusion in its own right, the Dismissal Ruling

made much of the fact that the plaintiffs did not specifically allege that the “defendants’

advertising coerced the [Shooter] to attack the elementary [sic] school.” See Dismissal

Ruling 6. But that rationale amounts to nothing more than a “magic words” pleading

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requirement, which courts have routinely cautioned against. See, e.g., Barron v. United

States, 111 F.4th 667, 674 (5th Cir. 2024) (recognizing that “[f]ederal pleading standards

do not demand ‘any magic words’”). Instead, in evaluating the defendants’ motions to

dismiss for lack of Article III standing, the court was required — but fatally failed — to

“presume that general allegations embrace those specific facts that are necessary to support

the claim.” See Lujan, 504 U.S. at 561. And here, it is apparent that the plaintiffs’ detailed

and thorough factual allegations sufficiently demonstrate that the defendants’ conduct had

a “determinative or coercive effect” on the Shooter’s actions related to the shooting. 11

(b)

Additionally, we are entirely unpersuaded by the district court’s rationale that the

plaintiffs’ allegations in the complaints that are predicated on “information and belief” are

only an appropriate pleading practice when the necessary information is exclusively in the

defendants’ control. See Dismissal Ruling 6 (“The complaint does not suggest defendants

control such evidence of [the Shooter’s] reliance and does no more than speculate that [the

Shooter], like other young men in Virginia, observed defendants’ advertisements. Without

more support, these pleadings fail to raise plaintiffs’ right to relief above the speculative

level and can proceed no further.”). As the plaintiffs emphasize, however, such reasoning

11 We readily reject the defendants’ contention that the Article III causation element required the pleading of allegations that the Shooter saw each example of the defendants’ allegedly unlawful advertisements. See Br. of Appellees 11-13. Not only does that assertion overstate the plaintiffs’ burden, see Robertson, 679 F.3d at 291, it ignores the fact that the relevant information about the Shooter’s interactions with the defendants is held by them and other third-parties, such as law enforcement — not by the plaintiffs.

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overlooks the important fact that “information supporting [their] claims may well be in [the

defendants’] possession, given that [the defendants] control and/or have access to their own

social media, online platforms, and mailing lists.” See Br. of Appellant 33.

Not only that, but the district court’s mystifying rejection of “information and

belief” pleading in a complaint gets the law wrong. To be sure, that pleading practice is

expressly authorized by the applicable Rules of Civil Procedure, when the allegations are

based “on sufficient factual material that makes the inference of culpability plausible.” See

Ahern Rentals, Inc. v. EquipmentShare.com, Inc., 59 F.4th 948, 954 (8th Cir. 2023)

(explaining that federal courts “cannot always expect plaintiffs to provide robust

evidentiary support for their allegations at the pleading stage because, in some contexts,

that information may not be available to [the plaintiffs] before discovery”). As Rule

11(b)(3) of the Federal Rules of Civil Procedure specifically contemplates,

[a]n attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: . . . the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery[.]

See Fed. R. Civ. P. 11(b)(3) (emphasis added)). 12 In other words, factual “allegations pled

on information and belief are not categorically insufficient to state a claim for relief where

12 Our sister circuits have consistently agreed that factual allegations that are pleaded on “information and belief” are not to be rejected under Twombly where “the facts are peculiarly within the possession and control of the defendant, or where the belief is based on factual information that makes the inference of culpability plausible.” See Arista Recs. LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010) (emphasis added); see also Menard v. CSX Transp., Inc., 698 F.3d 40, 45 (1st Cir. 2012); McDermott v. Clondalkin Grp., Inc., (Continued)

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the proof supporting the allegation is within the sole possession and control of the

defendant or where the belief is based on sufficient factual material that makes the

inference of culpability plausible.” See Ahern Rentals, 59 F.4th at 954 (emphasis added). 13

In making those errors, the Dismissal Ruling disregarded numerous factual

allegations of the complaints that the plaintiffs had properly pleaded on information and

belief. Cf. Colon Health Ctrs. of Am., LLC v. Hazel, 733 F.3d 535, 545 (4th Cir. 2013)

(recognizing that “dismissal [cannot be] based on a judge’s disbelief of a complaint’s

factual allegations”). And those disregarded allegations — which serve to support the

plaintiffs’ belief that the defendants’ allegedly unlawful marketing practices had a

determinative or coercive effect on the Shooter’s heinous acts — include the following:

• That the Shooter specifically chose the defendants’ products to execute the shooting at the Burke School, see Lowy Complaint ¶ 120 (“Though he owned numerous other weapons, weapon accessories, and boxes of ammunition, [d]efendants’ products were his weapons, weapon accessories, and ammunition of choice. Upon information and belief, the Shooter made these choices because he perceived these weapons, accessories, and ammunition to be a superior fit for carrying out his mission of causing the most destruction possible.”);

649 Fed. App’x 263, 267-68 (3d Cir. 2016); Innova Hosp. San Antonio, Ltd. P’ship v. Blue Cross & Blue Shield of Ga., Inc., 892 F.3d 719, 730 (5th Cir. 2018); Pirelli Armstrong Tire Corp. Retiree Med. Benefits Tr. v. Walgreen Co., 631 F.3d 436, 442-43 (7th Cir. 2011); Soo Park v. Thompson, 851 F.3d 910, 928 (9th Cir. 2017); Kareem v. Haspel, 986 F.3d 859, 866 (D.C. Cir.), cert. denied sub nom., Kareem v. Burns, 142 S. Ct. 486 (2021). 13 We observe that, in chastising the plaintiffs’ pleading practices in the complaints, the district court relied on authority that allegations made on information or belief are entirely permissible. See, e.g., Ridenour v. Multi-Color Corp., 147 F.Supp.3d 452, 456 (E.D. Va. 2015) (collecting decisions regarding propriety of information and belief pleading practice, including when plaintiffs have relied “on second-hand information”).

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• That the Shooter assembled the defendants’ products after searching online for “how-to instructions and instructional videos,” id. ¶ 121 (“Upon information and belief, the Shooter assembled [d]efendants’ products to create customized weapons of war for use in the Shooting. The Shooter’s online presence suggests that he did so after searching online for how-to instructions and instructional videos.”); and

• That the Shooter used the defendants’ dangerous and deadly weapons in ways that closely mirrored their pre-shooting marketing activities, id. ¶ 123 (“Upon information and belief, the Shooter was exposed to and influenced by [d]efendants’ deceptive and unfair marketing acts and practices while researching and planning the Shooting.”).

These factual allegations in the complaints are not at all “speculative,” and otherwise show

“facts supporting the allegations that were pleaded [by the plaintiffs] upon information and

belief.” See Kashdan v. George Mason Univ., 70 F.4th 694, 702 (4th Cir. 2023).

(c)

Finally, that the defendants’ conduct may not have been the “last step in the chain

of causation” does not alter the result we reach today. See Bennett, 520 U.S. at 169. As

the Supreme Court explained in its 1997 Bennett decision, for an injury-in-fact to be “fairly

traceable” to a defendant’s conduct, it matters not whether the defendant’s “actions are the

very last step in the chain of causation.” Id. Rather, so long as a defendant is “keenly

aware” of the “virtually determinative effect” of its conduct on the alleged actions of a third

party (in this situation, the Shooter), a plaintiff has sufficiently alleged that the defendant’s

actions had a “determinative or coercive effect” on the third party. Id. at 170. As in the

Court’s Bennett decision, “it is not difficult to conclude [here] that [the plaintiffs] have met

their burden — which is relatively modest at this stage of the litigation — of alleging that

their injury is ‘fairly traceable’ to the” the defendants’ alleged conduct. Id.

