Lowy v. Daniel Defense, LLC - Product Liability Opinion

PUBLISHED UNITED STATES CO URT OF APPEALS FOR THE FOURTH C IRCUIT No. 24-1822 KAREN LOWY, indi vidually and as parent and next friend of N. T.; ANTONIO HARRI S, Plaintiff – Appellants, v. DANIEL DEFENSE, LLC; FAB DEFENSE, INC.; FAB MA NUFACTURING & IMPORT OF INDUS TRIAL EQUIPMENT LTD.; BRAVO CO MPANY USA, INC.; LOYAL 9 MANUFAC TURING, LLC; FOST ECH, INC.; HEARIN G PROTECTION, LLC; CENTURION ARM S, LLC; MAGPUL INDUSTRIES CORP.; FEDERAL CARTRI DGE COMPANY; VIST A OUTDOOR, INC.; FIOCCHI OF AMER ICA, INC.; FIOCCHI MUNIZIONI S.P.A.; SUREFIRE, LLC; TORKMAG, IN C., Defendants – Appel lees, and STARLINE, INC.; JO HN DOES 1-20, Defendants. ------------------------------ EVERYTOWN FOR GUN SAFETY SUPP ORT FUND; BRADY CENTER TO PREVENT GUN VIO LENCE; GIFFORDS LAW CENTER TO PREVENT GUN VIOLENCE; GLOBA L ACTION ON G UN VIOLENCE, Amici Supporting App ellants, and

2 NATIONAL SHOOT ING SPORTS FOUNDATION; NATIONAL RIFLE ASSOCIATION OF AMERICA; SAF ARI CLUB INTE RNATIONAL; SPORTSMEN’S ALLI ANCE FOUNDATIO N, Amici Supporting App ellees. Appeal from the Unit ed States District Co urt for the Eastern Dis trict of Virginia, at Alexandria. Claude M. Hilto n, S enior District Judge. (1:23- cv -01338-CMH- I DD; 1:23 - cv -01501-CMH-IDD) Argued: October 21, 2 025 Decided: February 1 1, 2026 Before KING, WYNN, and QUATTLEB AUM, Circuit Judge s. Reversed in part, vacated in part, and re manded by publis hed opinion. Judge Kin g wrote the opinion, in which J udge Wynn joined. Ju dge Quattlebaum wrote a dissenting opinion. ARGUED: Elizabeth Catherine Lockw ood, ALI & LOCK WOOD LLP, Washin gton, D.C., for Appellants. Brian Wesley Bar nes, COOPER & KIRK, PL LC, Washington, D.C., for Appellees. ON BRIEF: Kathry n M. Ali, Meghan Palmer, ALI & LOCKWOOD LL P, Washington, D.C.; H. Christopher Boehnin g, Jacobus J. Schutte, Jenifer N. Har tley, PAUL, WEISS, RIFKIND, WHART ON & GARRISON LLP, New York, New York, for Appellants. David H. Thompson, Brian W. Barnes, COOPE R & KIRK, PLLC, Washington, D.C., for Appellees Magpu l Industries Corp. and SureFire, LLC. V.R. Bohman, Las Vegas, Nevada, Cameron J. Schlagel, SNELL & WILMER, LLP, Cos ta Mesa, California, for Appellee Danie l Defense, LLC. Jeremy Adelson, Milwa ukee, Wisconsin, Alan W. N icgorski, HANSE N REYNOLDS LLC, Chic ago, Illinois; Cha rles E. James, Jr., Meredi th M. Haynes, Richmond, Virgin ia, Camden R. Webb, WILLI AMS MULLEN, Raleigh, N orth Carolina, for App ellee Bravo Company USA, Inc. Abra m J. Pafford, Jonathan Y. Ellis, MCG UIREWOODS LLP, Washin gton, D.C.; Harley J. Goldstein, Neha Khandhadia, GOLD STEIN & MCCLINTOCK, C hicago, Illinois, for Appellees FAB Manuf acturing & Import of Industrial Equi pment Ltd. And FAB Def ense, Inc. Alan D. Bart, REED SMITH LLP, Richmond, Virg inia; James B. Vogts, A ndrew A. Lothson, SWANSO N, MARTIN & BELL, LLP, Chicago, Illi nois, for Appell ees Vista Outdoor, Inc. and Federal Cartridge Comp any. Scott L. Braum, Timothy R. Rudd, BRAUM | RUDD, Da yton, Ohio, for Appell ees Loyal 9 Manufactu ring, LLC; FosTech, Inc.; and Centurion Arms, LLC. David C. Bowe n, Forrest M. Via, WILLCOX &

3 SAVAGE, P.C., Norfo lk, Virginia, for Appell ees Daniel Defense, L LC; Appellees Loyal 9 Manufacturing, LLC; FosTech, Inc.; and Centurion A rms, LLC. Nicholas P. Vari, Andrew N. Cook, K& L GATES, LLP, Pittsb urgh, Pennsylvania, for Appellees Fiocchi of America, Inc. and Fi occhi Munizioni S.p.A. Christ opher Renzulli, David A. Jones, RENZULLI LAW FI RM, LLP, Whi te Plains, New York, for Appellees Heari ng Protection, LLC and Torkmag, Inc. Keith J. Harrison, Washington, D.C., Neil Nand i, Chicago, Illinois, An ne Li, Ellen M. Halstead, CROWEL L & MORI NG LLP, New Yor k, New York, for A mici Everytown for Gun Sa fety Support Fund, Brady Center to Prevent Gun Violence, Giffords Law Center to Preve nt Gun Violence, and Global Action on Gun Violence. Lawrence G. Keane, Shelby Ba ird Smith, NATI ONAL SHOOTING SPORT S FOUNDATION, INC., Washington, D.C.; Andrew E. Lel ling, Boston, Massachuset ts, Noel J. Francisco, Anthony J. Dick, Harry S. Graver, Washington, D.C., Zachary A ustin, JONES DAY, Columb us, Ohio, for Amicus National Shooting Spo rts Foundation. Erin M. Erhardt, Joseph G.S. Greenlee, NA TIONAL RIFL E ASSOCIATI ON OF AMERICA – INSTITUTE FOR LEGISLATIVE A CTION, Fairfax, Vir ginia, for Amicus National Ri fle Association of America. Regina Lenno x, SAFARI CLUB INTERNA TIONAL, Washingto n, D.C., f or Amicus Safari Club International. Michael T. Jean, SPORTSMEN’S ALLI ANCE FOUNDATIO N, Columbus, Ohio, for Amicus Sportsmen’s Alliance Foundation.

4 KING, Circuit Judge: In what has becom e a far too common and tr agic story in our Coun try, plaintiffs Karen Lowy and Anto nio Harris were, amon g others, brutally m aimed and injured in a 2022 shooting that occ urred at the Edmund Burke School in Washington, D.C. M s. Lowy was doing nothing more than picking up her daughter f rom school. Mr. Harris had ju st started his afternoon shift as a sec urity guard at the school. From a st rategically -positioned “sniper’s lair” just acro ss the street and o verlooking the Burke School, the Shooter — a 23 - year -old man from Fair fax, Virginia — fired a pproximately 239 time s with an AR-15. In 2023, Lowy — individually an d as next friend of her mi nor child, N.T. — and Harris (collectively, th e “plaintiffs”) filed lawsuits in the Eastern D istrict of Virginia. By their respective 24- count complaints, the y seek to hold several U.S. and foreig n -based manufacturers of assau lt rifles, assault rifle accessories, and am munition accou ntable for violations of Virginia’ s False Advertising St atute and Consumer P rotection Act. 1 The plaintiffs also allege that certain defen dants committed negligence and negligence per se by violating the Nation al Firearms Act and the Virginia Uniform Machine Gun Act. 1 The relevan t named defendants in this appea l are Daniel Defense, LLC (“Daniel Defense”); FOSTECH, Inc. (“FosTecH”); Hearing Protection, LLC (“Griffin Armame nt”); Loyal 9 Manufacturi ng, LLC (“S OLGW”); Centurion Arms, LLC (“Centurion Arms”); Bravo Company, USA, Inc. (“BCM”); FAB D efense, Inc. (“FAB Defense”), a subsidiary of FAB Manufactu ring and Import of Industri al Equipment, Ltd. (“FAB Manufacturing”); Magpul Industries Corp. (“Magpu l”); SureFire, LLC (“SureFir e”); Torkmag, Inc. (“Torkmag”); Federa l Cartridge Company (“F ederal Premium Ammu nition”), a subsidia ry of Vista Outdoor, Inc.; and Fiocchi of Ameri ca, Inc. (“Fiocchi”), a subsidiary of Fiocchi Munizioni, S.p.A. Coll ectively, these entities are referred to herein a s “defendants.”

5 By its Memorandu m Opinion of July 2024, the district court summar ily dismissed the plaintiffs’ claims a gainst all defenda nts, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. See Lowy v. Daniel Def ense, LLC, No. 1:23- cv -01338 (E.D. Va. July 24, 2024), ECF No. 242 (the “Dismissal Ru ling”). 2 Therein, the court rul ed that the plaintiffs could not sho w a “ fairly traceable ” connection between their alleged injuries and the alleged mis conduct of the defendants, such that they did no t possess Article I II standing to sue. Notwithstanding the court’s threshold determination that it lacked subject -matter jurisdiction over the plaintiffs’ lawsuit s, the Dismissal Ruling also concluded — on th e merits pursuant to Rule 12(b)(6) — that the plaintiffs’ c laims are barr ed by the Protection of Lawful Commerce i n Arms Act of 200 5, 15 U.S.C. § 7901 e t seq. (the “PLCAA”). From the Dismissa l Ruling, the plai ntiffs have appealed. As explain ed herein, we are constrained to reje ct the district c our t’s erroneous Article III standing r uling. Put simply, the plaintiffs h ave alleged sufficient facts to demo nstrate that their injuries are “fairly traceable” to the defendants’ purport ed misconduct, such that the y posses s the essential Article III standing t o sue. See Lujan v. Defs. of Wildlife, 5 04 U.S. 555, 5 60 -61 (1992). Otherwise, in this situation, we are obliged to refrain f rom considering the remaining aspects of t he court’s Dismissal R uling — i.e., the court ’s impermissible and advisory rulings that the plaintiffs’ cla ims are barred by the PLCAA. Rather, w e 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 plea ding must be asserted in the re sponsive pleading if one is required. But a party may assert the following defenses by motion: (1) lack of subject matter jurisdicti on . . . . ” See Fed. R. C iv. P. 12(b)(1).

6 vacate, set aside, and h old for naught those as pects of the Dismissal Ruling that relate to the PLCAA, and reman d for such other and fur ther proceedings as may be appropriate. I. A. Friday, April 22, 20 22, was supposed to be a normal Spring day f or Karen Lo wy, her daughter, and also for Antoni o Harris. 3 That fateful day was anything but normal — Lowy and Harris were savagely and brutally shot outside the B urke School on Connecticut Avenue in the Northwe st area of our Natio n’s Capital. The Shoo ter had barricaded himself in a so - called “sniper’s lair” apartment just a cross the street and overlooking the Burke School, armed with an AR-15, various other w eapons, and additio nal equipment. More specifically, t he Shooter’s c urated arse nal included weapons that had been manufactured by defendants Daniel Defe nse, FosTecH, Griffin Armament, SOLGW, and Centurion Arms, alon g with an AR -15- sty le 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 t he plaintiffs, as we are obliged to do at this stage in the procee dings. See, e.g., Lovern v. E dwards, 190 F.3d 648, 654 (4th Cir. 199 9) (recognizing that, for purposes of Rule 12(b) (1), courts must “view[] the alleg ed facts [in t he 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 c omplaints are virtually identical, excepting backgro und information related to each plaintiff personally and the injuries they sustained during and following the shooting. The facts recite d herein are primarily drawn from the complaint in th e Lowy case. See Lowy v. Daniel Defense, Inc., No. 1:23- cv -0133 8 (E.D. Va. Oct. 1, 202 3), ECF No. 1 (the “Lowy Complaint”).

7 defendant B CM. 4 The Shooter’s arsenal also included: (1) a “buttstock” ma de by defendant FAB Defens e; (2) a high - capacity “drum magazi ne” and grip from defendant Magpul; (3) magazines from defend ants Daniel Defense, SureFire, and Torkma g; and (4) ammunition from d efendants Federal Prem ium Ammunition and F iocchi. 5 See Lowy Complaint ¶ 103. 4 A “M - Lok” system is a firearm rail in terface system tha t allows for direct accessory attachment o nto the “negative s pace” mounting p oints of a firearm, enabling the user (i.e., a shooter) to have a slimmer, lighter, and smoother experie nce. 5 A “buttstock” is the st ock of a firear m in the rear of the breec h mech anism, which provides structural sup port and a surface for the shooter to brace the firearm against a shoulder for stabilit y and recoil managemen t. A “drum magazine ” is a high - capacity firearm magazine that holds ammunition in a cylindrical, drum - like shape, allowing it to store significantly mor e rounds than a stan dard box magazine.

8 In the days and months leading to the April 2022 shooting, the Sho oter had travelled around Northern Virginia build ing up his stockpile of deadly weapons. Additionally, the Shooter had numerous weapons co mponents and accessories shi pped to his Virgin ia apartment. Once full y assembled, the Shooter transported the assembled arsenal to the apartment overlooking the Burke School fro m which his assaults occurred. Afte r the shooting spree was co mpleted, the Shooter d ied by suicide. Follo wing a searc h by law enforcement, the Shoot er’s body was found in the lair apartment overl ooking the school. Despite the Shooter fir ing 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 Metr opolitan Police Department, mir aculously survived the shooting incident. An unresp onsive and severely injure d Lowy was found by a Secret Service agent, in the street bes ide her vehicle. Lowy was immediately rushed to the trau ma center at Washington Hospital Center, where she wa s resusc itated twice. E mergency room phys icians were forced to cut Lowy’s che st open in the ir trauma bay, performing an emergen cy thoracotomy as a result of c ardiac arrest fro m the gunshots. The surgeons thereafter found multipl e metal fragments (i.e., bullet pie ces from defendant s Fiocchi and Federal Premium Am munition products) in Lo wy’s body. Upon seeing news coverage of the shooting, which included an i mage 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 Car e Unit at Washington Hospital Center.