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At bottom, the plaintiffs’ theory of Article III standing — and, in particular, their

theory of Lujan causation — is cognizable and survives the defendants’ Rule 12(b)(1)

motions to dismiss. To that end, the plaintiffs’ burden as to the issue of Article III causation

is “relatively modest” at the “motion-to-dismiss stage.” See DiCocco, 52 F.4th at 592.

Spanning hundreds of paragraphs, the complaints specify that the defendants marketed

their assault weapons and other related products in a manner that promotes the militaristic

and unlawful use of those products; that the defendants knew their advertisements

contained content unsuitable for certain audiences and that such marketing could lead to

mass shootings; that the defendants’ deceptive marketing specifically targeted young men

like the Shooter; that the Shooter — a self-identified “AR-15 aficionado” — was exposed

to and influenced by the defendants’ unlawful marketing while planning the April 2022

shooting at the Burke School; and that specific advertisements published by the defendants

and promoted just before the shooting bear a striking resemblance to the sniper-style assault

that brutally maimed and injured the plaintiffs. Because we are satisfied that the plaintiffs

possess Article III standing to sue, we reverse the Dismissal Ruling in that regard.

After concluding that the plaintiffs lacked the requisite Article III standing to sue,

the district court went on to dismiss each of the plaintiffs’ claims on the merits — pursuant

to Rule 12(b)(6) — on the sole basis that a 2005 federal enactment (i.e., the PLCAA) bars

the plaintiffs’ claims against the defendants. For differing reasons, all the parties have

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surprisingly argued that we are entitled to reach and assess that statutory aspect of the

Dismissal Ruling. We readily reject those invitations. Instead, as discussed below, we are

obliged to vacate, set aside, and hold for naught the remainder of the Dismissal Ruling. 14

In the Supreme Court’s seminal 1868 case of Ex parte McCardle, then-Chief Justice

Salmon Chase explained that “[w]ithout jurisdiction [a] court cannot proceed at all in any

cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function

remaining to the court is that of announcing the fact and dismissing the cause.” See 74

U.S. 506, 514 (1868) (emphasis added); Steel Co. v. Citizens for a Better Env’t, 523 U.S.

83, 94 (1998) (quoting Ex parte McCardle, 74 U.S. at 514). Put differently, when a federal

court has ruled that it lacks subject-matter jurisdiction, it must dismiss the case. The court

can do nothing else without exceeding the lawful bounds of its Article III judicial authority.

To that end, by its Steel Co. case in 1998, the Supreme Court again held that, under

Article III, a federal court must satisfy itself of subject‐matter jurisdiction before

considering the merits of an alleged claim. Stated otherwise, a federal court cannot assume

14 We pause to mention an important and salient point: our vacatur of the remaining balance of the Dismissal Ruling is not an indication — in any way — of agreement with Judge Quattlebaum’s unnecessary and passing assessment in his dissenting opinion of whether the PLCCA serves as a valid basis for a Rule 12(b)(6) dismissal of the plaintiffs’ lawsuits against these defendants. See post at 69 (“And, if I agreed with the majority that the district court erred in its jurisdictional assessment, I would see nothing wrong with affirming dismissal of most defendants on the basis of the district court’s alternative holding.”). Put simply, that assessment is not authoritative in any manner, in that our dissenting colleague does not “possess a roving writ to gratuitously decide an interesting . . . issue.” See Palmer v. Liberty Univ., 72 F.4th 52, 68, n.8 (4th Cir. 2023).

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that Article III’s jurisdictional requirements are satisfied, simply to reach the merits of an

“interesting . . . issue.” See Palmer v. Liberty Univ., 72 F.4th 52, 68 n.8 (4th Cir. 2023)

(recognizing that federal courts do “not possess a roving writ to gratuitously decide an

interesting . . . issue”). Writing for the Court in Steel Co., Justice Scalia cogently explained:

While some of the . . . cases must be acknowledged to have diluted the absolute purity of the rule that Article III jurisdiction is always an antecedent question, none of them even approaches approval of a doctrine of “hypothetical jurisdiction” that enables a court to resolve contested questions of law when its jurisdiction is in doubt. Hypothetical jurisdiction produces nothing more than a hypothetical judgment — which comes to the same thing as an advisory opinion, disapproved by this Court from the beginning. Muskrat v. United States, 219 U.S. 346, 362 (1911); Hayburn’s Case, 2 Dall. 409 (1792). Much more than legal niceties are at stake here. The statutory and (especially) constitutional elements of jurisdiction are an essential ingredient of separation and equilibration of powers, restraining the courts from acting at certain times, and even restraining them from acting permanently regarding certain subjects. See United States v. Richardson, 418 U.S. 166, 179 (1974); Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 227 (1974). For a court to pronounce upon the meaning or the constitutionality of a state or federal law when it has no jurisdiction to do so is, by very definition, for a court to act ultra vires.

See 523 U.S. at 101 (citation modified); accord Ruhrgas AG v. Marathon Oil Co., 526 U.S.

574, 577 (1999) (relying on Steel Co. precedent for proposition that “[t]he requirement that

jurisdiction be established as a threshold matter . . . is inflexible and without exception . . .

for jurisdiction is power to declare the law . . . and without jurisdiction the court cannot

proceed at all in any cause” (citation modified) (emphasis added)).

After determining that the plaintiffs lacked Article III standing to sue, the Dismissal

Ruling proceeded to dismiss the plaintiffs’ claims on their merits, reasoning that the

complaints had failed to state a plausible claim upon which relief could be granted. But

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pursuant to the Ex parte McCardle and Steel Co. precedents, the district court was not

authorized to render such impermissible and advisory merits rulings. See MedImmune,

Inc. v. Genentech, Inc., 549 U.S. 118, 127 (2007) (recognizing that federal courts cannot

issue advisory opinions that merely address “what the law would be upon a hypothetical

set of facts” (citation modified)). Rather, applying applicable precedent, the court could

only have dismissed these complaints without prejudice. See, e.g., Ali v. Hogan, 26 F.4th

587, 595 (4th Cir. 2022); Goldman v. Brink, 41 F.4th 366, 369 (4th Cir. 2022).

Such an outcome is also consistent with the approach taken by the Second Circuit

— that is, if a court dismisses a case for lack of subject-matter jurisdiction, then it does not

possess the power to adjudicate a Rule 12(b)(6) motion to dismiss for failure to state a

claim. See, e.g., Morrison v. Nat’l Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008)

(“Determining the existence of subject matter jurisdiction is a threshold inquiry[.]”); Harty

v. Simon Prop. Grp., L.P., 428 Fed. App’x 69, 72-73 (2d Cir. 2011) (“Because the district

court dismissed [the plaintiff’s] ADA claim for lack of standing, however, it lacked

jurisdiction to adjudicate [the defendant’s] alternative motion to dismiss for failure to state

a claim.”). In such a case, the Rule 12(b)(6) ruling must be set aside, as there is otherwise

no Rule 12(b)(6) motion “that is subject to our review on appeal.” See Harty, 428 Fed.