9 In the aftermath of the Burke Sch ool sh ooting, Lowy attended c ountless medical appointments and ph ysical and occupa tional t herapy sessions. A s a consequence of the shooting, Low y has b een diagnosed with an anoxic brain injury, post - traumatic stress disorder, and major de pression. And she c ontinues to require med ical care. Meanwhile, Lowy’s daughter, N.T., suffers from severe emotional distress cau sed by the shooting. For his part, Harris arrived at the Burke Scho ol at approximately 3 o’clock in the afternoon on April 22 for his shift as a security guard. Within minut es of Harris’s arrival at his workplace, the Shooter ope ned fire from his “sniper’s lair” apartment. Up on hearing shots, Harris promptl y yelled for the students to go back in side the sc hool building. In the process, he was s hot in the abdomen. Ha rris sustained immens e blood loss, his jaw was shattered when he fell to the ground, and he lost his right kidney an d a large portion of his liver. Once the chaos subsided, Harris wa s also rushed to a loca l hospital where he underwent various eme rgency procedures. He spent a week in a medically induced coma, followed by t wo months in the hospital receivi ng intensive tre atment. To this day, Harris deals with adverse side effects from the sho oting and requires substan tial medical care. B. 1. On October 1, 2023, Ms. Low y and her da ughter, N.T., filed thi s lawsuit in th e Eastern District of Vir ginia. See Lowy v. Da niel Defense, Inc., No. 1:23- cv - 01338 (E.D. Va. Oct. 1, 2023) (the “Lowy case”). Soon t hereafter, on November 5, 2023, Mr. Harris filed a nearly - identical lawsuit in the same V irginia federal court. See Harris v. Daniel

10 Defense, Inc., No. 1:23- cv - 01501 (E.D. Va. N ov. 5, 2023) (th e “Harris case”). By order of December 19, 2023, th e district court consolid ated the Lowy case wit h the Harris case. In their respective 2 4-c ount federal c ourt com plaints, the plaintiffs each alleged that the defendants had contravened the Commonwealth of Virginia’s False Advertising S tatute and Consumer Protec tion Act. And the y alleged that certain defend ants had committed negligence (that is, de fendants Daniel Defen se, Magpul, FAB Manufacturing, Fiocchi Munizioni, Surefire, an d Torkmag) and neglig ence per se (i.e., defendants Daniel Defense, BCM, FosTec H, Griffin Arma ment, Centuri on Arms, and S OLGW), by viola ting the f ederal National Firear ms 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 an d entirely pre ventable result of a chain of e vents initiated by” the defendants. Se e Lowy Complaint ¶ 6. According to the plaintiffs: • “F or years, these manufacturers have d eceptively and unfairly marke ted their assault rifles, rifle accessories, and ammunition in ways designe d to appeal to the impulsive, risk-taking ten dencies of civilian adolesce nt and post- adolescent males — the same category of consumers [d]efen dants have watched, time aft er time, commit the type of mass sh ooting that unfolded again at the E dmund Burke School.” Id. ¶ 7. • “The [d] efendants e mploy sales and mar keting practices that crea te and feed a consumer base of young, civilian men who keep the money rolli ng in by purchasing n ot only the rifles, but all the deadly accessories that go with them — ammuni tion, optics, high - capacity magazi nes, silencers, and laser - aiming dev ices, among others. When these consu mers foreseeably use Defendants’ assa ult rifles, rifle accesso ries, and ammunition in mass s hootings, the families and communities affec ted suff er while [d] efend ants celebrate boo sts to their botto m lines. Defendants know that demand for their weap ons, weapon accessori es, and ammunition increase in the aftermat h of mass shootings. Rat her than

11 behave responsibly, [d] efendants stoke fear of gun regula tions and encourage stockpiling after shootings to incre ase that demand. ” Id. ¶ 8. • “ The marketing and sales prac tices of [d] ef endants and other entities within the gun ind ustry — includi ng their practices in the Stat e of Virginia — are the beginning and pivotal l inks in a foreseeable and predictable chain of e vents resu lting in many mass shootings in America each year. With full knowledge and appr eciation of their role in facilitating these mass shootings, [d] efen dants continue to intentiona lly and recklessly adverti se, market, pro mote, and sell a warrior mentality that a certain subset of youths, like this Sho oter who live - strea med his crime, fantasize will make the m legendary. Defendants have not taken even the simplest steps to preve nt or disco urage young, im pulsive would - be mass shooters f rom acquiring their weapons, weapo n accessories, and ammunition and usi ng them to inflict harm, such as implementin g age gates on their social media accounts to align with any state a nd local regu lations governing the age at which a pers on could purchase or use the relevant products, war ning consumers about the dangers of assault rifl es, or even avoiding a dvertising illegal modificatio ns to and uses of weapons. Defendants’ practices a re negligent and unlaw ful.” Id. ¶ 9. • “A fter years of conditioning by perv erse and pervasive marketing by [d] efendants and the gun industry at large, w ould - be mass murderers — like the Shoote r — naturally look to obtain the product s associated with the idolized self - sufficient warrior mentality featured by these promotions. ” Id. ¶ 10 (citation mo dified). • “ The Shooter purchas ed a FosTecH Tec h - 15 rear, manufactured by Defendant FOSTECH, Inc. from a firearms de aler in Fairfax, Virginia on October 2, 2021. He went to a different dealer, in Alexandria, Virginia, on January 16, 2 022, to get Defendant H earing Protection, LLC’ s MK1 Griffin Armament low er.” Id. ¶ 14. • “ While visiting shoo ting ranges to practice using hi s guns be fore the Shooting, the Shooter made additional weapo ns purchases: he boug ht a lower receiver made by Defendant Loyal 9 Manufacturing, LLC on November 6, 2021 [,] from Silver Eagle Group i n Loudon Co unty, Virginia. And he bought Defen dant Centu rion Arms, LLC’s F - 15 receiver on December 16, 2021 [,] from Elite Shooting Sports in Prince William County, Virgi nia.” Id. ¶ 15 (citation modified).

12 • “ The Shooter also bought [d]efendan t[s] Dan iel Defense, LLC’s DDM4 V7 rifle, the exact same AR - 15 rifle that was used by another vio lent young man just over a month later to conduc t a mass shootin g at Robb Elementary in Uvalde, Texas — and Daniel Defense’s DD magazine, a high- capacity, 32 - roun d magazine that is designed for fast and s ecure reloads. ” Id. ¶ 16 (citat ion modified). • Each [d] efendant enabled the Shoo ter to carry out the Shooting. They knowingly sought to place their weapons, accessories, and ammunition in the hands of disturbed young men by tar geting and exploiting the ri sk - seeking . . . desires of these consumers. The S hooter and other would - be mass shooters are high ly susceptible to disturbing prom otional messa ges, which foreseeably fee d the desires of these young men to act out their militaristic fantasies on a civilian population.” Id. ¶ 43. Furthermore, the complaints alleged tha t the defendants engaged in intentional, unfair, and deceptive conduct in market ing their products to ci vilians — including marketing to “teens an d young adults” — “[d] espite knowing that mass shootings have been repeatedly perpetrated by yo ung men armed with assault rifles [.]” See Lowy Complaint ¶ 53 (furthe r alleging that “[d] efendants specifica lly and intentionally market their weapons, weapon accessories, and ammu nition in ways that app eal 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 t he sale of their weapons, weapon acces sories, and ammunition t o 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 shoul d not promote and en courage violence. ”). According to the comp laints, “[t]hese advertis ements are especially salient for — and are targeted to attract — troubled young men att racted to violent co mbat, increasing t he risk

13 that these young men will use [d] efendants’ deadly weapons, weapon accessories, an d ammunition to perpetra te mass violence.” I d. ¶ 55 (citation modif ied). The complai nts also identified various specifi c advertisements by t he defendants aimed at attracting civi lian consumers to enga ge in violent combat. See Lowy Complain t ¶ 57- 93 (factual al legations identifying defen dants’ adv ertisements). Addit ionally, the complaints averred that some of the defendan ts’ advertisements “pro mote activity that is or may be illegal.” Id. ¶ 94 (“Despite some content mode ration on social media site s, [d] efendants Daniel D efense, BCM, SOLG W, and others have been undeterred fr om advertising their produ cts in connection with activity that is or may be illegal in some or all jurisdictions — without any regard to whe re the consumer is viewing the ad from. This content, too, a ppeals to the thrill - seek ing impulses of young men like the Sho oter. In fact, the Shooter used [d] ef endants’ weapons just a s they encouraged him to in their mar keting — targeting Ms. Lowy ’s car with a scope, an d riddling it with as many bullet holes as he could. ”). That is, “[d]efendants kne w or should have know n of the risks of their deceptive marketing and related conduct, as the gr owing numbers of ma ss shootings involvi ng assault rifles each year repeatedly and consisten tly show. ” Id. ¶ 104; id. ¶ 106 (“ Defendants’ deceptive marketing ta rgets and exploits this demographic by promo ting advertising that is specifically appealing to — and encouraging of — this group’s pr opensities for violent behavior. The Shooter who terrorized the E dmund Burke Scho ol was 23 years old.”). On that score, although not exhaustive of the defendants’ alleged advertisements and marketing, the following are representativ e sampl es dr awn from the Low y Complaint:

14

15

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

17 The compla ints also provided the district court with de tailed fa ctual allegations related to the Shooter. That included, inter alia, specific allegations re garding the Shooter’s background and motivations for carrying out the April 2022 shooting at the Burke School: • “Upon information an d belief, the United States Coast Guard dischar ged the Shooter because it learned of attributes that made him unfit for military service.” Se e Lowy Complaint ¶ 107. • “ In the months leadi ng up to the Shooting, the Shooter purchased m ore than 15 firearms or firearm accessories and amassed thousand s of rounds of ammunition. At just his D. C. apartment cri me scene, the Shooter had approximately 1,000 ro unds of ammunition.” Id. ¶ 108. • “ The Shooter used [his] Wikipedia account id entifying him as ‘ an AR -15 aficionado’ to update the page for the Ed mund Burke School a s 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 mo dified). • “ Just as [d] efendant Starline Brass to ld him through its advertising, the Shooter’s stockpile of weapons, weapon acc essories, and ammunit ion had made him feel pow erful — powerful enou gh to livestream his cri me and taunt police under his own name.” Id. ¶ 119 (citation modifie d). • “ Though he owned numerous other we apons, weapon accessor ies, and boxes of ammunition, [d] efendants’ produ cts were his weapons, weapon accessories, and ammunition of choice. U pon information and belief, the Shooter made these choices becau se he perceived the se weapons, accessories, and amm unition to be a superi or fit for carrying ou t his mission of causing the most destruction p ossible.” Id. ¶ 120. • “ Upon information an d belief, the Shooter assembled [d]efenda nts’ products to create customized weapons of war for use in the Shoot ing. The Shooter’s online presence suggests that he did so after searching online for how-to instr uctions and instruction al videos.” Id. ¶ 12 1.

18 • “ The Shooter also purc hased various weapons, weapon accessor ies, and ammunition online from a number of ret ailers, exposing [him] to [d]efendants’ products and advertisements[.]” Id. ¶ 122. • “ Upon information and belief, the Shooter was exposed to and i nfluenced by [d]efendants’ decept ive and unfair marketin g acts and practices wh ile researching and planni ng the Shooting.” Id. ¶ 123. • “ Defendants’ deceptive and unfair marketing a cts and practices incre ased the level of violence of the Edmund Burke S hooting by putting in the Shooter’s hands deadl y weapons, accessorie s, and ammunition tha t he thought were together designed for mass deat h.” Id. ¶ 124. 2. In late 2023, the U.S. - based defendant s each moved to dismis s the Lowy case on various grounds, primarily maintaini ng that Ms. Lowy and her daughter, N.T., did not possess constitutionall y mandated Article III standing to sue in federal court. Ms. Low y and N.T. thereupon moved for leave to file an omnibus opposition to t he defendants’ motions in the Lowy case, which the distri ct court denied in favor of defendant-by- defendant dismiss al briefing. On January 11, 2024, ho wever, th e court granted the parti es’ joint motion — excepting defendants FAB Manufacturin g and Fiocchi Munizioni — requesting that the dis missal briefing in the L owy also apply to the Harris case. 6 6 We observe that defendant FAB Ma nufacturing was deemed b y the Clerk of Court to be in default in the Lowy case on Fe bruary 21, 2024, and in the Harris case on Ma rch 25, 2024. By order of April 12, 2024, a magistrate j udge granted FAB Manufactur ing’s request to set aside the default in the Lowy case. And by separate order of May 13, 2024, the magistrate judge granted FAB Manufact uring’s request to set asi de the default in the Harris case. On appeal, the plaintiffs do not c hallenge those default r elief rulings.