App’x at 73. Simply put, once a court concludes that there is a lack of Article III standing,

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it “lacks the power to adjudicate the merits of the case” or “to dismiss a case with

prejudice.” See Carter v. HealthPort Techs., LLC, 822 F.3d 47, 54-55 (2d Cir. 2016). 15

Again, there is no reason at all to depart from the Ex parte McCardle and Steel Co.

precedents, even out of concern for “judicial economy.” As the Supreme Court declared

in Ruhrgas AG v. Marathon Oil, “[t]he requirement that jurisdiction be established as a

threshold matter . . . is inflexible and without exception[.]” See 526 U.S. at 577. To depart

from that principle in this situation — i.e., by sanctioning and reviewing the district court’s

advisory rulings on the merits — simply undermines the controlling mandate that a federal

court must cease judicial activity once it rules that subject-matter jurisdiction is lacking. 16

15 We observe that the district court’s dismissal practice is problematic for another solid reason. Although a dismissal for lack of Article III standing is without prejudice, see Ali, 26 F.4th at 595, a dismissal under Rule 12(b)(6) is made with prejudice, unless specifically ordered otherwise, see, e.g., Carter v. Norfolk Cmty. Hosp. Ass’n, Inc., 761 F.2d 970, 974 (4th Cir. 1985) (“A district court’s dismissal under Rule 12(b)(6) is, of course, with prejudice unless it specifically orders dismissal without prejudice.”). Here, the Dismissal Ruling did not specify whether the court’s improvident Rule 12(b)(6) dismissals were with or without prejudice, such that they were made with prejudice. Id. 16 Our dissenting colleague suggests that this Court has heretofore “affirmed a district court’s alternative holding after finding the district court erred in dismissing an action for lack of subject-matter jurisdiction.” See post at 68 (citing Food Town Stores, Inc. v. E.E.O.C., 708 F.2d 920, 923-25 (4th Cir. 1983), and Protopapas v. Travelers Cas. & Sur. Co., 94 F.4th 351, 358-59 (4th Cir. 2024)). Notably, neither decision cited by the dissent involved a district court concluding that a plaintiff lacked Article III standing to sue in federal court — an “irreducible constitutional minimum” that must be satisfied in every case, see Lujan, 504 U.S. at 560 — followed by an alternative “advisory” and with- prejudice dismissal of an action under Rule 12(b)(6). See Food Town Stores, Inc., 708 F.2d at 923-25 (district court dismissing case for lack of subject-matter jurisdiction under 28 U.S.C. § 1331 and alternatively reaching merits at summary judgment stage); Protopapas, 94 F.4th at 353 (district court dismissing case for lack of subject-matter jurisdiction under 28 U.S.C. § 1332 and alternatively concluding that procedural defect precluded removal).

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Turning to the appropriate remedy, we will briefly explain our decision to vacate

those aspects of the Dismissal Ruling that are impermissible and merely advisory,

consistent with Ex parte McCardle and Steel Co. As heretofore emphasized, the district

court’s ruling on Article III standing deprived it of any authority to adjudicate the merits

of these cases. Therefore, the court acted ultra vires by reaching the merits and dismissing

the complaints — with prejudice — under Rule 12(b)(6) of the Rules of Civil Procedure.

Put most simply, the district court had rendered moot the balance of its Dismissal

Ruling by its initial determination concerning Article III standing. In somewhat analogous

circumstances, the Supreme Court has aptly recognized that the vacatur of an underlying

judgment — which is rendered moot by vagaries and happenstance, as opposed to any

voluntary party conduct — is entirely appropriate, insofar as it “clears the path for future

relitigation of the issues between the parties.” See Alvarez v. Smith, 558 U.S. 87, 94 (2009).

Consistent with that proposition, we vacate, set aside, and hold for naught the unreviewed

advisory aspects of the Dismissal Ruling — that is, the district court’s improvident

determinations that the plaintiffs’ claims are each barred by the PLCAA. 17

17 To the extent the plaintiffs have also raised another challenge to the procedural propriety of the Dismissal Ruling — i.e., by maintaining that it fails to comply with the Federal Rules of Civil Procedure insofar as it dismissed three defendants on grounds that those defendants did not raise, along with a contention that the district court impermissibly dismissed the Harris case against defendant FAB Manufacturing absent a proper motion to that effect, see Br. of Appellant 64 — those matters are for the remand proceedings.

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IV.

Pursuant to the foregoing, we reverse the district court’s Article III standing ruling.

We also vacate, set aside, and hold for naught the advisory aspects of the Dismissal Ruling,

and remand for such other and further proceedings as may be appropriate.

REVERSED IN PART, VACATED IN PART, AND REMANDED

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QUATTLEBAUM, Circuit Judge, dissenting:

Sadly, the facts of this case are both tragic and familiar. Week after week, month

after month and year after year, we learn of deaths and injuries from another senseless

shooting. Sometimes they’re from handguns in our nation’s biggest cities. Sometimes

they’re mass shootings with more potent weapons. Sometimes the victims are random.

Sometimes they’re members of a group the shooter hates. More recently, they’ve even been

political leaders.

But neither the tragic facts nor the prevalence of gun violence alter our responsibility

as judges. Our job, as always, is to follow the law wherever it takes us. 1 If we do that, our

task here, while sad, is not hard. Defendants made and sold dangerous but legal products.

A disturbed individual used those products to commit an unspeakable crime. The disturbed

individual, not the makers and sellers of lawful products, caused plaintiffs’ injuries.

Grasping for legal straws, plaintiffs allege that defendants’ advertisements caused

the disturbed individual not only to buy the weapons and ammunition but also to shoot at

students, parents and school employees. The law places a high burden on holding a

defendant liable when an independent third party is the last link in an attenuated causal

1 That doesn’t mean we have no feelings about these issues. Like others, we ask questions like “why does this keep happening?” and “can’t we do something to stop this?” And those of us who believe in a divine being pray about them in the quiet of our homes, asking questions like, “How long, O Lord, must I cry out for help, but You do not listen?” Habakkuk 1:2.

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chain between defendants’ actions and plaintiffs’ injuries. Speculation or guesswork will

not do.

But that is all plaintiffs in this case have. They do not allege the disturbed individual

even saw defendants’ advertisements. They do not explain how the ads caused this

individual—even if he saw them—both to buy the guns and ammunition and to commit

this horrible crime. Plaintiffs simply make broad and conclusory allegations. Under the

law, that is not enough. Plaintiffs fail to plead facts that show their injuries are traceable to

defendants’ conduct under Article III. But even if they passed that bar, the plaintiffs

certainly failed to allege facts that plausibly plead defendants’ conduct proximately caused

their injuries. Either way, the result is the same—plaintiffs’ complaints must be dismissed.

I respectfully dissent.

I begin with the standard for assessing traceability in cases where a plaintiff seeks

to hold a defendant liable when an independent third party is the last link in a causal chain

to that plaintiff’s injuries. Ultimately, I conclude that the district court articulated and

applied the correct standard. But, even if the district court articulated the standard

incorrectly, plaintiffs’ allegations fail to show traceability under the most generous

standard that can be discerned from Supreme Court decisions.

Having explained that the district court correctly dismissed plaintiffs’ complaint

under existing standing principles, I then show that even if these principles conflate

standing with the merits question of causation, plaintiffs’ complaints should still be

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dismissed under Rule 12(b)(6) because they do not plausibly allege facts that, even if true,

show proximate cause.

Article III of the Constitution limits federal courts’ authority to deciding “Cases”

and “Controversies.” U.S. CONST. art. III, § 2. Under the Supreme Court’s interpretation

of this requirement, a plaintiff must show, among other things, that he has standing. Lujan

v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). The “irreducible constitutional minimum of

standing contains three elements”—(1) the plaintiff must have suffered an “injury in fact”

(2) that is “fairly . . . trace[able] to the challenged action of the defendant” and (3) for

which the court can likely provide some redress. Id. at 560–61 (alterations in original)

(citations omitted).

The second of these elements—traceability—asks whether there is some “causal

connection” between a plaintiff’s injury and the defendant’s unlawful conduct. Id. at 560.

This requirement “screens out plaintiffs who were not injured by the defendant’s action.”

Food & Drug Admin. v. All. for Hippocratic Med., 602 U.S. 367, 383 (2024). Under this

limitation, “injury that results from the independent action of some third party not before

the court” will not establish our jurisdiction. Simon v. E. Ky. Welfare Rts. Org., 426 U.S.

26, 41–42 (1976). Still, plaintiffs do not have to allege that defendants’ actions were “the

sole or even immediate cause of the injury.” Sierra Club v. U.S. Dep’t of the Interior, 899

F.3d 260, 284 (4th Cir. 2018). So, when a plaintiff is directly injured by a third party, the

injury may still be fairly traceable to a defendant’s upstream conduct when the third party’s

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actions form the last link in a chain of causation. See Bennett v. Spear, 520 U.S. 154, 168–

69 (1997).