19 After initiall y sched uling a hearing on the defendants’ motions t o dismiss for January 19, 2024, the district court cancelle d that proceeding two days beforehand. Six months later, on July 2 4, 2024, the court dis missed the plaintiffs’ respective claims in the complaints against all defendants on the papers. By its 11 - page Dism issal Ruling, the court initially conclu ded that, for purposes of Article III standing to sue in federal court, the plaintiffs coul d only sa tisfy the “causation requirement” of Artic le I II “ 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 fol lows: [A] third party bridges the allege d causal chain betwee n defendants ’ conduct and plaintiffs ’ injuries. At the beginning of the alleged causal chain, defendants marketed t heir weapons and weapons acc essories to po tential consumers in Virginia. At the end, Shooter inj ured plaintiffs by firing at an elementary [sic] school. This chain reli es on Shooter, a third party not before the Court, to link defen dants to plaintiffs ’ injuries. Accordingly, to est ablish standing against defen dants, plaintiffs must allege that defend ants ’ conduct had a determinative or coercive effect upon S hooter’s actions. Id. 7 In this light, the di strict court r easoned that “[m]uch of plaintiffs’ complaint [s] concern[] defe ndants’ marketing to Virginia residents gen erally and ‘ young men l ike the Shooter ’ ... but few paragraphs allege the effect of defendants’ marketing on Shoot er specifically. ” See Dismissal Rul ing 4. According to the Dismissal Ruling, however, th e complaints “fail[ed]” t o satisfy Article III ’s causation req uirement for two reas ons: 7 The Dismissa l Ruling repeatedly refers to the Burke Scho ol as an “elementary school.” See, e.g., Dis missal Ruling 4, 6. We observe, however, that the Burke School is actually an independen t college preparatory sc hool for grades 6 th rough 12.

20 First, concerning Shooter ’s reliance on defendants ’ m arketing, plaintiffs’ a llegations are conclus ory. Gen erally, a plaintiff may plead “based on ‘informatio n and belief if suc h plaintiff is in a position of uncertainty because the necessary evide nce is controlled by the def endant.” Ridenour v. Multi - Color Corp., 147 F. S upp. 3d 452, 456 (E.D. Va. 2015). But, like all other allegations, allega tions pled upon infor mation and belief “may not be who lly co nclusory.” Kashda n v. George Mason Univ., 7 0 F.4th 69 4, 701 (4th Cir. 2023). If “not s upported by any we ll - pled facts that exist independent of [plain tiffs ’ ] legal conclusio ns,” allegations pled upon information and belief fail. Id. Such is the case here: no factual allegations in the complaint su pport the c onclusion that Shooter relied on def endants ’ marketing. The com plaint does not sugges t defendants control suc h evidence of Shooter ’ s reliance and does no more than speculate that Shooter, lik e other young men in Virgi nia, observed defen dants ’ advertisements. Without more support, these pleadin gs fail to raise plainti ffs ’ right to relief abo ve the speculative level and c an proceed no further. Lokhova v. Halper, 995 F.3d 134, 148 (4th Cir. 2021) (“It is well established that speculative concl usions are insufficient to survi ve a motion to dismiss. ”). Second, viewed most optimistically, pla intiffs allege that Sho oter relied on defendants ’ advertisements when choosing to purcha se defendants ’ products. The Court c annot transform that allegation into an allegation that defendants’ marketing had a “determinative or coercive effect” on Shooters ’ decision to shoot at plaintiffs. While the bo unds of Article III ’s causation requirement may at ti mes seem opaque, “[c] ausation makes its mos t useful contribution to standin g analysis in circumsta nces that show a clear break in the causal chain.” 1 3A Charles Alan Wr ight & Arthur R. Mil ler, Federal Prac tice and Procedure § 3531.5 (3d ed. 2024). Here, the actions of a third party injured plaintiffs. As explained above, completing the causa l chain requires plaintiffs to allege defendants ’ co nduct had a determin ative or coercive effect on that third party ’ s inj urious actions. This co mplaint, however, fails to make that allega tion. M aybe defenda nts’ advertisin g coerced Shooter to purchase defendants’ products (and that alle gation, as discussed above, is speculative), but abs ent is any allegation tha t defen dants’ advertising coerced Shooter to attack the ele mentary [sic] sch ool. Without that allegation, plaintiff s ’ alleged causal chain is incomp lete, and [the y] lack standing against these defendants. Id. at 5-6.

21 Notwithstanding t he Dismissal Ruling’ s threshold jurisdictional determinations — i.e., that the plaintiffs lacked Article III standi ng to sue in federal court on account of the fact that the complaint s failed to establish th at the plaintiffs’ grues ome and horrendous injuries were “fairly traceable” to the defenda nts’ alleged misconduct — the district court then also ruled that the PLCA A served as a b ar to each of the claims alleged against the defendants. On that basis, the court d ismiss ed each of the plaintiffs’ c laims on the ir merits against all defendants, pursuant to Rule 1 2(b)(6) of the Federal R ules of Civil Procedure. 8 * * * On August 22, 2024, the plaintiffs time ly noticed this appeal f rom the Dismissal Ruling. And we posse ss final decision jurisdi ction pursuant to 28 U. S.C. § 1291. 9 8 We also obser ve that, on its own initiative, the Dis missal Ruling surprisi ngly dismissed three defendants on PLCAA grounds, even though they had not mo ve d for such relief. Otherwise, in the Harris case, the court dismissed the pre viously defaulted defendant — FAB Manufacturing — withou t that defendant even seeking su ch relief. 9 The defendants advanc e a rather fleetin g and undeveloped argument t hat this Court lacks appellate j urisdiction under § 1291, a sserting that t he complaints each named unknown “John Doe” d efendants. See Br. of Appellees 2. A s the defendants ackno wledge in their responsive sub mission s, however, the plaintiffs have agreed to dismiss the Doe defendants and have not otherwise appealed t hose dismissals. Acco rdingly, as observed above, we possess jurisdiction in this ap peal, pursuant to 28 U. S.C. § 1291. S ee, e.g., Koehler v. Dodwell, 152 F.3d 304, 308 (4th C ir. 1998) (recognizing well - settled rule that “a [dispensable] party. . . whose presence deprives the court of jurisdiction may b e dropped or severed fr om the action” to p reserve jurisdiction); Caperton v. Beatrice Pocahontas Coal Co., 585 F.2d 683, 691-92 (4th Cir. 1978) (sa me).

22 II. “ We review de novo a district court ’s dismiss al of a complaint for w ant of Article III standing to s ue — and thus for lack of subject matte r jurisdiction — under Fe deral Rule of Civil Procedure 12(b)(1). ” See Ali v. Hogan, 26 F. 4th 587, 595 (4th Cir. 2022). To th at end, when — as i s the case here — a defen dant makes a facial challe nge to subject matter jurisdiction, “the plai ntiff, in effect, is afforded the s ame procedural pr otection as he would receive under a R ule 12(b)(6) considera tion.” See Adams v. B ain, 697 F.2 d 1213, 1219 (4th Cir. 1982). Under that standard, “[t]o sur vive a motion to dismiss, a complaint mu st contain sufficient factual matter, accepted as t rue, to state a claim to relief that is plausible on its face.” See Ashcr oft v. Iqbal, 556 U.S. 6 62, 678 (2009) (citatio n modified). Importantly, as our Court has recognized, pl aintiff s are not required “t o prove [their] case in the complaint. ” See Robertson v. Sea Pines Real Est. Cos., Inc., 679 F.3d 278, 291 (4th Cir. 2012) (recogn izing that “[t]he requirement of nonc onclusory factual detail a t the pleading stage is tempered by the reco gnition that a plaintiff may only have so much information at [her] disposal at the outse t”). Furthermore, Ru le 12(b)(6) “does not countenance . . . dismissal based on a judge’s d isbelief of a complaint’s factual allegatio ns.” See Neitzke v. Williams, 490 U.S. 319, 327 (1989). Indeed, it is “error” for a distri ct judge to give “a serious clai m the back of its hand” becaus e it does not believe the p laintiff’s allegations. See C olon Health Ctr s. of Am., LLC v. Hazel, 733 F.3d 535, 545 (4th Cir. 2013). Rath er, the fed eral courts are obliged to “accept as tru e all well - pleaded allegation s

23 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. 19 93). III. The first issue we a ddress is whether the plaintiffs po ssess Article I II standing to sue in federal court. More specifical ly, that question is whether the plaintiffs’ factua l allegations establish that their gruesome injuries from the alleged s hootings are “fairly traceable” to the defendants’ purpo rted misconduct. See L ujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). By its Dismissal Ruling, the dis trict court concluded that t he plaintiffs lack Article III standi ng to sue. That ruling is erroneous, h owever, and warrants a reversal. Put sim ply, the plaintiffs posse ss Article III standing to sue in federal court. Furthermore, in these ci rcumstances, we are ob liged to re frain from considering a ny other aspec ts of the Dismissal Ruling — that is, the advisory rulin g s that the plaintiffs’ claims against all defen dants are barre d on the merits by the PLCAA. Instead, we vacate, set aside, and hold f or naught the advi sory aspects of the Dismissal Ruling pertaining to the PLCAA. And w e remand for such other and further proceedi ngs as may be appropriate. A. 1. “ Article III of the Constitution req uires a litigant to possess sta nding to sue in order for a lawsuit to proceed in federal court. ” Se e Ali v. Hogan, 26 F.4th 587, 595 (4th Cir. 2022); Be nham v. City of Char lotte, 635 F.3 d 129, 134 (4th Cir. 2011) (explaining that

24 “[s]tanding to sue is one aspect of the mandate that an action mus t present a ‘case or controversy’ under Arti cle III”). Standing to sue has been described b y the Supreme Court as the “irreducible constitutiona l minimum” that must be sat isfied in all federal cases. See Lujan, 504 U.S. at 560. As the Court emp hasized r ecently, “[b] y limiting who can sue, the standing requireme nt implements ‘the Fra mers’ concept of the pr oper — and properly limited — role of the courts in a d emocratic society. ” See Diamo nd Alt. Energy, LLC v. Env’t Prot. Agency, 6 06 U.S. 100, 111 (2025) (citation modified). Indeed, “[s] tanding doctrine also tends to a ssure that the leg al questions p resented to the court will be resolved, not in the rarified atmosphere of a debating society, but in a con crete factual context conducive to a realistic appreciation of the c onsequences of judicia l action. ” Id. To that end, in its 1992 Lujan decis ion, the Supre me Court outli ned the three requirements that a plai ntiff must establish in o rder to possess Article III standing: (1) “ an injury in fact” that is “ concrete and particu larized”; (2) “ a causal connection between t he injury and the conduct complained of, ” suc h that the injury is “ fairly traceable to the challenged action of the defendant”; and (3) a likelihood that the injur y will be “redressed by a favorable decisio n. ” See 504 U.S. at 560-61 (citati on modified). Ultimately, it is t he plaintiff who bea rs the burden of establi shing Article III standing to s ue in federal court “at the time he filed suit.” See Carney v. Adams, 5 92 U.S. 53, 59 (2020); Friends of the Earth, Inc. v. Laidlaw Env’t S ervs. (TOC), Inc., 528 U.S. 167, 191 (2000). Of especial relevance here, “[a]t the pleading stage, general factual allegations of injury resulting from t he defendant ’ s conduct may suffice, for on a motion to dismiss we

25 presume that general allegations embr ace those specific facts that are necessary to support the claim.” See Lujan, 504 U.S. at 561 (cita tion modified). In tha t regard, although a plaintiff is required to allege “nonconclusory factual details” in the c omplaint, our Court has recognized that this require ment is “temp ered by the recognit ion that a plain tiff 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., 67 9 F.3d 278, 291 (4th Ci r. 2012). Moreover, a federal c ourt is obliged to anal yze the issue of Articl e III standing “differently depending on the stage of the litigation at which the challenge is brought and the substance of the def endant’s arguments.” S ee Overb e y v. Mayor of Balt., 930 F.3d 215, 227 (4th Cir. 2019); Wikimedia Found. v. Nat’l Sec. A gency, 857 F.3 d 193, 212 (4th C ir. 2017). At the motion to dismiss stage, the S upreme Court has cha r acterized the Lujan standing requirement s as being “relatively modest.” See Bennett v. Spear, 520 U.S. 154, 171 (1997). And that is particularly so as it rela tes to traceability. See DiCocco v. Garland, 52 F.4th 588, 592 (4th Cir. 2022) (recog nizing that “[a]t the motion - to - dismiss stage, [the traceability] burden is relatively modest. . . an d lower than the ca usation showing re quired to prevail in a tort suit ”); Lexmark I nt ’ l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 128 n.4 (2014) (“Proximate causation is n ot a requirement of Article III standin g[.]”). 2. Against this backdrop of constitutional stan ding principles, the p arties do not dispute the proposition that the plaintiffs satisfy both the firs t and the third of the Lujan elements. And in that regard, the district c ourt did not even address those two elements in

26 its Dismissal Ruli ng. Based upon our independent review of th e respective factual allegations in the co mplaints, however, we a re entirely satisfied t hat both of th ose Lujan elements are establis hed here. See, e. g., Summers v. Earth Island Inst., 555 U. S. 488, 499 (2009) (recognizing t hat federal court s have “an independ ent obligation to assure that [Article III] standing exists, regardless of whether it is challenged by any of the parties”). Put succinctly, our foc us in this situation is pr operly on the second Lujan element: whether the allegations in the complaints have establi shed “a causal connection between the injury and the conduct complained of, ” su ch that the injury is “ fairly traceable ” to the defendant’s actions. See 504 U.S. at 560. Again, the plaintiffs’ burd en of proof as to that Lujan element is “relatively modest” at the “motion -to- dismis s stage.” See Di Cocco, 52 F.4th at 592; Bennett, 520 U.S. at 171. The Dismissal Ruling is that the complaints faile d to satisfy that Lujan el ement, such that the plaintiffs lack Article III standing to sue in federal court. As explained in furt her detail below, w e are constrained to disagre e. a. In assessing the second Lujan element, t he district court anch ored its f aulty analysis on the question of whether the “ plai ntiffs. . . allege[d] tha t defendants’ conduct had a determinative or coercive effect upon S hooter’s actions. ” See Di smissal Ruling 4. In other words, the court i ncorrectly believed that the plaintiffs co uld satisfy the second Lujan element (i.e., Article I II causation) only if t hey had demonstrate d that the defendants’ conduct had a “determi native or coercive effe ct” on the actions of the Shooter. Id.