Additionally, the nature of proof required for the plaintiff to make this showing is

consistent “with the manner and degree of evidence required at the successive stages of the

litigation.” Lujan, 504 U.S. at 561. So, at the pleading stage, we presume the truth of the

plaintiff’s allegations and construe those allegations in the plaintiff’s favor. Id.; David v.

Alphin, 704 F.3d 327, 333 (4th Cir. 2013). But, much like when we assess a motion to

dismiss for failure to state a claim under Rule 12(b)(6), we do not “take account of

allegations in the complaint labeled as fact but that constitute nothing more than ‘legal

conclusions’ or ‘naked assertions.’” See David, 704 F.3d at 333 (quoting Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009)). Moreover, we must bear in mind that the plaintiff’s burden is

plausibility, not possibility—“[w]here a complaint pleads facts that are merely consistent

with a defendant’s liability, it stops short of the line between possibility and plausibility of

entitlement to relief.” Iqbal, 556 U.S. at 678 (internal quotation marks omitted) (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)); accord Spokeo, Inc. v. Robins, 578

U.S. 330, 338 (2016) (“Where, as here, a case is at the pleading stage, the plaintiff must

‘clearly . . . allege facts demonstrating’ each element [of standing].” (first alteration in

original) (quoting Warth v. Seldin, 422 U.S. 490, 518 (1975))).

The district court determined that plaintiffs had not alleged that their injuries were

“fairly traceable” to defendants’ conduct. J.A. 329. The court explained that it is difficult,

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but not impossible, for plaintiffs to establish their chain of causation in circumstances like

these, where an independent third party is directly responsible for their injuries. To meet

this high bar, plaintiffs had to allege that defendants’ actions had a “determinative or

coercive effect” on the third party. J.A. 330. The court determined plaintiffs’ allegations

failed to do this for two reasons. First, plaintiffs’ only allegations about the shooter’s

reliance on defendants’ marketing were conclusory. Second, even if the complaints

plausibly alleged the shooter relied on defendants’ marketing when choosing to purchase

a firearm or other products, the complaints did not allege that the ads had a “‘determinative

or coercive effect’ on the shooter’s decision to shoot at plaintiffs.” J.A. 331.

On appeal, plaintiffs argue that the district court applied the wrong standard.

Relying on the Supreme Court’s decision in Department of Commerce v. New York, 588

U.S. 752, 768 (2019), plaintiffs argue that they need only have alleged that defendants’

conduct had a “predictable effect” on the shooter. And they claim they met that standard.

In response, defendants argue that the district court was correct in asking whether

plaintiffs alleged a “determinative or coercive effect.” They argue that this was the standard

announced by the Supreme Court in Bennett, 520 U.S. at 169, when the Court stated that

the defendant’s actions had a “determinative or coercive effect upon the action of someone

else.” And they insist that the Supreme Court did not announce a new standard in

Department of Commerce. Thus, under the Bennett “determinative or coercive effect”

standard, defendants argue plaintiffs’ allegations fail.

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The majority largely agrees with plaintiffs. It believes that, in Bennett and

Department of Commerce, the Supreme Court provided two different, alternative tests for

standing. And because the majority finds plaintiffs met the Department of Commerce

“predictable effect” standard—apparently the more generous of these two tests—the

majority concludes that plaintiffs have standing. But it alternatively reasons that plaintiffs

also established standing under the “determinative or coercive effect” standard.

C.

To me, it’s hard to tell from the Supreme Court’s decisions which test we should

apply—or whether the Supreme Court provided two different tests at all. On the one hand,

nowhere in Department of Commerce did the Court give any indication that it was creating

a new standard or departing from any previous test. See 588 U.S. at 768. And its first

citation after using the “predictable effect” language was to Bennett. See Dep’t of Com.,

588 U.S. at 768 (first citing Bennett, 520 U.S. at 169–70; and then citing Davis v. Fed.

Election Comm’n, 554 U.S. 724, 734–35 (2008)). Also, since deciding Department of

Commerce, the Court has described its standard for traceability in cases when injuries are

directly caused by someone other than the defendant by citing to both Department of

Commerce and Bennett. See All. for Hippocratic Med., 602 U.S. at 382–84. In doing so, it

has given no indication that these two cases are in tension. See id. So, perhaps the Supreme

Court’s “predictable effect” language in Department of Commerce is not a new, lower

standard? Perhaps it simply restates Bennett’s “determinative or coercive effect” standard

using different words? This reading would seem to support defendants’ position.

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On the other hand, despite deciding several cases on traceability for injuries caused

by third parties over the last 30 years, the Supreme Court has not repeated the

“determinative or coercive” language it used in Bennett since that 1997 decision. And it is

reasonable to construe linguistic differences between the “determinative or coercive effect”

language from Bennett and the “predictable effect” language from Department of

Commerce. “Determine” means “to settle (a dispute, question, etc.) conclusively; decide”

or “to establish or affect the nature, kind, or quality of; fix.” Determine, WEBSTER’S NEW

WORLD COLLEGE DICTIONARY (3d ed. 1997). “Coerce” means “to restrain or constrain by

force, esp. by legal authority.” Coerce, WEBSTER’S NEW WORLD COLLEGE DICTIONARY

(3d ed. 1997). And “predict” simply means “to declare or indicate in advance: esp : foretell

on the basis of observation, experience, or scientific reason.” Predict, MERRIAM-

WEBSTER’S COLLEGIATE DICTIONARY (11th ed. 2020). 2 From these definitions, all three

words imply discerning some level of connection between a past event and a future event.

But conclusively deciding, fixing or constraining a particular outcome is more definitive

than foretelling an event in advance based on observation of one’s present circumstances,

even if such foretelling involves a degree of reliability from observation, experience or

2 I am using a dictionary from around the time the Supreme Court decided Bennett to define “determine” and “coerce” and a dictionary from around the time the Supreme Court decided Department of Commerce to define “predict.” The definition of “predict,” however, is essentially the same in the 1997 dictionary. See Predict, WEBSTER’S NEW WORLD COLLEGE DICTIONARY (3d ed. 1997) (defining “predict” as “to say in advance (what one believes will happen); foretell (a future event or events)”). And I saw no meaningfully different definitions of these words in other dictionaries. 50 USCA4 Appeal: 24-1822 Doc: 153 Filed: 02/11/2026 Pg: 51 of 69

scientific reason. So, this distinction would seem to support the position taken by plaintiffs

and the majority.

Still, despite any linguistic differences between Bennett and Department of

Commerce, it’s hard to see from Supreme Court decisions if the two phrases used in those

cases really indicate different standards. That’s because, rather than focusing on those

labels, the Supreme Court’s description of the applicable standard has been consistent in

other respects. Notably, the Court has made clear on several occasions that, in cases like

this one, plaintiffs face a high burden. See, e.g., California v. Texas, 593 U.S. 659, 675

(2021) (“[W]here a causal relation between injury and challenged action depends upon the

decision of an independent third party . . . , standing is not precluded, but it is ordinarily

substantially more difficult to establish.” (internal quotation marks omitted) (quoting

Lujan, 504 U.S. at 562)); Allen v. Wright, 468 U.S. 737, 757–58 (1984); Simon, 426 U.S.

at 44–45; Warth, 422 U.S. at 505; see also All. for Hippocratic Med., 602 U.S. at 382. And

it has made clear that mere speculation or guesswork about how a defendant’s actions

impact a third party does not meet this standard. See, e.g., Murthy v. Missouri, 603 U.S.