27 Put simply, the Supre me Court has disavow ed the more stringent and exclusiv e approach espoused b y the district c ourt. To be sure, although the Cou rt has cautioned that standing “ is ordina rily substantially more difficult to esta blish” in a case “where a causal relation between injury and challenged acti on depends upon the decisi on of an independent third party,” it is not i mpossible to establish. See Calif ornia v. T exas, 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 S hooter] .. . likely react[e d] in predictable ways,” then the second Lujan ele ment — i.e., t he caus ation requirement — wil l be satisfied. Id.; see also Dep’t of Co m. v. New York, 588 U.S. 752, 768 (2019) (ruling that Article III causation is satisfied where plaintiffs’ theory relied on “p redictable effect” of defendants’ actio ns on third parties). In this light, the second Lujan element will be satisfied if the plaintiffs allege that the defendants’ actions had a “predict able effect . . . on the decisions of third partie s,” see Dep’t of Com., 588 U.S. at 768, or when t he “injury [was] produ ced by determinative or coercive effect upon the action of some one else,” see Bennett, 5 20 U.S. at 169. The foregoing makes s ense in light of the S upreme Court’s reco gnition that Article III standing “requires no more than de facto ca usality,” s ee Dep’t of Com., 588 U.S. at 768 (quoting Block v. Mees e, 793 F.2d 1303, 1309 (D.C. Cir. 1986) (Scali a, J.)), along with our Court’s recognition that the Article III causa tion burden is “relativel y modest,” especially at the “motion -to- dism iss stage,” see DiCocco, 52 F.4th at 592. To that end, although a “highly attenuated chain of possibil ities” 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

28 connection between th e injury and the con duct complained of,” see Dep ’t of Educ. v. Brown, 600 U.S. 551, 5 61 (2023), the second Lujan element has bee n satisfied. Along these lines, we also disagree with the district court and the d efendants that the Supreme Court’s 1997 decision in Bennet t announced an excl usive test for ascertaining whether the second Luj an element has bee n satisfied. Put simp ly, if Bennett had a nnounced an exclusive test, then the Depa rtment of Com merce decision in 2019 modified it. See 588 U.S. at 768 (applying “predictable effect” tes t to ascertain whether plaintiff had satisfied second Luj an elem ent). 10 Otherwise, as discus sed infra, we are satisf ied that, if Bennett announced an exclusi ve test for cases such as this, th e allegations of the complaints show that the defendants’ act ions had a “determinati ve or coercive effect” on the Shoo ter. 10 The defendant s’ argument tha t the Court’s Department of Comme rce decision limits application of the “predictable effe cts” test on ly to pre - enfor cement challenges is unpersuasive and underdeveloped. See Br. of Appellee s 15- 16. Inde ed, at least one of our sister circuits — the Second Circuit — has recently concluded that an applicatio n of the “determinative or coer cive effect” standard “ overstates the sho wing that is required” for Article III standing, which can otherwise be based on “predictabl e effect[s].” See Ateres Bais Yaakov Acad. of Rockland v. To wn of Clarkstown, 88 F.4th 34 4, 352 (2d Cir. 202 3) (relying on 2019 Dep artment of Commerce decision and conclu ding that Article III causation r equirement is satisfied w hen plaintiff alleges that defendant’s conduct and actions had “[a] predict able effect. .. on the de cisions of third par ties” (citation modifie d)). Furthermore, to the extent th e defendants — alon g with our fi ne dissenting colleague Judge Quattl ebaum, see post at 52-54 — seek to rely on our recent 2025 decisio n in Sheppheard v. Morri sey, 143 F.4th 232 (4th Cir. 2025), that r uling does not mention — let alone address — the Supreme Court’ s 2019 decision in Dep artment of Commerce. Nor could Sheppheard “read in” a re quirement that Article III standing is “ only ” established “if the defendant’s conduc t had a determinative or coercive effect upon th e action of someone else.” Id. at 243 (quoti ng Bennett, 520 U.S. at 169) (emphas is added). To be sure, although Bennett recognized that an “injury pro duced by determinative o r coercive effect upon t he action of someone else” is sufficient to satisfy Article III’s causation requi rement, that decision did not conclu de that is the exclusive test. See 520 U.S. at 1 69.

29 b. In light of the forego ing, we agree wi th the plaintiffs that the co mplaints have demonstrated that the defendants’ actions were “at least in part responsible fo r” causing the plaintiffs’ injuries, and that the def endants’ conduct had a “predictable effect” on the actions of the Sho oter. See Dep’t of Com., 588 U.S. at 768; accor d Ateres Bais Yaak ov Acad. of Rockland v. T own of Clarkstown, 88 F.4th 344, 352 (2d Cir. 2023) (c oncluding that plaintiff possessed Article III standing to sue where defendants’ actions to frustr ate plaintiff’s acquisition of property had “[a] pr edictable effect on the decisions of relevant third partie s”). We also agree t hat — on the basis of the allegations in the complaints — the defendants’ alleged misconduct had a “ determinative or c oercive” effect on the Shooter. See Bennett, 520 U.S. a t 169. In either situatio n, the second Lujan ele ment is satisfied. i. First, the plaintiffs have sufficiently al leged that the defendants’ conduct had a “predictable effect” on the actions of the Shooter, suc h that the defe ndants are at least in part responsible for causing the pla intiffs’ injuries. Indeed, the complaints specify that the defendants deliberately designed their a dvertisements to appeal to impulsive, risk -seeking young men; see Lowy Compl aint ¶ 55 (alleging that defenda nts’ “advertisements are especially salient for — and are targeted to attra ct — troubled young me n attracted to violent combat, increasing the risk that these young men will use [d] e fendants’ deadly weapo ns, weapon accessorie s, and ammunition to perpetrate mas s violence ”); that th e defendants’ advertisements promot e the use of military - style weapons (i.e., A R - 15s) to civilians w ho

30 have no lawful reaso n to use them as advertised, id. ¶¶ 57- 94; that the defend ants “knew or should have k nown” that young men s uch as the Shooter regularly co mmit mass shootings using weap ons like the on es they a dvertise, id. ¶ 104; and that the defen dants knew or should have known that mar keting their produc ts in such a manner would have a n impact on the Shooter’s decision to amass and use the defendants’ weapons and acces sories to heinously injure the plaintiffs, id. ¶¶ 105, 1 06. At the Rule 12(b)(1) stage — whe re the plaintiffs’ burden is “r elatively modest,” se e DiCocco, 52 F.4th at 592 — these detailed and thorough factual a llegations wer e and are sufficient to sho w “a causal connection between the injury and the conduct complaine d of,” see Brown, 6 00 U.S. at 561. For their part, the defendants resist this straightforward conc lusion, and they do so primarily by m aintaining that they were not “the ones who op ened fire on [the] school.” See Br. of Appellee s 11. As the plaintiffs argue, however, that reas oning “fundamentally misstates the relevant i nquiry.” See Reply Br. of Appellants 4. To be sure, Article III standing “does not re quire the [defendants’] challenged acti on to be the sole or even immediate cause of the injury.” See Sierra Club v. U.S. Dep’t of the Interi or, 899 F.3d 260, 284 (4th Cir. 201 8). Instead, so long as the defendant s’ conduct had a “ predic table effect” on the Shooter’s conduct, the second Lu jan eleme nt is satisfied. See Dep’t of Com., 588 U.S. at 768; FDA v. All. for Hippocratic Med., 602 U.S. 367, 38 3-85 (2024). Our conclusion in that respect finds solid su pport in the authorities rel ied on by the defendants. See Br. of Appellees 16. In Block v. Meese, then - Circuit J udge Scalia cogently explained that “[i]t is impossible to maintain, of course, that there i s no standing to s ue

31 regarding action of a defendant which har ms the plaintiff only th rough the reaction of thir d persons. ” See 793 F.2d 1303, 1309 (D.C. Cir. 1986). Rather, as B lock clarif ied, if the plaintiff alleges suffici ent facts demonstrating the effect of a defenda nt’s actions on a third party (whose actions in turn harme d the plai ntiff), the plaintiff has “adequately alleged” Article III standing, “w hich requires no more t han de facto causality.” Id. ii. (a) Next, we turn to w hether the plaintiffs suffi ciently alleged that th e defendants’ actions had a “determinative or coerc ive effect” on the Sho oter. On that score, the distric t court chided the plaintiffs for off ering “no factual allegations. .. [to] support the conclusion that Shooter relied on defendants’ marketing,” explaining that their allegations “concerning [the S hoot er’s] reliance on defen dants ’ marketing. . . a re conclusory.” See Dismissal Ruling 5. From there, the co urt reasoned that “the actions o f a third party injured plaintiffs,” and that “c ompleting the caus al chain requires plaint iffs to allege defendants ’ conduct had a determin ative or coercive effect on that thir d party’s in jurious actions.” Id. at 6. According t o the Dismissal Ruling, however, th e complaints failed to allege “ that defendants’ advertising coerced Shooter to atta ck the elementary [sic] school. ” Id. Simply put, we disagree. As our Court has exp lained, the “determinative or coercive effect” standard is satis fied when the defendant publishe s information which leads a t hird party to conclude that it should proceed i n a manner that injures a plain tiff. See Lansdowne on the Potomac Homeowners Ass’n, Inc. v. OpenBand at Lansdowne, LLC, 713 F.3d 187,

32 197 (4th Cir. 2013). In Lansdowne, Judge Wilkinson carefully explained that the plaintiff, a homeowner’s associ ation, had “ established the second ele ment of the Article III standing inquiry ” by showing that the defendan t’s conduct and actions caus ed third -parties — i.e., cable providers Verizo n and Comcast — to refrain from pro viding any cable services to the plaintiff. Id. Our distinguished colleague t hus conclud ed that th e Lansdowne plainti ff had suffere d an injury- in - fact that was “ produced by the determ inative or coercive effect” of the defendant’s cond uct “upon the action of someone else.” Id. (cit ation modified). Much like the allegations in the Lansdowne case, the complai nts in these proceedings have sufficiently alleged that the defendants’ marketi ng and advertisements had a determinative or coercive effect in causing a third part y (i.e., the S hooter, a self - described “AR - 15 afici onado ”) to commit this monstrous school sho oting — a senseless and needlessly tragic e vent that closely mirrored the imagery inclu ded in the defendants’ advertisements. Se e generally Lowy Compl aint ¶ 57- 102 (defendants’ adverti sements); see also id. ¶ 121 (alle ging that “ the Shooter assembled [d] efendant s’ products to create customized weapons o f war for use in the Shooting ”); id. ¶ 122 (specifying that “t he Shooter also purchased various weapons, weapon accessories, and ammunition online f rom a number of retailers, e xposing the Shooter to [d] efendants’ products a nd advertisements ”). Resisting this straigh tforward conclusio n 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 [S hooter] to attack the elementary [sic] sc hool.” See Di smissal Ruling 6. But that rationale amou nts to nothing more than a “ma gic words” pleading

33 requirement, which co urts have routinely cautioned against. See, e. g., Barron v. Uni ted States, 111 F.4th 667, 674 (5th Cir. 2024) (recognizing that “[f]e deral pleading standar ds do not demand ‘ any m agic words ’”). Instea d, in evaluating the def endants’ motions to dismiss for lack of Art icle III standing, the c ourt was required — b ut fatally failed — to “presume that general allegations emb race those specific facts that are necessary to supp ort the claim.” See Lujan, 504 U.S. at 561. And h ere, it is apparent that t he plaintiffs’ detailed and thorough factual allegations suffic iently demonstrate that the defendants’ condu ct had a “determinative or c oercive effect” on the S hooter’s actions relate d to the shooting. 11 (b) Additionally, we are e ntirely un persuaded by the di strict court’s rationale that the plaintiffs’ allegations in the complaints that are predicated on “infor mation and belief” are only an appropriate pleading practice whe n the necessary informatio n is exclusively in the defendants’ control. See Dismissal Ruling 6 (“The com plaint does not suggest defendants control such evidence o f [the Shooter’s] relia nce and does no more th an speculate that [the Shooter], like other y oung men in V irginia, observed defe nd ants’ adve rtisements. Without more support, these pl eadings fail to raise pl aintiffs ’ right to relief above the speculative level and can proceed no further.”). A s the plaintiffs emph asize, however, such reas oning 11 We readily reject the defendants’ contention t hat the Article III causation element required the pleading of allegations that the Shooter saw each example of the defenda nts’ allegedly unlawful advertisement s. See Br. of Appellee s 11 - 13. Not only does that assertion overstate the plaintiffs’ burden, see Robertson, 679 F.3d at 291, it ignores the fac t that the relevant infor mation about the Shoo ter’s interactions with the defendants is held by them and other third -parties, such as law enforcement — not by the plaintiffs.