43, 57–58 (2024); Clapper v. Amnesty Int’l USA, 568 U.S. 398, 413 (2013); Allen, 468

U.S. at 758–59; Simon, 426 U.S. at 42–45; cf. Dep’t of Com., 588 U.S. at 768 (finding third

party actions were not speculative). Indeed, the Court has suggested that, under this high

standard, “attenuated links” between a defendant’s conduct and “far removed” third-party

actions are not going to cut it “even if predictable.” All. for Hippocratic Med., 602 U.S. at

383 (emphasis added). But see Diamond Alt. Energy, LLC v. Env’t Prot. Agency, 606 U.S.

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100, 112 (2025) (“Courts must distinguish the ‘predictable’ from the ‘speculative’ effects

of government action or judicial relief on third parties.” (quoting All. for Hippocratic Med.,

602 U.S. at 383)).

D.

So, what do we do with all this? To me, while the precise contours of traceability

are a bit unclear, the appropriate disposition of this case is not. Here’s why. First, despite

the confusion, our circuit’s precedent is more clear and remains binding on this panel.

Second, there are several reasons why plaintiffs’ claims fail under Supreme Court

precedent regardless of any difference in language between Bennett and Department of

Commerce.

I start with our precedent. Recently, we explained in Sheppheard v. Morrisey that

“[w]hen multiple actors are involved, a plaintiff can establish causation only if the

defendant’s conduct had a ‘determinative or coercive effect upon the action of someone

else.’” 143 F.4th 232, 243 (4th Cir. 2025) (emphasis added) (quoting Bennett, 520 U.S. at

169). And we reached the same conclusion before that in an unreported opinion. Alvarez

v. Becerra, No. 21-2317, 2023 WL 2908819, at *3 (4th Cir. April 12, 2023) (“Indeed,

where multiple actors are involved, a plaintiff can establish causation only if the

defendant’s conduct had a ‘determinative or coercive effect upon the action of someone

else.’” (emphasis added) (quoting Bennett, 520 U.S. at 169)). While we did not address

Department of Commerce in either Sheppheard or Alvarez, we decided both of those cases

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years after that Supreme Court decision. And in so doing, we found that there is but one

path for a plaintiff to establish traceability between a defendant’s conduct and a third-

party’s actions—a showing that the defendants’ conduct had a “determinative or coercive

effect” on the actions of the third party. See Sheppheard, 143 F.4th at 243; Alvarez, 2023

WL 2908819, at *3. Thus, to the extent there is a question over whether, without saying

so, the Supreme Court created a new test in Department of Commerce, Sheppheard

suggests we have already implicitly answered that question—it didn’t.

The majority resists this conclusion. Instead of following Sheppheard, it relies on

the Second Circuit’s contrary decision in Ateres Bais Yaakov Academy of Rockland v. Town

of Clarkstown, 88 F.4th 344 (2d Cir. 2023). In that case, the Second Circuit reasoned,

without citing or referencing Bennett, that “‘determinative or coercive effect[’] . . . sounds

in proximate cause, which . . . overstates the showing that is required” for a plaintiff to

demonstrate traceability. Ateres, 88 F.4th at 352 (citation omitted). But even though Ateres

conflicts with Sheppheard, the majority relegates Sheppheard to a mere footnote, mainly

because it did not discuss Department of Commerce. True, a panel of our court is not bound

by a prior panel’s decision that is untenable with Supreme Court authority. United States

v. Banks, 29 F.4th 168, 178 (4th Cir. 2022). But the majority doesn’t claim that to be our

situation. And, given the lack of clarity about the relationship between Bennett and

Department of Commerce, we couldn’t say following Sheppheard would “bind us to a path

inconsistent with the Supreme Court’s dictates.” Cf. Rose v. PSA Airlines, Inc., 80 F.4th

488, 504 (4th Cir. 2023); accord Payne v. Taslimi, 998 F.3d 648, 653–55, 655 n.4 (4th Cir.

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2021) (explaining that a prior panel’s decision is usually binding on future panels except,

inter alia, “where Supreme Court decisions, ‘clearly undermine[]’ a panel precedent”

(alteration in original) (quoting United States v. Williams, 155 F.3d 418, 421 (4th Cir.

1998))). As a result, we can’t just cast Sheppheard aside. See Payne, 998 F.3d at 653–55,

654 nn.2–3, 655 n.4; McMellon v. United States, 387 F.3d 329, 332–33 (4th Cir. 2004) (en

banc) (making clear a panel is typically bound by prior panel decisions). That means

Sheppheard controls.

Applying that standard, plaintiffs’ allegations unquestionably fail. Plaintiffs never

allege any facts that, if accepted as true, would show that defendants’ advertisements were

the decisive factor in the shooting or compelled the shooter to fire that day. For example,

several times plaintiffs allege “[u]pon information and belief” that the shooter was

“exposed to and influenced by” defendants’ ads at some point when deciding whether to

purchase defendants’ products. J.A. 81, 165. To state the obvious, being exposed to or even

influenced by ads is a far cry from those ads determining what the shooter would do or

coercing the shooter into committing the atrocities at the Edmund Burke School. And,

beyond the difference in those words, plaintiffs do not allege any facts explaining how the

ads were the decisive factor in the shooter’s decision to use defendants’ products to try to

kill people at a school or compelled him to do that. So, under the “determinative or

coercive” standard, plaintiffs have failed to plead facts that would show, even if true, that

their injuries are traceable to defendants’ conduct.

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The majority seems to rest its alternative holding that plaintiffs sufficiently alleged

defendants’ advertisements had a “determinative or coercive effect” on the shooter based

primarily on our decision in Lansdowne on the Potomac Homeowners Association, Inc. v.

OpenBand at Lansdowne, LLC, 713 F.3d 187 (4th Cir. 2013). To the majority, that case

stands for the proposition that “the ‘determinative or coercive effect’ standard is satisfied

when the defendant publishes information which leads a third party to conclude that it

should proceed in a manner that injures a plaintiff.” Maj. Op. at 31 (quoting Lansdowne,

713 F.3d at 197). But that description misses some key points about Lansdowne.

The case originated as a dispute between a homeowners association and OpenBand,

a group of corporate entities effectively acting as a single cable service provider.

Lansdowne, 713 F.3d at 192–95. Through a series of contractual agreements, easements

and restrictive covenants, the HOA granted OpenBand the exclusive right to establish the

infrastructure necessary to provide cable services. Id. at 193. A few years later, the Federal

Communications Commission adopted a new rule outlawing these types of exclusivity

arrangements. Id. at 192. When the HOA later attempted to find a new cable provider,

competing cable companies refused to provide services to the HOA because of

OpenBand’s exclusivity rights, and the HOA sued OpenBand. Id. at 194–95. OpenBand

argued that the HOA did not have standing because its injuries were caused “by the

independent, intervening actions of third parties not before the court—to wit, the decisions

by competing companies not to offer video service.” Id. at 197. We rejected that argument

based on evidence that the competing cable providers would have provided services to the

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HOA but determined that they could not do so because the exclusivity arrangements

prohibited them from accessing the properties and providing those services. Id.

Thus, the majority is correct, in a very basic sense, that the publication of the

contracts, easements and restrictive covenants caused third-party cable providers to injure

the HOA in Lansdowne. But it wasn’t just the publication of those documents that caused

the HOA’s injury—it was the fact that those documents necessarily resulted in legal and

practical hindrances preventing the third-party cable providers from servicing the HOA. In

contrast, even if plaintiffs’ allegations did not suffer from the problems I already described,

defendants’ advertisements did not affect the shooter’s actions in the same legal and

practical ways as the documents in Lansdowne. Consequently, plaintiffs have failed to

allege defendants’ actions had a “determinative or coercive effect” on the shooter under

our precedent.

In addition, there are other reasons plaintiffs’ claims fail that do not depend on

applying the “determinative or coercive effect” standard. As already described, the

Supreme Court has told us that, regardless of how the standard is labeled, when there is an

independent actor in between the challenged conduct of defendants and the alleged injuries,

plaintiffs face a formidable challenge. California, 593 U.S. at 675. And in facing that

challenge, speculation or guesswork about how a defendant’s actions impact a third party

will not do. Diamond Alt. Energy, 606 U.S. at 112; Murthy, 603 U.S. at 57. For at least

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four reasons, plaintiffs have alleged no facts, beyond speculation and guesswork, that if

true would trace their injuries to defendants’ advertisements.

First, many of plaintiffs’ allegations are conclusory. For example, plaintiffs alleged

“these manufacturers have deceptively and unfairly marketed their assault rifles, rifle

accessories, and ammunition in ways designed to appeal to the impulsive, risk-taking

tendencies of civilian adolescent and post-adolescent males.” J.A. 30. Also, plaintiffs

alleged that “these consumers foreseeably use Defendants’ assault rifles, rifle accessories,

and ammunition in mass shootings.” J.A. 30. Without additional details, allegations that

marketing is unfair and deceptive, that it is designed to appeal to impulsive young men and

that use of defendants’ legal products in mass shootings is foreseeable are the precise types

of legal conclusions and naked factual assertions we are to disregard at this stage in the

litigation. 3 See David, 704 F.3d at 333; see also Spokeo, 578 U.S. at 338.

Second, plaintiffs alleged no facts tying the specific individual who opened fire at

the Edmund Burke School to defendants’ advertisements. For example, while they included

3 The district court rejected many of plaintiffs’ factual allegations because they were pled “upon information and belief.” J.A. 331. The majority makes much of this fact and finds that this was an error in the district court’s decision. According to the majority, “the district court’s mystifying rejection of ‘information and belief pleading’” was in error because that practice is allowed “when the allegations are based ‘on sufficient factual material that makes the inference of culpability plausible.’” Maj. Op. at 34 (quoting Ahern Rentals, Inc. v. EquipmentShare.com, Inc., 59 F.4th 948, 954 (8th Cir. 2023)). This was also the standard employed by the district court. See J.A. 331 (“[A]llegations pled upon information and belief ‘may not be wholly conclusory.’” (quoting Kashdan v. George Mason Univ., 70 F.4th 694, 701 (4th Cir. 2023)). In other words, the district court used the exact standard that the majority says it should have used. Applying it, the district court simply found that plaintiffs allegations were conclusory. To me, that was correct. 57 USCA4 Appeal: 24-1822 Doc: 153 Filed: 02/11/2026 Pg: 58 of 69

35 pages of images of defendants’ online ads, plaintiffs never alleged that the shooter saw

any of them. Also, it is true that plaintiffs alleged generally that the shooter had an online

presence, that he had a Wikipedia page and that he called himself “an AR-15 aficionado”

on that webpage. J.A. 80. But casting aside their speculative and conclusory allegations,

plaintiffs did not allege the shooter ever visited any of defendants’ websites. Nor did they

even allege that he made online purchases of any of the products he used to carry out this

tragedy. Nor did they allege how the ads, even if seen by the shooter, convinced him to not

only buy the products but also use them to try to kill people at a school. Without facts that

allege a connection between defendants’ advertisements and the shooter’s crimes,

plaintiffs’ speculation and guesswork about how defendants’ actions impacted the shooter

do not plausibly satisfy Article III’s traceability requirement. See, e.g., Murthy, 603 U.S.

at 57–58; Clapper, 568 U.S. at 413.

Third, plaintiffs’ own allegations undermine their arguments. For example,

plaintiffs alleged that “the Shooter was exposed to and influenced by Defendants’

deceptive and unfair marketing acts and practices while researching and planning the

Shooting.” J.A. 81 (emphasis added). With this allegation, plaintiffs have created a timing

problem that undermines their claim. How could the advertisements have caused him to

commit the shooting if he was not influenced by the advertisements until he was already

planning his crime?

Finally, some of plaintiffs’ allegations sound more like an anti-gun public policy

campaign than allegations in a lawsuit. For example, they alleged “[t]he Defendants

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employ sales and marketing practices that create and feed a consumer base of young,

civilian men who keep the money rolling in by purchasing not only the rifles, but all the

deadly accessories that go with them—ammunition, optics, high-capacity magazines,

silencers, and laser-aiming devices, among others.” J.A. 30 (emphasis added). They also

alleged that “[r]ather than behave responsibly, Defendants stoke fear of gun regulations

and encourage stockpiling after shootings to increase that demand.” J.A. 30 (emphasis

added). Gun violence is a legitimate issue in our society. Having and expressing strong

views in favor of gun control is certainly appropriate in the policy debate over those issues.

But this is a lawsuit, not a political campaign. Political buzz words like these are not

helpful. And they certainly do not assist plaintiffs’ efforts to establish traceability.

To reiterate, none of these four shortcomings in plaintiffs’ allegations depend on

any distinction between “determinative or coercive effect” and “predictable effect.” That’s

because plaintiffs have failed to plausibly allege defendants’ advertisements had any effect

on the shooter at all—whether determinative, coercive, predictable or otherwise. Thus,

while I disagree with the majority’s reading of Department of Commerce, these defects

render plaintiffs’ allegations insufficient under either of the alternative tests described by

the majority and under the consistent admonishments from the Supreme Court against

allegations that are no more than speculation and guesswork.

Additionally, plaintiffs and the majority make much of the fact that we are at the

motion to dismiss stage of the case. Without discovery, plaintiffs and the majority insist

plaintiffs’ burden is low. I certainly agree that the burden a party faces at the motion to

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dismiss stage is less than the burden at summary judgment and then at trial. But that does

not relieve them of the obligation to allege facts plausibly giving rise to the inference of

traceability. See David, 704 F.3d at 333; cf. DiCocco v. Garland, 52 F.4th 588, 592 (4th

Cir. 2022) (explaining that the plaintiff’s burden was “relatively modest” and finding that

the plaintiff met that burden because she alleged facts showing the defendant’s conduct

was the but-for cause of her injuries (quoting Bennett, 520 U.S. at 171)).

Beyond that, it is incorrect to say that plaintiffs had no way to gather more

information. True, Lowy submitted a FOIA request to the FBI, and the government

objected to providing the information she sought in that FOIA case. See Compl. ¶ 5, Lowy

v. Fed. Bureau of Investigation, No. 1:23-cv-0721-JMC (D.D.C. filed Mar. 16, 2023), ECF

No. 1. But the information she sought was focused on the weapons, ammunition and

supplies used by the shooter. See FOIA Request, Lowy, No. 1:23-cv-0721-JMC, ECF No.

1-1. While the request included general information about the shooting, it did not

specifically seek the type of information that would be most relevant to plaintiffs’

traceability issue, such as information on the shooter’s online presence. Also, besides that

FOIA case, plaintiffs had other options to gain information from defendants. They could

have sued the shooter’s estate and used third-party discovery on defendants to gather

information. Or they could have employed investigators to find out information about the

shooter.

Lastly, we do not dispense with pleading requirements when the information is hard

to acquire. The Supreme Court made this evident in Twombly, 550 U.S. at 558–60. In that

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case, a putative plaintiff class brought an antitrust case against various regional telephone

service providers. Id. at 548–50. The Court explained that the plaintiffs’ complaints could

only survive the pleading stage if they set forth non-conclusory factual allegations showing

that they were plausibly entitled to relief. Id. at 555–58. The Court justified this standard

in part because without non-conclusory factual allegations, a party should not be able to

force another into discovery. Id. at 558–60. Then, just a few years later, the Court clarified,

in Iqbal, that the Twombly pleading standard was not specific to the antitrust context and,

instead, applied in all civil cases. Iqbal, 556 U.S. at 684. In so doing, the Court reiterated

the same concerns with discovery abuses that it raised in Twombly. It explained that Rule

8 “does not unlock the doors of discovery for a plaintiff armed with nothing more than

conclusions.” Iqbal, 556 U.S. at 678–79. The Court also rejected the plaintiffs’ argument

that the pleading standards should be relaxed when only limited discovery would be

needed. Id. at 684–86. Applying those principles here, the difficulty of obtaining discovery

should make no difference in how we evaluate whether plaintiffs have plausibly pled their

claims.