34 overlooks the importan t fact tha t “information supporting [their] claim s may well be in [t he defendants’] possessio n, given that [the defendants] control and/or ha ve access to their own social media, online pl atforms, and mailing li sts.” See Br. of Appell ant 33. Not only that, but the district court’s mystifying rejection of “inf ormation and belief” pleading in a complaint gets the law wrong. To be sure, th at pleadi ng practice is expressly authorized b y the applicable Rules of Civil Proc edure, when the allegati ons are based “on sufficient factual mate rial that make s the inference of culpability plausible. ” See Ahern Rentals, Inc. v. EquipmentShare.com, Inc., 59 F.4th 948, 954 (8th Cir. 2023) (explaining that feder al courts “cannot al ways expect plaintiff s to provide robust evidentiary support for their allegations at the pleading stage becaus e, in some contexts, that information may not be available to [th e plaintiffs] before discovery”). As Rule 11(b)(3) of the Federal Rules of Civil Procedu re specifically conte mplates, [a ]n attorney or unrepresented party cer tifies that to the best of the person ’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: . .. the factual conten tions have evidentiary support or, if specifically so identified, will likely h ave evidentiary su pport after a reasonable opportunity for further investigatio n or discovery[.] See Fed. R. Civ. P. 11(b)(3) (emphasis added)). 12 In other words, f actual “ allegations pled on information and belief are not categori cally insufficient to state a cl aim for relief where 12 Our sister circuits h ave consistently agreed that factual allegations that are pleaded on “ informatio n and belief ” are not to be rejected under Twombly where “the facts are peculiarly within the posse ssion and cont rol of the defendant, or where the belief is based on factual infor mation that make s the inference of culpability plausible.” S ee Arista Recs. LLC v. Do e 3, 604 F.3d 110, 120 (2d Cir. 2010) (emphasis adde d); see also Mena rd v. CSX Transp., Inc., 698 F.3d 40, 45 (1st Cir. 2012); McDermott v. Clondalkin Grp., Inc., (Continued)

35 the proof supporting t he allegation is withi n the sole possession and control of the defendant or where t he belief is based on sufficient fact ual material that makes the inference of culpability plausible. ” See Ahern Rentals, 59 F.4th at 954 (emphasis added). 13 In making t hose errors, the Dismissal Rul ing disregarded numerous factual allegations of the complaints that the p laintiffs 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 “dis missal [cannot be ] based on a judge’s disbelief of a complain t’s factual allegations”). And those disregarde d allegations — which serve to support the plaintiffs’ belief that the defendants’ allegedly unlawful marketing pract ices had a determinative or coerci ve effect on the Shoote r’s heinous acts — include the following: • That the Shooter specifically ch ose the defen dants’ products to execute the shooting at the Bur ke School, see Lowy Compl aint ¶ 120 (“Th ough he owned numerous ot her weapons, weapon accessories, and boxes of ammunition, [d] efendants’ products were his weapons, wea pon accessories, and ammunition of choice. U pon information and belief, the Shooter made these choices becau se he perceived the se weapons, accessories, and amm unition to be a superi or fit for carrying ou t his mission of causing the most destruction p ossible.”); 649 F ed. App ’x 263, 2 67 - 68 (3d Cir. 2016); Innova Hosp. S an Antonio, Ltd. P’ship v. Blue Cross & Blue S hield of Ga., Inc., 892 F.3d 719, 730 (5th Cir. 2018); Pi relli Armstrong Ti re Corp. Retiree Med. Benefits Tr. v. Walgreen Co., 631 F.3d 436, 44 2 - 43 (7th Cir. 2011); Soo Park v. Thomps on, 851 F.3d 9 10, 928 (9 th Cir. 2017); Karee m v. Haspel, 986 F.3d 859, 866 (D.C. Cir.), c ert. denied sub no m., Kareem v. Burns, 142 S. Ct. 486 (2021). 13 We observe that, i n chastising the plaintiffs’ p leading practices in the complaints, the district court relied on authority that all egations made on info rmation or belief are entirely permi ssible. See, e.g., Ridenour v. Multi - Color Corp., 14 7 F.Supp.3d 452, 456 (E.D. Va. 2015) (coll ecting decision s regar ding propriety of inf ormation and belief pleading practice, inc luding when plaintiff s have relied “on second- hand information”).

36 • That the Shooter assembled the defen dants’ products after sear ching online for “how - to in structions and instruct ional videos,” id. ¶ 12 1 (“Upon information a nd belief, the Shooter assembled [d]efenda nts’ products to create customized weapons of war for use in the Shoot ing. The Shooter’s online presence suggests that he did so after searching online for how-to instr uctions and instruction al videos.”); and • That the Shooter used the defendants’ dan gerous and deadly w eapons in ways that closely mirrored their pre - shootin g marketing activitie s, id. ¶ 123 (“Upon informat ion and belief, the Sh ooter was exposed to and influenced by [d] efendants’ deceptive and unfair marketing acts and practices while researc hing and planning the Shooting.”). These factual allegations in the complaints are not at all “speculative,” and otherwi se show “facts supporting the allegations that were ple aded [by the plaintiffs] u pon information and belief.” See Kashdan v. George Mason U niv., 70 F.4th 694, 702 (4th Cir. 2023). (c) Finally, that the defendants’ conduct may not have been the “las t step in the chain of causation” does not alter the result we reac h 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 defenda nt’s conduct, it matt ers not whether the defendant’s “acti ons are the very last step in the chain of causation.” Id. Rather, so long as a defendant is “keenly aware” of the “virtually determinative eff ect” of its conduct on the alle ged actions of a third party (in this situation, the Shooter), a plaintiff has sufficiently alleged that the defendant’s actions had a “determinative or coer cive effect ” on the thir d party. Id. at 170. As in th e Court’s Bennett deci sion, “it is not difficult to conclude [here] that [the plaintif fs] h ave met their burden — which is relatively mode st at this stage of the litigatio n — of alleging that their injury is ‘fairly tra ceable’ to the” the defe ndants’ alleged con duct. Id.

37 * * * At bottom, the plaintiffs’ theory of Article II I standing — and, in p articular, their theory of Lujan causation — is cognizable a nd survives the defend ants’ Rule 12(b)(1) motions to dismiss. To that end, the plaintiffs’ burden as to the issue of Article III causa tion is “relatively modest” at the “motio n -to- dismiss stag e.” See DiCocco, 52 F.4th at 592. Spanning hundreds of paragraphs, the compl aints specify that the defendants marketed their assault weapons and other related produc ts in a manner tha t promotes the mil itaristic and unlawful use of those products; that the defendants knew t heir advertisements contained content unsuitable for certain audie nces and that such marketing could lead t o mass shootings; that the defendants’ dece ptive marketing spec ifically targeted young men like the Shooter; that the Shooter — a self - ide ntified “AR - 15 aficionado” — was exposed to and influenced by t he defendants’ unlawf ul marketing while pla nning the April 2022 shooting at the Burke School; and that specific adverti sements publish ed by the defendants and promoted just before the shootin g bear a str iking resemblance to the sniper -style assault that brutally maimed and injur ed the plaintiffs. Be cause we are satisf ied that the plaint iffs possess Article III standing to sue, we reve rse the Dismissal Rul ing in that regard. B. After concluding that t he plaintiffs lacked the requisite Article III st anding to sue, the district c ourt went on to dismiss eac h of the plaintiffs’ cl aims on t he merits — pursuant to Rule 12(b)(6) — on the sole basis that a 20 05 federal enactment (i.e., the PLCAA) bars the plaintiffs’ claims against the def endants. For differin g reasons, all the parties hav e

38 surprisingly argued that we are entitled to reach and asse ss that statutory a spect of the Dismissal Ruling. We readily reject those invi tations. Instead, as disc ussed below, we are obliged to vacate, set a side, and hold for n aught the remainder of t he Dismissal Ruling. 14 1. In the Supreme Court’s seminal 1868 case of E x parte McCardle, then- Chief J ustice Salmon Cha se explaine d 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 e xist, 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 B etter Env ’t, 523 U.S. 83, 94 (1998) (quot ing Ex parte McCa rdle, 74 U.S. at 514). Pu t differently, w hen a federal court has ruled that it lacks subject - matter j urisdiction, it must d ismiss the case. The cou rt can do nothing else without exceedin g the lawful bounds of its Article III judicial autho rity. To that end, by its Steel Co. case in 1998, th e Supreme Court again held that, under Article III, a federal court must sati sfy 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 impor tant and salient point: our vacatur of the remaining balance of the Dismissal Ruling is not an indi cation — in any way — of agreement with Judge Quattlebaum’s unnecessary and pas sing assessment in his dissenting opinion of whether the PLCCA se rves as a valid basis for a Rule 12(b)(6) dismis sal of the plaintiffs’ lawsuits again st these defendants. See post at 69 (“And, if I agreed with the majority that the district court erred in its jurisdictional as sessment, I would see nothing wrong w ith affirming dismissal of most defendants on the basis of the district court’s alternativ e holding.”). Put sim ply, that assessment is not authoritative in any manner, in that our dissent ing colleague d oes not “possess a rovi ng writ to gratuitously decide an interesting. . . issue.” See Palmer v. Liberty Univ., 7 2 F.4th 52, 68, n.8 (4t h Cir. 2023).

39 that Arti cle III ’s jurisdi ctional re quirements ar e satisfied, simply to reach the merit s 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 r oving writ to gratuitously decide an interesting . . . issue”). Writing for the Court in Steel Co., Justice Scali a cogently explained: W hile some of the. . . cases must be acknow ledged to have diluted the absolute purity of the rule that Article III jurisdiction is al ways an antecedent question, none of them even approa ches approval of a doctrine of “hypothetical jurisdicti on” that enables a c ourt to resolve c ontested qu estions of law when its jurisdiction is in doubt. Hypothetical jurisd iction produces nothing more than a hypothetical judgment — which comes to the same thing as an advisory opinio n, disapproved by thi s Court from the beginning. Muskrat v. United States, 219 U.S. 346, 362 (1911); H ayburn’s Case, 2 Dall. 409 (1792). Much more than l egal niceties ar e at stake here. The statutory and (especially) const itutional elements of jurisdiction are an essential ingredient of separatio n and equilibration of powers, restraining the courts from acting at certai n times, and even restraining them from acting permanently regarding certain su bjects. See United St ates v. Richards on, 418 U.S. 166, 179 (1974); Schlesinger v. Re servists Comm. to Stop th e War, 418 U.S. 208, 227 (1974). For a court to pronounce upon the meaning or the constitutionality of a s tate or federal law when it has no jurisdiction to do so is, by very definition, f or a court to act ultra vi res. See 523 U.S. at 101 (cit ation modified); accord Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 577 (1999) (relyin g on Steel Co. precedent for pro position that “[t ]he requirement that jurisdiction be established as a threshold matt er . . . is inflexible and without exception. . . for j urisdic tion is power to declare the law. . . and without jur isdiction the court cann ot proceed at all in any ca use” (citation modified) (emphasis added)). After determining that the plaintiffs lack ed Article III standin g to sue, the Dismissal Ruling proceeded to dismiss the plaintiffs’ claims on the ir merit s, reasoning t hat the complaints had failed to state a plausible claim upon which relief could be gr anted. But

40 pursuant to the Ex parte McCardle and Steel Co. precedents, the district court was not authorized to re nder such impe rmissible and advisory merits rul ings. See MedI mmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127 (2007) (recognizing that federal courts cannot issue advisory opinion s that merely address “ what the law would be upon a hypot hetical set of facts ” (citation modified)). Rather, ap plying applicable precedent, th e court co uld only have dismissed these complaints without prejudice. See, e. g., Ali v. Hogan, 26 F.4th 587, 595 (4th Cir. 2022); Goldman v. Brink, 4 1 F.4th 366, 369 (4th Cir. 2022). Such an outcome is als o consistent with the a pproach taken by the Second Circuit — that is, if a court di smisses a case for lack o f subject - matter jurisdiction, then it does not possess the power to a djudicate a Rule 1 2(b)(6) motion to di smiss for failure to state a claim. See, e.g., Morrison v. Na t’l Aust ralia Bank Ltd., 547 F.3d 167, 170 (2 d Cir. 2008) (“Determining the exist ence of subject matter jurisdiction i s a threshold inquiry [.] ”); Harty v. Simon Prop. Grp., L.P., 428 F ed. 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 adjudica te [the defendant’s] alternative mo tion to dismiss for fail ure 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 subjec t to our review on appe al.” See Harty, 428 F ed. App’x at 73. Simply put, once a court concludes that there is a lack of Article III standing,

41 it “ lacks the power to adjudicate the merit s of the case” or “to dismiss a case with prejudice.” See Car ter v. HealthPort Tec hs., LLC, 822 F.3d 4 7, 54-55 (2d Cir. 2016). 15 Again, there is no reason at all to depart from the Ex parte McCardle and Steel Co. precedent s, even out of concern for “judicial e conomy.” As the Supreme Court declared in Ruhrgas AG v. Marathon Oil, “[t]he requirement that jurisdi ction be established as a threshold matter . . . is i nflexible and without exception [.]” See 526 U.S. at 577. To depart from that principle in this situat ion — i.e., b y sanctioning and reviewing the district court’s advisory ruling s on the merits — simply undermines the controlling mandate that a federal court must cease judici al activity once it rules that subject-matter j urisdiction is lacking. 16 15 We observe that the di strict court’s dismissal practice is prob lematic for another solid reason. Although a dismissal for lack of Article III stan ding is without prejudice, see Ali, 26 F.4th at 595, a dismissal under Rul e 12(b)(6) is made wi th prejudice, unless specifically ordered otherwise, see, e. g., Carter v. Norfolk Cmty. H osp. Ass ’ n, Inc., 761 F.2d 970, 974 (4th Ci r. 1985) (“A district c ourt ’s dismissal under Rule 12(b)(6) is, of course, with prejudi ce unless it s pecifically orders di smissal without prejudice.”). Here, the Dismissal Ruling did not specify whether the court’s improvi dent Rule 12(b)(6) dismissals were with or without prejudice, suc h that they were ma de with prejudice. Id. 16 Our dissenting collea gue suggests that this Court has heretof ore “ affirmed a district court’s alternat ive holding after findi ng the district court er red in dismissing an action for lack of subject - matter jurisdi ction. ” See post at 68 (citin g Food Town Stores, Inc. v. E.E.O.C., 708 F.2d 920, 923 - 25 (4th Cir. 1983), and Protopa pas v. Travelers Cas. & Sur. Co., 94 F.4th 3 51, 358 - 59 (4th Cir. 20 24)). Notably, neither decision cited by the dissent involved a district court conclud ing that a plaintiff lacked Artic le III standing to sue in federal court — an “irreducible const itutional minimum” that must be sa tisfied 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 cas e 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 - matt er jurisdiction under 28 U.S.C. § 1332 and a lternatively conclud ing that procedural defec t precluded removal).

42 2. Turning to the appropr iate remedy, we will b riefly explain our decision to vacat e those aspects of the Dismissal Ruling that are impermiss ible and merely advi sory, consistent with Ex parte McCardle an d Steel Co. As heretofore emphasized, the d istrict court’s ruling on Article III standing de prived it of any authority to a djudicate the merits of these case s. Therefore, the court acted ultra vires by reaching the merits and dismissing the complaints — with prejudice — under Rule 12(b)(6) o f the Rules of Civil Pr ocedure. Put most simp ly, the district court had ren dered moot the balance of its Dismissal Ruling by its initial determination concernin g Article III standing. In somewhat analogous circumstances, the Sup reme Court has aptly recognized tha t the vac atur of an unde rlying judgment — which is rendered moot b y vagaries and happenstanc e, as opposed to any voluntary party conduc t — is entirely appropriate, insofar as it “cle ars the path for future relitigation of the issues between the parties.” See Alvarez v. Smith, 55 8 U.S. 87, 94 (2009). Consistent with that pr oposition, we vacate, set aside, and hold for naught the unreviewed advisory aspects of the Dismissal Ruling — that is, the district court’s impr ovident determinations that the plaintiffs’ claims are each barred by the PL CAA. 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 thre e defend ants on grounds that those defendants did not raise, along with a con tention that the distr ict court im permissibly dismissed the Harris case against defendant FAB Manufacturing absent a proper motion to that effect, see Br. of Appellant 64 — tho se matters are for the rema nd proceedings.

43 IV. Pursuant to the foregoing, we reverse the distr ict court’s Article III standing ruling. We also vacate, set aside, and hold for naught the advisory aspec ts of the Dismissal Ruling, and remand for such ot her and further proceed ings as may be appr opriate. REVERSED IN PART, VACATED IN PART, AND REMANDED

44 QUATTLEBAUM, Cir cuit Judge, dissenting: Sadly, the facts of this case are both tragi c and familiar. Week afte r week, month after month and year a fter year, we learn of deaths and i njuries from another se nseless shooting. Sometimes they’re from hand guns in our nation’s bigge st cities. Sometimes t hey’re mass shooti ngs with more potent w eapons. Someti mes the victims a re random. Sometimes they’re me mbers of a group the sh ooter hates. More rec ently, they’ve eve n been political leaders. But neither the t ragic facts nor the preval ence of gun violence alter o ur responsibility as judges. Our job, as always, is to fol low the law wherever it takes us. 1 If we do that, our task here, while sad, is not hard. Defend ants made and sold dangerous but l egal products. A disturbed individua l used tho se products to commit an unspeakabl e crime. The disturbed individual, not the mak ers and sellers of la wful products, caused p laintiffs’ injuries. Grasping for legal str aws, plain tiffs allege that defenda nts’ advertis ements caused the disturbed individual not only to buy the w eapons and ammunition but also to shoot at students, parents and school employees. Th e law places a high burden on h olding a d efendant liable when an independent third party is the last link in an attenuated causa l 1 That does n’t mean we have no feelings about these is sues. Like others, we a sk questions like “why does this keep happ ening?” and “can’t we do so mething to stop this?” And those of us wh o believe in a divi ne being pray ab out them in the quiet of our homes, asking questions like, “ How long, O Lord, must I cry out for he lp, but You do not li sten?” Habakkuk 1:2.

45 chain between defenda nts’ actions and plaintiffs’ injuries. Sp eculation or guesswor k will not do. But that is all plaintiffs in this case have. They do not allege the disturbed indivi dual even saw defe ndants’ advertisements. They do not explain how the ads cause d this individual— even if he saw them — both to b uy the guns and ammun ition and to commit this horrible crime. Plaintiffs simply make broad and conclusory al legations. Under the law, that is not enough. Plaintiffs fail to plead facts that show their inj uries are traceable to defendants’ conduct u nder Article III. But even if t hey passed tha t bar, the plaintiffs certainly failed to alleg e facts that plausibly pl ead defendants’ conduc t proximately caused their injuries. Either way, the result is the same — plaintiffs’ complai nts must be dismissed. I respectfully dissent. I. I begin with the standa rd for assessing tracea bility in cases w here 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. Ultimatel y, I conclude that the district c ourt articulated an d applied the correct st andard. But, even if the district court articulated the standa rd incorrectly, plaintiffs’ allegations fail to s how traceability unde r the most genero us standard that can be dis cerned from Supreme Court decisions. Having explained that the district court corr ectly dismissed plaintiffs’ complai nt under existing stand ing principles, I then show tha t even if these principles c onflate standing with the merits question o f causation, plain tiffs’ complaints sho uld still be

46 dismissed under Rule 12(b)(6) bec ause they do not pla usibly allege fa cts that, even if true, show proximate cause. A. Article III of the Cons titution limits federal c ourts’ authority t o deciding “Cases” and “Controversies.” U.S. C ONST. art. III, § 2. Under the Supreme Court’s interpretation of this requirement, a plaintiff must show, am ong other things, that he has standing. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (199 2). The “irreducible constitutional mini mum of standing contains three elements” — (1) the plaintiff must have suff ered an “injury in fact” (2) that is “fairly. . . trace[able] to the chall enged action of the defendant” and (3) for w hich the court can likely provide s ome redress. Id. at 560 – 61 (alterations i n original) (citations omitted). The second of these elements —traceability — asks whether there is some “causal connection” between a plaintiff’s in jury and the defendant’s unlawful conduct. Id. at 560. This requirement “scre ens out plaintiffs who were not injur ed by the defendant’s action. ” Food & Drug A dmin. v. All. for Hippocratic Med., 6 02 U.S. 367, 383 (2024). Under this limitation, “injury that results from th e independent action of some t hird party not before the court” will not esta blish our jurisdiction. S imon v. E. Ky. Welfare Rts. Org., 426 U.S. 26, 41 – 42 (1976). Still, plaintiffs do not have to allege that def endants’ 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 plai ntiff is directly injured by a third party, the injury may still b e fairly traceable to a defendant’s ups tream conduct when the thir d party’s

47 actions form the last link in a chain of causa tion. See Bennett v. Spear, 520 U.S. 154, 168 – 69 (1997). Additionally, the nature of proof require d for the plaintiff to m ake this showing is consistent “with the ma nner and degree of evidence required at the successive stages of th e litigation.” Luj an, 504 U.S. at 561. So, at the pleading stage, we pre sume the truth of the plaintiff’s allegations a nd construe those allegations in the p laintiff’s favor. Id.; Dav id v. Alphin, 704 F.3d 327, 333 (4th Cir. 2013). But, much like when w e assess a motion to dismiss for failure to state a claim under R ule 12(b)(6), we do n ot “take account of allegations in the complaint labele d as fact but that constitute not hing more than ‘legal conclusions’ or ‘naked assertions.’ ” See David, 704 F.3d at 333 (quoti ng Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Moreove r, we must bear in mind that the plaintiff’s burde n is plausibility, not possibi lity — “[w]here a compl aint pleads facts that ar e merely consistent with a defendant’s liability, it stops short of the line between possibil ity and plausibility of entitlement to relief.” I qbal, 556 U.S. at 678 (internal quotation marks omitted) (quot ing Bell Atl. Corp. v. Twom bly, 550 U.S. 544, 557 (2007)); acco rd Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016) (“Where, as here, a cas e is at the pleading sta ge, the plaintiff must ‘clearly . . . allege facts demonstratin g’ each element [of standing].” (first alteration in original) (quoting Wart h v. Seldin, 422 U.S. 4 90, 518 (1975))). B. The district court deter mined that plaintiffs ha d not alleged t hat their injuries w ere “fairly traceable” to defendants’ conduct. J.A. 329. The court explained that it is difficul t,

48 but not impossible, for plaintiffs to establish th eir chain of causation i n circumstances like these, where an in dependent th ird party is di rectly responsibl e for their injuri es. To meet this high bar, plaintiffs had to allege that d efendants’ actions had a “determinative or coercive effect” on the third party. J.A. 330. The court determi ned plaintiffs’ allegations failed to do this for two reaso ns. First, plai ntiffs’ only allegatio ns about the shooter’s reliance on defendants’ marketing were co nclusory. Second, eve n if the complaints plausibly alleged the s hooter relied on defend ants’ marketing when choosing to pur chase a firearm or other products, th e complaints di d not allege that the ads had a “‘determinative or coercive effect’ on t he shooter’s decision t o shoot at plaintiff s.” J.A. 331. On appeal, plaintiffs argue that the district court applied the wr ong standard. Relying on the Suprem e Court’s decision in Departmen t of Commerce v. New Yor k, 588 U.S. 752, 768 (2019), plaintiffs argue that they need only have alle ged that defendants’ conduct had a “predict able effect” on the sho oter. And they claim th ey met that standard. In response, defenda nts argue that the distri ct court was correct in a sking whether plaintiffs alleged a “determinative or coerc ive effect.” They argue that this was the st andard announced by the Supr eme Court in Bennett, 520 U.S. at 169, when the Court stat ed that the defendant’s actions had a “determinati ve or coercive effect up on the action of some one else.” And they insist that the Supreme Court did not a nnounce a new standar d in Department of Comme rce. Thus, under the Bennett “determina tive or coercive effect” standard, defendants ar gue plaintiffs’ allega tions fail.

49 The majority largely agrees with plaintiff s. It believes that, in Bennett an d Department of Co mmerce, the Supreme Court provided two d ifferent, alternative t ests for standing. And because the majority finds pl aintiffs met the Department of Comm erce “predictable effect” standard — apparently the more generous of these two tests —the majority conclude s that plaintiffs have standing. But it altern atively reasons tha t plaintiffs also established standin g under the “determina tive or coercive effect” standard. C. To me, it’s hard to tell from the Sup reme Court’s decis ions which t est we should apply— or whether the Supreme Co urt provided two different te sts at all. On the one hand, nowhere in Department of Commerce did the Court give any indi cation that it was creatin g a new standard or departing from any previo us test. See 588 U.S. at 768. And its first citation after using the “predictable effect” l anguage was to Be nnett. See Dep’t of Com., 588 U.S. at 768 (first citing Bennett, 520 U. S. at 169 – 70; and then citing D avis v. Fed. Election Comm’n, 554 U.S. 724, 734 – 35 (2008)). Also, s ince deciding De partment of Commerce, the Court h as described its standar d for traceability in cas es when injuries are directly caused by someone other than the defendant by citing to both Depar tment of Commerce and Bennett. See All. for Hippocratic Med., 602 U.S. at 38 2–84. In doing so, it has given no indication that these two cases are in tension. See id. So, perhaps the Supreme Court’s “predictable ef fect” language in Department of Comme r ce is not a new, lower standard? Perhaps it si mply restates Bennett ’s “determinative or coer cive effect” standard using different words? This reading would see m to support defen dants’ position.

50 On the other hand, des pite deciding several cases on traceab ility for i njuries caused by third parties over the last 30 years, t he Supreme Court h as not repeated th e “determinative or coercive” language it used in Bennett since that 199 7 decision. And it is reasonable to construe l inguistic difference s between the “determ inative or coercive effe ct” language from Benne tt and the “predictable effect” lan guage from Department of Commerce. “Determine” means “to settle (a dispute, questio n, etc.) conclusively; d ecide” or “to establish or affect the nature, kind, or quality of; fix.” Determine, W EBSTER ’ S N EW W ORL D C OLLEG E D ICTIO NARY (3d ed. 1997). “Coerce” means “to res train or constrain by force, esp. by legal aut hority.” Coerce, W EBSTER ’ S N E W W ORLD C OLLEGE D IC TIO NA RY (3d ed. 1997). And “predict” simply me ans “to declare or indicate in a dvance: esp: foretell on the basis of observation, expe rience, or scientific rea son.” Predict, M ERRIAM - W EBSTE R ’ S C OLLEGI ATE D ICT ION ARY (11th ed. 2020). 2 From these definitions, all three words imply discerni ng some level of connec tion between a past event and a futu re event. But conclusively decid ing, fixing or constrain ing a particular outco me is more definitive than foretelling an event in advance b ased on observation of one’s pr esent circumstances, even if such foretel ling involves a degree of reliability from o bservation, experienc e or 2 I am using a d ictionary from around the tim e the Supreme Court de cided Bennett to define “determine” and “coerce” and a dic tionary from around th e time the Supre me Court decided Department of Com merce to define “predic t.” The definition of “predict, ” however, is essentially the same in the 1997 dictionary. See Predict, W EBSTE R ’ S N E W W ORL D C OLLEGE D ICTIONA RY (3d ed. 1997) (defining “predict” as “to say in advance (what one believes wi ll happen); forete ll (a future event o r events)”). And I sa w no meaningfully different definitions of these wo rds in other diction aries.