I would affirm the district court’s dismissal for lack of standing.

Even though I would affirm the district court based on current law, I have some

concerns about our modern approach to traceability, at least in a tort action where injuries

are caused by a third party not before the court. But despite those concerns, and even if

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plaintiffs have shown standing, I would still affirm the district court’s alternative dismissal

for lack of proximate cause.

I start with three concerns about our current law on standing. First, the discussion

of whether plaintiffs have alleged standing, under either of the two alternative tests

proposed by the majority, feels very similar to one we’d be having if we were considering

a Rule 12(b)(6) motion to dismiss for failing to plausibly allege facts that show proximate

clause. After all, when we focus on whether a “chain of causation” is broken by an

“independent” event, Bennett, 520 U.S. at 169 (emphasis omitted), or even whether a

defendant’s actions predictably or foreseeably cause a plaintiff’s injuries, Dep’t of Com,

588 U.S. at 768, our inquiry seemingly envelops the very same concerns traditionally

underlying the proximate cause analysis in tort, see Paroline v. United States, 572 U.S.

434, 445 (2014) (“Proximate cause is often explicated in terms of foreseeability or the

scope of the risk created by the predicate conduct. A requirement of proximate cause thus

serves, inter alia, to preclude liability in situations where the causal link between conduct

and result is so attenuated that the consequence is more aptly described as mere fortuity.”

(citations omitted)). Thus, the law seemingly conflates Article III causation and tort

proximate cause in this situation.

Second, it seems like our current law on traceability isn’t entirely consistent. On the

one hand, our current standards seemingly require us to apply the proximate cause analysis

to questions of traceability when a plaintiff’s injuries are directly caused by a third party,

as I just described. And whether we evaluate Article III causation under Bennett’s

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“determinative or coercive” language, Department of Commerce’s “predictable effect”

terminology or the cases that describe the burden as high and one that eschews speculation

and guesswork, the challenge plaintiffs face in these situations is apparently rigorous. But

on the other hand, the Supreme Court has told us “[p]roximate causation is not a

requirement of Article III standing.” Lexmark Int’l, Inc. v. Static Control Components, Inc.,

572 U.S. 118, 134 n.6 (2014). And we’ve said the standard for Article III causation is lower

than the causation showing required to prevail in a tort suit. DiCocco, 52 F.4th at 592. I’m

not sure how to square these two seemingly incongruous commands. 4

Third, it’s hard for me to see how the requirement of showing a sufficient level of

causation helps establish whether we have an Article III Case or Controversy. Indeed, there

is some scholarship suggesting that Article III’s Case and Controversy language, as

originally understood, simply required that a plaintiff must have a cause of action. Cass R.

4 One way to square them is if the language about a high burden is not referring to a different legal standard. Perhaps it’s instead only suggesting that, as a practical matter, showing traceability is harder when a plaintiffs’ injuries are directly caused by actions of a third party not before the court. That is also the case when we think about proximate causation. For instance, imagine a car is traveling at highway speed, and a tire starts to come apart. This makes a loud noise for a mile or so, but the driver keeps going at the same speed. Then, the tire fails, the driver loses control and the vehicle crashes, injuring a passenger. The passenger sues the tire manufacturer, alleging a defective tire. To show that the allegedly defective tire caused the injuries, the passenger must overcome the fact that his injuries were more directly caused by the driver continuing down the road at highway speed and failing to control the vehicle after the tire failed. The passenger may have a more difficult time convincing a jury that it was the tire that caused the crash and not the driver. But there is no more rigorous legal standard. If this is what a higher burden means, it’d be helpful to clarify that an intervening cause complicates a plaintiff’s task as a matter of fact, rather than as a matter of law.

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Sunstein, What’s Standing After Lujan? Of Citizen Suits, “Injuries,” and Article III, 91

MICH. L. REV. 163, 168–81 (1992). According to this view, modern standing doctrine

arguably developed out of interpretations of statutory requirements for bringing cases

under the Administrative Procedures Act. Id. at 181–86; Elizabeth Magill, Standing for the

Public: A Lost History, 95 VA. L. REV. 1131, 1160 (2009). But to the extent those

requirements had purely statutory origins in administrative law, the Supreme Court shifted

them to constitutional requirements for federal jurisdiction through a series of cases in the

1970s. Magill, supra, at 1174–82. So, perhaps our application of Article III’s standing

requirements to common law claims is worth revisiting.

Despite those concerns, even if plaintiffs had made the necessary showing for

standing, I would still find that their claims should be dismissed. That’s because, for largely

the same reasons I found plaintiffs lack standing, they failed to plead facts that plausibly

allege defendants’ conduct proximately caused their injuries. Plaintiffs must allege

proximate causation to properly allege entitlement to relief under any of their claims. 5

5 In counts 1 through 13, plaintiffs accused defendants of violating the Virginia False Advertising Statute (VFAS), Va. Code Ann. § 18.2-216. Then, in counts 14 through 26, plaintiffs alleged defendants violated the Virginia Consumer Protection Act (VCPA), Va. Code Ann. § 59.1-196 et seq. In count 27, plaintiffs sought to hold Daniel Defense, BCM, FosTecH, Griffin Armament, Centurion Arms and SOLGW liable for negligence per se based on their alleged violations of the National Firearms Act (NFA), 26 U.S.C. § 5801 et seq. In count 28, plaintiffs sought to hold this same group of defendants liable for negligence per se based on their alleged violations of Virginia’s Uniform Machine Gun Act (UMGA), Va. Code Ann. § 18.2-288 et seq. Finally, in count 29, plaintiffs accused Daniel Defense, Magpul, FAB Manufacturing, Fiochi Munizioni, Surefire and Torkmag of negligence. Both the VFAS and the VCPA require plaintiffs to demonstrate injuries as a result of defendants’ statutory violations. See Va Code Ann. §§ 59.1-68.3; 59.1-204. (Continued) 64 USCA4 Appeal: 24-1822 Doc: 153 Filed: 02/11/2026 Pg: 65 of 69

Under Virginia law, “[t]he proximate cause of an event is that act or omission which, in

natural and continuing sequence, unbroken by an efficient intervening cause, produces the

event, and without which that event would not have occurred.” Dorman v. State Indus.,

Inc., 787 S.E.2d 132, 138–39 (Va. 2016) (quoting Kellermann v. McDonough, 684 S.E.2d

786, 793 (Va. 2009)). Here, for reasons I explained previously, plaintiffs have not alleged

facts that, if accepted as true, show a link between defendants’ advertisements and the

shooter’s independent decisions to commit his crime. Thus, if the court were to reach the

merits of plaintiffs’ claims, their allegations would fail under Rule 12(b)(6). 6