51 scientific reason. S o, this distinction would see m to support t he position taken by plaintiffs and the majority. Still, despite any lin guistic differences be tween Bennett and D epartment of Commerce, it’s hard to see from Supreme Cou rt decisions if the two p hrases used in those cases really indicate d ifferent standards. Tha t’s because, rather tha n focusing on thos e labels, the Supreme Co urt’s description of the applicable sta ndard has been consistent in other respects. Nota bly, the Court has made clear on severa l occasions that, in cases like this one, plaintiffs fa ce a high burden. See, e.g., California v. Te xas, 593 U.S. 659, 675 (2021) (“[W]here a cau sal relation between inj ury and challenged acti on depends upon the decision of an independent third party. .. , standing is not preclud ed, but it is ordinarily substantially more difficult to establ ish.” (internal quotation mar ks omitted) (quoting Lujan, 504 U.S. at 562)); Allen v. Wrig ht, 468 U.S. 737, 757 – 58 (19 84); 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 thi s standard. See, e.g., Murthy v. Missouri, 6 03 U.S. 43, 57 – 58 (2024); Cla pper 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 (fin ding third party actions were not speculative). I ndeed, the Court has sugge sted that, under this high standard, “attenuate d links” between a def endant’s conduct and “far removed” third -part y actions are not go ing to cut i t “ 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.

52 100, 112 (2025) (“C ourts must disti nguish the ‘predicta ble’ from the ‘speculative’ effects of government action or judicial relief on third parties.” (quoting All. f or 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 a ppropriate disposition of this case is not. Her e’s why. First, despite the confusion, our circuit’s precedent i s more clear and remains b inding on this panel. Second, there are se veral reaso ns why plai ntiffs’ claims fail under Supreme Court precedent regardless of any differenc e in language betwee n Bennett and Depart ment of Commerce. 1. I start with our precedent. Recentl y, we explained in Sheppheard v. Morrisey that “[w]hen multiple acto rs are involved, a plaintiff can esta blish causation onl y if the defendant’s conduct ha d a ‘determinative or coercive effect upon the action of some one else.’” 143 F.4th 232, 243 (4th Cir. 2025) (e mphasis added) (quoting Bennett, 520 U.S. at 169). And we reached the same conclusion before that in an unrepo rted opinion. Alvarez v. Becerra, No. 21 - 23 17, 2023 WL 2908 819, at *3 (4th Cir. Apri l 12, 2023) (“Indeed, where multiple actor s are involved, a plaintiff can establish causation only i f the defendant’s conduct ha d a ‘determinative or coercive effect upon the action of some one else.’” (emphasis adde d) (quoting Be nnett, 520 U.S. at 169)). Whil e we did not addr ess Department of Comme rce in either Sheppheard or Alvarez, we decide d both of those cases

53 years after that Supreme Court decisi on. And in so doing, we found that there is but one path for a plaintiff to establish traceabili ty between a defenda nt’s conduct and a third - party’s actions — a sho wing that the defendan ts’ conduct had a “dete rminative or coercive effect” on the actions o f the third party. See Sheppheard, 143 F.4th at 243; Alvarez, 2 023 WL 2908819, at *3. Thus, to the e xtent there is a question over wh ether, without saying so, the Supreme Court created a new test i n Department of Commerce, Sheppheard suggests we have alrea dy implicitly answered that question—it didn’t. The majority resists this conclusion. Instead of follow ing Shepphear d, it relies on the Second Circuit’s contrary decision in Ate res Bais Yaakov Acade my of Rockland v. Town of Clarkstown, 88 F.4t h 344 (2d Cir. 2023). In that case, the Se cond Circuit reasoned, without citing or refere ncing Bennett, th at “‘determinative or co ercive effect[’]. . . soun ds in proximate cause, w hich. . . overstates the showing that is requir ed” for a plaintiff to demonstrate traceability. Ateres, 88 F.4th at 3 52 (citation omitted). But even though Ateres conflicts with Sheppheard, the majori ty relegates Sheppheard to a mere footnote, mainly because it did not disc uss Department of Commerce. Tru e, a panel of our court is not bound by a prior panel’s dec ision that is u ntenable with Supreme Court authority. United States v. Banks, 29 F.4t h 168, 178 (4th Cir. 2022). But the majori ty doesn’t claim that to be our situation. And, given the lack of clarity ab out the relationship between Bennett an d Department of Com merce, we couldn’ t say foll owing S heppheard wou ld “bind us to a path inconsistent with the S upreme Court’s dictate s.” Cf. Rose v. PSA Ai rlines, Inc., 80 F.4th 488, 504 (4th Cir. 2 023); accord Payne v. Ta slimi, 998 F.3d 648, 653 – 55, 655 n.4 (4th Cir.

54 2021) (explaining that a prior panel’s decision is usually binding on f uture panels except, inter alia, “where Sup reme Court decisions, ‘clearly undermine[] ’ a panel precedent” (alteration in original) (quoting United State s v. Williams, 155 F.3 d 418, 421 (4th Cir. 1998))). As a result, we can’t just ca st Sheppheard asi de. Se e Payne, 998 F.3d at 653 –55, 654 nn.2 – 3, 655 n.4; McMellon v. Unite d States, 387 F.3d 329, 332 – 3 3 (4th Cir. 2004) (e n banc) (making clear a panel is typically bo und by prior pa nel decisions). That me ans Sheppheard controls. Applying that standard, plaintiffs’ allegations unquestionably fail. Plaintiffs never allege any facts t hat, if accepted as true, would show that defe ndants’ advertiseme nts were the decisive factor in t he shooting or compell ed the shooter to fire th at day. For exam ple, several times plaintif fs allege “[u]pon infor mation and belief” that the shoote r was “exposed to and i nfluenced by” defendants’ a ds at some point when deciding whether to purchase defendants’ p roducts. J.A. 81, 1 65. To state the obvious, being expo sed to or eve n influenced by ads is a far cry from those ads determinin g what the shooter would do or coercing the shooter i nto committing the atr ocities at the Edmund Burke School. And, beyond the difference in those wor ds, plaintiff s do not allege any facts explai ning how the ads were the decisive factor in the sh ooter’s decision to use defenda nts’ products to try to kill people at a sc hool or compelled him to do th at. So, under th e “determinative or coercive” standard, pla intiffs have failed to pl ead facts that would sh ow, even if true, that their injuries are trace able to defendants’ c onduct.

55 The majority seems to rest its alternative holdi ng that plaintiffs suffici ently alleged defendants’ advertisements had a “determi native or coercive effect” on the shooter bas ed primarily on our decision in Lansdo wne on the Potomac Homeowne rs Association, Inc. v. OpenBand at Lansdow ne, LLC, 713 F.3d 187 (4th Cir. 2013). To the majority, th at case stands for the propositi on that “the ‘deter minative or coercive eff ect’ standard is satisf ied when the defendant p ublishes informa tion which leads a third party to c onclude that it should proceed in a manner that injur es a plaintiff.” Maj. O p. at 31 (quoting Lansdow ne, 713 F.3d at 197). But t hat description misses some key points about Lansdowne. The case originated as a dispute bet ween a homeowners associatio n and OpenBa nd, a group of corporate entities effectively acting as a si ngle cable service provider. Lansdowne, 713 F.3d at 192 – 95. Through a series of contractual a greements, easement s and restrictive covenan ts, the HOA grante d OpenBand the e xclusive right to establish the infrastructure necessary to provide cable servi ces. Id. at 193. A few years later, the Federal Communications Com mission adopted a ne w rule outlawing thes e types of exclusiv ity arrangements. Id. at 192. When the HOA later attempte d to find a new cable provider, competing cable com panies refused to pr ovide services to the HOA because o f OpenBand’s exclusivit y rights, and the HOA sued OpenBand. I d. at 194 – 95. OpenBand argued that the HOA did not have standing because its injuries were caused “by the independent, intervening actions of third partie s not before the court — to wit, the decisions by competing compani es not to offer video ser vice.” Id. at 197. We re jected that argument based on evidence that the competing cable providers would have pro vided services to the

56 HOA but determined that they could not d o so because the exclusivity arrangements prohibited them from a ccessing the propert ies and providing tho se services. Id. Thus, the majority is correct, in a very basic sense, that the publi cation of the contracts, easements an d restrictive covena nts caused third - party c able providers to inj ure 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 leg al and practical hindrances pr eventing the t hird - party cable providers from s ervicing the HOA. In contrast, e ven if plaintif fs’ allegations did no t suffer from the problems I already des cribed, defendants’ advertise ments did not affect the shooter’s actio ns in the same legal and practical ways as the documents in Lansdo wne. Consequently, plaintiffs have failed to allege defendants’ acti ons had a “determinati ve or coercive eff ect” on the shooter under our precedent. 2. In addition, there are other reason s plaintiffs’ claims fail that do not depend o n applying the “determ inative or coer cive eff ect” standard. As already described, the Supreme Court has told us that, regardless of h ow the standard is label ed, when there is an independent actor in be tween the challenged conduct of defe ndants and the alleged in juries, plaintiffs face a formidable challeng e. Calif ornia, 593 U.S. at 675. And in facin g that challenge, speculation or guesswork about how a defendant’ s actions impac t a third party will not do. Diamond Alt. Energy, 6 06 U.S. at 112; Murthy, 603 U.S. at 57. For at least

57 four reasons, plaintiffs have alleged no facts, beyond speculation and guesswor k, that if true would trace their i njuries to defendants’ a dvertisements. First, many of plain tiffs’ allegations ar e concl usory. For example, plaintiffs alleged “these manufacturers have deceptively and unfairly mar keted their assault rifles, rifl e accessories, and ammunition in ways designed to appeal to the impulsive, risk -tak ing tendencies of civilian adolescent and post - adolescent ma les.” J.A. 30. Also, pla intiffs alleged that “these consumers forese eably use Defendants’ as sault rifles, rifle accessories, and ammunition in mass shootings.” J.A. 30. Without additional de tails, allegations that marketing is unfair and deceptive, tha t it is designed to appeal to impul sive young men an d that use of defendants’ legal products in mass s hootings is foreseeable are the precise types of legal conclusions and naked factual assertions we are to disr egard at this sta ge in the litigation. 3 See David, 704 F.3d at 333; se e also Spokeo, 578 U.S. at 338. Second, plaintiffs all eged no facts tying the s pecific individua l who opened f ire at the Edmund Burke School to defendan ts’ adve rtisements. For exampl e, while they included 3 The district c ourt reject ed many of plaintiffs’ factual allegations because they were pled “upon informatio n and belief.” J.A. 331. The majority makes much of this fact and finds that this was an e rror in the distri ct court’s decis ion. According to the ma jority, “the district court’s mystif ying rejection o f ‘infor mation and belief p leading’” was in error because that practice is allowed “when th e allegations are based ‘on sufficient factua l material that makes the inference of culpabi lity plausible.’” Maj. Op. at 34 (quoting Ahern Rentals, Inc. v. EquipmentShare. com, Inc., 5 9 F.4th 948, 954 (8th Cir. 2023)). This was also the standard e mployed by the district co urt. See J.A. 331 (“[A]llegations pled upon information and belief ‘may not be wholl y conclusory. ’” (quoting Kashdan v. Ge orge Mason Univ., 70 F.4th 694, 701 (4th Cir. 2023)). In other words, the district co urt used the exact standard that the majority say s it should have used. Applying it, the district c ourt simply found that plain tiffs allegations were c onclusory. To me, that was correct.

58 35 pages of images of defendants’ onlin e ads, plaintiffs neve r allege d that the shooter saw any of them. Also, it is true that plaintiffs alle ged generally that the s hooter had an online presence, that he had a Wikipedia page and th at he called hims elf “an AR- 15 afi cionado” on that webpage. J.A. 80. But casti ng aside their speculative and co nclusory allegations, plaintiffs did not allege the shooter ever visite d any of defendants’ websites. Nor did they even allege that he ma de 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, c onvinced him to not only buy the products b ut also use them to try to kill people at a school. Without fac ts that allege a connection between defenda nts’ advertisements and t he shooter’s crimes, plaintiffs’ speculation a nd guesswork about ho w defendants’ actions i mpacted the shooter do not plausibly satisfy Article III’s traceabilit y requirement. See, e.g., Murthy, 603 U.S. at 57–58; Clapper, 568 U.S. at 413. Third, plaintiffs’ o wn allegations undermine their arguments. For example, plaintiffs alleged that “the Shooter was e xposed to and influenced by Defendan ts’ deceptive and unfair marketing acts and practices while r esearching and plan ning the Shooting. ” J.A. 81 (emphasis a dded). With this allegati on, plaintiffs have created a timing problem that undermin es their claim. How could the adverti sements have caused hi m to commit the shooting if he was not influenced by the advertisements until he was a lready planning his crime? Finally, some of plaintiffs’ alle gations sound more like an anti - gun public policy campaign than allegations in a law suit. For example, the y alleged “[t]he Defen dants