Likewise, proximate cause is an element of negligence under Virginia common law. Al- Saray v. Furr, 910 S.E.2d 320, 324 (Va. 2025). And to prevail on their negligence per se claim, plaintiffs must demonstrate that defendants’ alleged statutory violations were proximate causes of their injuries. Halterman v. Radisson Hotel Corp., 523 S.E.2d 823, 825 (Va. 2000). 6 After ruling on standing, the district court alternatively found that plaintiffs’ allegations would fail on the merits because their failure to plead proximate cause would mean their claims were barred by the Protection of Lawful Commerce in Arms Act (PLCAA), 15 U.S.C. § 7901 et seq. That statute prohibits a plaintiff from bringing “a civil action . . . against a manufacturer or seller of a qualified product . . . resulting from the criminal or unlawful misuse of a qualified product by the person or a third party.” 15 U.S.C. §§ 7902(a); 7903(5)(A). And it defines a “qualified product” as “a firearm . . . , or ammunition . . . , or a component part of a firearm or ammunition, that has been shipped or transported in interstate or foreign commerce.” Id. § 7903(4). Notably, there is an exception to the PLCAA’s general prohibition of liability known as the “predicate exception.” Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos, 605 U.S. 280, 286 (2025). “That exception applies to suits in which the defendant manufacturer or seller ‘knowingly violated a State or Federal statute applicable to the sale or marketing’ of firearms, and that ‘violation was a proximate cause of the harm for which relief is sought.’” Id. (quoting § 7903(5)(A)(iii)). The PLCAA also includes a separate exception that permits plaintiffs to bring suits for negligence per se. § 7903(5)(A)(ii). Thus, because proximate cause is relevant to these exceptions under the PLCAA, it is, by extension, relevant to whether the PLCAA immunizes defendants from liability. I take no position at this time on (Continued) 65 USCA4 Appeal: 24-1822 Doc: 153 Filed: 02/11/2026 Pg: 66 of 69

And if we step back from the emotion of a school shooting, this result should not

come as any surprise. If plaintiffs’ theory were viable, think of where it might lead. Imagine

a disturbed individual buys a car marketed as having a powerful engine that permits quick

acceleration. The individual then takes that vehicle and accelerates into a crowd, killing

and injuring many in its path. Would the vehicle manufacturer be liable to victims because

of ads stating that the car could go from 0 to 60 in seconds? Of course not. Nor have these

plaintiffs asserted a viable claim against these defendants.

Finally, before closing, I want to address the majority’s conclusion that it was

improper for the district court to reach the merits of plaintiffs’ claims after determining it

lacked jurisdiction. Relying primarily on the Supreme Court’s decisions in Steel Co. v.

Citizens for a Better Environment, 523 U.S. 83 (1998), and Ex parte McCardle, 74 U.S. (7

Wall.) 506 (1868), the majority reasons that, once the district court found that it lacked

Article III jurisdiction, it had to put down its pen. According to the majority, the district

court had no authority to alternatively consider whether plaintiffs’ allegations failed on the

merits. I do not read those cases to require such restraint.

Certainly, it is true that courts must have Article III jurisdiction to act. See Steel Co.,

523 U.S. at 94; McCardle, 74 U.S. (7 Wall.) at 514. It is also true that in Steel Co., the

whether the PLCAA applies to plaintiffs’ allegations against these defendants. But I note that, if it does apply, plaintiffs’ failure to plead proximate cause would also mean plaintiffs are not entitled to either of these exceptions to immunity under the PLCAA. See § 7903(5)(A)(ii), (iii). 66 USCA4 Appeal: 24-1822 Doc: 153 Filed: 02/11/2026 Pg: 67 of 69

Court rejected the doctrine of “hypothetical jurisdiction.” 523 U.S. at 94, 101. Under that

doctrine, a court faced with a tough jurisdictional question and an easy merits question

might assume the existence of jurisdiction and dismiss the case on the merits. Id. at 94. The

Supreme Court made clear courts cannot do that because jurisdiction “is always an

antecedent question.” Id. at 101. Thus, a court cannot base its ruling on the merits when

there is an open question about whether it has jurisdiction. Id. at 101–02.

Therefore, it is clear from Steel Co. that a federal court faced with jurisdictional

questions cannot assume hypothetical jurisdiction and skip over those issues straight to the

merits. See id. at 93–102. Or, as the majority puts it, “a federal court cannot assume that

Article III’s jurisdictional requirements are satisfied, simply to reach the merits of an

‘interesting . . . issue.’” Maj. Op. at 38 (quoting Palmer v. Liberty Univ., 72 F.4th 52, 68

n.8 (4th Cir. 2023)). But that is not what happened here. Rather than assuming jurisdiction,

the district court engaged in a thoughtful and thorough analysis of this complicated

question. Then, only after fully engaging with those issues, and determining that it lacked

jurisdiction, did the district court render the alternative holding that the same defects

making plaintiffs’ complaints insufficient to properly allege standing—namely, lack of

causation—also doomed their claims on the merits.

Courts, including ours, routinely issue alternative holdings. See, e.g., United States

v. Hunt, 123 F.4th 697, 702 (4th Cir. 2024) (“Second—and in the alternative—we conclude

that Section 922(g)(1) would pass constitutional muster even if we were unconstrained by

circuit precedent.”). And we routinely affirm district courts’ alternative holdings. See, e.g.,

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Foodbuy, LLC v. Gregory Packaging, Inc., 987 F.3d 102, 120 (4th Cir. 2021). Notably, we

have even affirmed a district court’s alternative holding after finding the district court erred

in dismissing an action for lack of subject-matter jurisdiction. See Food Town Stores, Inc.

v. E.E.O.C., 708 F.2d 920, 923–25 (4th Cir. 1983); see also Protopapas v. Travelers Cas.

& Sur. Co., 94 F.4th 351, 358–59 (4th Cir. 2024) (dismissing an appeal of a remand order

based on both the district court’s subject-matter-jurisdiction ruling and its alternative

procedural-defect ruling). Thus, I do not read Supreme Court precedent as restraining the

district court from issuing its alternative holding. 7

Making matters worse, after explaining its view that the district court should not

have issued its alternative holding, the majority, once again relying on Second Circuit

precedent, seems to conclude that we lack authority to review that alternative holding.

According to the majority, since the district court decided it lacked jurisdiction, it did not

have power to expound on those grounds. And even though the majority concludes the

court did, in fact, have jurisdiction, we still must turn a blind eye to the alternative reason

the district court said warranted dismissal. The majority’s reasoning can be summarized as

“a district court which erroneously concludes that it lacks jurisdiction does lack jurisdiction

even if it does not really lack jurisdiction.” Rutherford v. McDonough, 466 F.3d 970, 976

(11th Cir. 2006). This makes no sense to me. And it conflicts with those previous instances

in which we have reviewed alternative holdings district courts issued after first determining

7 Maybe one could argue that the district court’s alternative holding would be dicta. But that does not mean it was improper for the district court to include its alternative reasoning. 68 USCA4 Appeal: 24-1822 Doc: 153 Filed: 02/11/2026 Pg: 69 of 69

they lacked jurisdiction. See Food Town Stores, 708 F.2d at 923–25; Protopapas, 94 F.4th

at 358–59.

For these reasons, I see nothing wrong with the district court reaching an alternative

ground for dismissal after first addressing the jurisdictional issues. And, if I agreed with

the majority that the district court erred in its jurisdictional assessment, I would see nothing

wrong with affirming dismissal of most defendants on the basis of the district court’s

alternative holding. 8

My heart hurts when I consider the facts of this case. What makes a young man open

fire on a school? Isn’t there something we can do to stop these horrible and senseless acts

of gun violence? But neither the pain of recounting this attack nor the understandable

questions that it raises permit us to look away from or water down the law’s requirements

that plaintiffs plead facts that, if true, show their injuries are traceable to defendants’

conduct or that defendants proximately caused this horrific event. Stripped of conclusory

statements and speculation, plaintiffs did not do this. We should affirm the district court.

8 Vista Outdoors, Fiocchi of America, FAB Manufacturing and Fiocchi Munizioni all argued in their respective motions to dismiss below that the court lacked personal jurisdiction over them. Like subject-matter jurisdiction, personal jurisdiction must be addressed before the court rules on the merits. See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584–85 (1999). Thus, if I believed there was standing, I would remand for the district court to address the personal jurisdiction issues against these defendants and affirm dismissal of the allegations against all other defendants. 69