59 employ sales and mar keting practices that create and feed a cons umer base of young, civilian men who keep the money rolling in by purchasing not on ly the rifles, but all the deadly accessories tha t go with them — ammunition, optics, high - capacity magazines, silencers, and laser - ai ming devices, among others.” J.A. 30 (emphasis added). They also alleged that “[r]ather than beha ve res ponsibl y, Defendants stoke fear of gun regulations and encourage stockpiling after shootin gs to increase that demand.” J.A. 30 (em phasis added). Gun violence i s a legitimate issue in our society. Havin g and expressing stron g views in favor o f gun control i s certainly appr opriate in th e policy de bate over those i ssues. But this is a law suit, not a political campaign. Poli tical buzz wor ds like these are not helpful. And they certa inly do not assist plaint iffs’ efforts to establish traceability. To reiterate, none of t hese four shortcoming s in plaintiffs’ allegati ons depend on any distinction bet ween “determinative or coe rcive effect” and “ predictable effect.” That’s because plaintiffs have failed to plausibly all ege defendants’ advertise ments had any effect on the shooter at all — whether determinative, coercive, predictable or otherwise. Thus, while I disagree wi th the majority’s reading of Depa rtment of Com merce, these defects render plaintiffs’ alleg ations insufficient und er either of the alternative tests describ ed by the majority and under the consistent ad monishments from the S upreme 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 s tage of the case. Without discovery, plaintiffs and the m ajority insist plaintiffs’ burden is low. I certainly agree th at the burden a party faces at the motion to

60 dismiss stage is less t han the burden at summary judgment and then at trial. But that does not relieve them of the obligation to allege facts plaus ibly giving ris e to the inference of traceability. See David, 704 F.3d at 333; cf. DiCocco v. Ga rland, 52 F.4th 588, 592 (4t h Cir. 2022) (explaining that the plaint iff’s burden was “relatively mod est” and finding that the plaintiff met that burden because she alle ged facts showing the defendant’s conduct was the but-for cause o f her injuries (quoti ng Bennett, 520 U.S. at 171)). Beyond that, it is incorrect to say that plaintiffs had no way to gather more information. True, Lo wy submitted a FOIA request to the FBI, and the gover nment objected to providing the information she so ught in that FOIA case. See Compl. ¶ 5, Low y v. Fed. Bureau of Inves tigation, No. 1:23 - cv -0 721- JMC (D.D.C. filed Mar. 16, 2023), ECF No. 1. But the information she sought was focused on the weapo ns, 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 gener al information about the shooting, it did not specifically seek the type of information t hat would be most relevant to plaintiffs’ traceability issue, such as infor mation on the shooter’s online presence. Also, besides that FOIA case, plaintiffs had other options to gai n information from defendants. They cou ld have sued the shooter’s estate and used thir d - party discovery on defendants to gat her information. Or they could have emp loyed investigators to find out i nformation about the shooter. Lastly, we do not dispense wit h pleading requi rements when the i nformation i s hard to acquire. The S upreme Court mad e this evid ent in Twombly, 550 U.S. at 558–60. In that

61 case, a putative plaintiff class broug ht an antitrust case against variou s regional telephone service providers. Id. at 548 – 50. The Court ex plained that the plaintiffs’ complain ts could only survive the pleading stage if they set fort h non - conclusory factual allegations sho wing that they were plausibl y entitled to relief. Id. at 555 – 58. The Court justified this stan dard in part because withou t non - conclusory factu al allegations, a party should not be able to force another into discovery. Id. at 558 – 60. Then, just a few years late r, the Court clarified, in Iqbal, that the Twom bly pleadi ng standard was not specific to the antitrust context and, instead, applied in all civil cases. Iqb al, 556 U.S. at 684. In s o doing, the Court reiterated the same concerns with discovery ab uses that i t raised in Two mbly. 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 rela xed when only limite d discovery would be needed. Id. at 684 – 86. Applying those principles here, the difficulty o f obtaining discovery should make no difference in how we evaluate whether plaintiffs have plausibly p led their claims. I would affirm the distr ict court’s dismissal for lack of standing. II. Even though I would affirm the district co urt based on current law, I have some concerns about our modern approach to tr aceability, at least in a tor t action where injuries are caused by a third p arty not before the cou rt. But despite those c oncerns, and even if

62 plaintiffs have shown standing, I wo uld still af firm the district cour t’s alternative dismi ssal for lack of proximate c ause. I start with three conce rns about our cur rent law on standing. First, the discussion of whether plaintiffs have alleged standing, under either of the two alternative tests proposed by the majori ty, feels very similar to one we’d be having if we were considering a Rule 12(b)(6) motion to dismis s for failing t o plausibly allege facts that show proximat e clause. After all, whe n we focus on whether a “chain of ca usation” is broken b y an “independent” event, Bennett, 520 U.S. at 169 (emp hasis omitted), or even whether a defendant’s actions predictably or foreseeab ly cause a plaintiff’s injuries, Dep’t of Com, 588 U.S. at 768, our inquiry seem ingly envelops the very same concerns traditionally underlying the proximate cause analysi s in tort, see Paroline v. Un ited States, 572 U.S. 434, 445 (2014) (“Pro ximate cause is often explicated in terms of foreseeability or the scope of the risk create d by the predica te conduct. A re quirement of p roximate cause thus serves, inter ali a, to pr eclude liability in situa tions where the causal link betwe en conduct and result is so attenua ted that the consequenc e is more aptly describ ed as mere fortuity.” (citations omitted)). T hus, the law seemingl y conflates Article III causation and tort proximate cause in this situation. Second, it seems like our current law on traceability isn’ t entirely consistent. O n the one hand, our current standards seem ingly require us to apply t he proximate cause analysis to questions of trace ability when a plaintiff’s injuries ar e directly ca used by a thir d party, as I just describe d. And whether we evaluate Art icle III causa tion under B ennett ’s

63 “determinative or coercive” languag e, Department of Commerce ’ s “predictable ef fect” terminology or the case s that describe the burd en as high and one that eschews speculation and guesswork, the cha llenge plaintiffs face in these situations is apparently rigorous. But on the other hand, the Supreme Court has told us “[p]r oximate causation is not a requirement of Article III standi ng.” Lexmark I nt’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 s howing required t o prevail in a tort suit. DiCocc o, 52 F.4th at 592. I’m not sure how to square these two seemingly in congruous commands. 4 Third, it’s hard for me to see how the requi rement of showing a suff icient level of causation helps establis h whether we have a n Article III Case or Controversy. I ndeed, there is some scholarship suggesting th at Article III’s Case and Co ntroversy language, as originally understood, simply required that a plaintiff must have a ca use of action. Cass R. 4 One way to square them is if t he language ab out a high burde n is not referrin g to a different legal standard. Perhaps it’s ins tead only suggesting that, as a practical matter, showing traceability is harder when a plaintiff s’ injuries are directly caused by actions of a third party not before the court. That is als o the case when we think abo ut proximate causation. For instance, imagine a car is trav eling at highway spee d, and a tire starts to come apart. This makes a loud n oise for a mile or so, but the driver keeps going at the same speed. Then, the tire fails, the driver l oses control and the v ehicle crashes, injuring a passenger. The passe nger sues the tire manufac turer, alleging a de fective tire. To show that the allegedly defective tire cause d the injuries, the passenger mus t overcome the fact that his injuries were more directly caused b y the driver con tinuing down the road at highway speed and failing to co ntrol the vehicle a fter the tire failed. The passenger may ha ve a more difficult time convincing a jury that it was the t ire that caused the crash and not the driver. But there is no mor e rigorous le gal standard. I f this is what a hi gher burden means, it’ d be helpful to clarify that an interve ning cause co mplicates a plaintiff’s task as a matt er of fact, rather than as a matte r of law.

64 Sunstein, What’s Standing After Lujan? Of Citizen Suits, “I njuries,” and Article III, 91 M ICH. L. R EV. 163, 168 – 81 (1992). According to this view, mo dern standing doctrine arguably developed o ut of interpretations of statutory req uirements for bringing cases under the Administrati ve Procedures Act. Id. at 181 – 86; Elizabeth Magill, Standi ng for the Public: A Lost History, 95 V A. L. R EV. 11 31, 1160 (200 9). But to the extent those requirements had purel y statutory origins in ad ministrative law, the Su preme Court shifted them to constitutiona l requirements for federal jurisdiction t hrough a series of cases in the 1970s. Magill, supra, at 1174 – 82. So, perhaps our applica tion of Article III’s standing requirements to comm on law claims is worth revisiting. Despite those concern s, even if plaintiffs had made the necessar y showing for standing, I would st ill find that their c laims should be dismissed. T hat’s because, for largely the same reasons I f ound plaintiffs lack s tanding, they failed to plead facts that plausib ly allege defendants’ conduct proxi mately caused their injuries. P laintiffs must allege proximate causation to properly allege entitle ment to relief under any of their claims. 5 5 In cou nts 1 through 13, plaintiffs accused defendants of violati ng the V irginia False Advertising Statute (V FAS), Va. Code Ann. § 18.2- 216. Then, in counts 14 t hrough 26, plaintiffs alleged defendants violated the Virg inia Consumer Protecti on Act (VCPA), Va. Code Ann. § 59.1-19 6 et seq. In count 27, plai ntiffs sought to hold Daniel Defense, BCM, FosTecH, Griffin Armament, Centur ion Arms and SOLGW liable f or negligence per se based on their alleged violations o f the National Firearms Act (NFA), 26 U.S.C. § 5801 et seq. In count 28, plai ntiffs sought to hol d this same grou p of defendants liable for negligence per se base d on their alleged violations of Virginia’s Uniform Machi ne Gun Act (UMGA), Va. Co de Ann. § 18.2-2 88 et seq. Finally, in c ount 29, plaintiffs accu sed Daniel Defense, Ma gpul, FAB Manufacturing, Fioch i Munizioni, S urefire and Tor kmag of negligence. Both the V FAS and the VCPA re quire plaintiffs to dem onstrate injuries as a result of defe ndants’ statutory violation s. See Va Code Ann. §§ 59.1- 68.3; 59.1 -204. (Continued)

65 Under Virginia law, “[t]he proximate ca use of an event is that act o r omission which, in natural and continuing sequence, unbrok en by an efficien t intervening cause, produces the event, and without which that event would not have occurred.” D orman v. State Indus., Inc., 787 S.E.2d 132, 1 38–39 (Va. 2016) (quot ing Kellermann v. McD onough, 684 S.E.2d 786, 793 (Va. 2009)). Here, for reasons I e xplained previously, plaintiffs have not allege d facts that, if accepted as true, show a link b etween defendants’ ad vertisements and the shooter’s independent decisions to comm it his crime. Thus, if the court were to reach the merits of plaintiffs’ cla ims, their allegatio ns would fail under Rul e 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. 202 5). And to prevail on their negligence per se claim, plaintiffs must demonstrate that defendants’ alle ged statutory violations were proximate causes of their injurie s. Halterman v. Radisson Hotel Corp., 523 S.E. 2d 823, 825 (Va. 2000). 6 After ruling on standing, the district court alternatively fo und that plaintiffs’ allegations would f ail on the merits because their failure t o plead pr oximate cause woul d mean their claims we re barred by the Pro tection of Lawful C ommerce in Arms A ct (PLC AA), 15 U.S.C. § 7901 et seq. That statute prohibit s a plaintiff fr om bringing “a civil action . . . against a m anufacturer or seller o f a qualified product.. . resulting from the criminal or unlawful mi suse 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 produ ct” as “a firearm. . ., or ammunition . . ., or a component par t of a firearm or ammunition, that has been shipped or transported in inter state or foreign commerce.” Id. § 7903(4). Notably, there is an exception to the PLC AA’s general prohibit ion of liability know n as the “predicate exception.” Smith & W esson Brands, Inc. v. E stados Unidos M exicanos, 605 U. S. 280, 286 (2025). “That exceptio n applies to suits in which the defen dant manufacturer or seller ‘knowingly violated a State or Federal s tatute applicable to the sa le or marketing’ of firearms, and that ‘violation was a proximate cause of the harm for wh ich relief is sou ght.’” Id. (quoting § 7 903(5)(A)(iii)). T he PLCAA al so includes a separate e xception that permits plaintiffs to bring suits for negligence per se. § 7903(5)(A)(ii). Thus, because proximate cause is relevant to th ese exceptions under t he PLCAA, it is, by extension, relevant to whether the PLCAA im munizes defendants from liability. I ta ke no position at this time on (Continued)

66 And if we step back fr om the emotion of a sc hool shooting, this res ult should not come as any surprise. If plaintiffs’ theory were viable, think of w here it might lead. Imag ine a disturbed individual buys a car marketed as having a powerful engi ne that permits q uick acceleration. The individual then takes that v ehicle and accelerates into a crowd, killing and injuring many in its path. Would t he vehicle manufact urer be liable to victi ms because of ads stating that the car could go from 0 to 6 0 in seconds? Of course not. Nor have thes e plaintiffs asserted a via ble claim against these defendants. III. Finally, before closing, I want to address t he majority’s conc lusion that it was improper for the district court to reach the mer its of plaintiffs’ claims after determini ng it lacked jurisdiction. R elying primarily on the Supreme Court’s deci sions in Steel Co. v. Citizens for a B etter Environment, 523 U.S. 83 (1998), and Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1868), the majority reaso ns that, once the district court found that it lacked Article III jurisdictio n, it had t o put down its pen. According to the majority, the distric t court had no authority to alternatively consider whether plaintiffs’ allegations failed on the merits. I do not read th ose cases to require such restraint. Certainly, it is true that courts must have Articl e 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 plai ntiffs’ allegations against these d efendants. But I note that, if it does apply, pl aintiffs’ failure to plead proximate cause would also mean plainti ffs are not entitled to either of these e xceptions to immunity u nder the P LCAA. See § 7903(5)(A)(ii), (iii).

67 Court rejected the doctrine of “hypot hetical jurisdiction.” 523 U.S. at 94, 101. Under that doctrine, a court faced with a tough jurisdi ctional question a nd an easy merits question might assume the exist ence of jurisdictio n and dismiss the case on the meri ts. I d. at 9 4. The Supreme Court made clear courts cannot do that because jurisd iction “is always an antecedent question.” I d. at 101. Thus, a court cannot base its rulin g on the merits when there is an open questio n about whether it has j urisdiction. Id. at 101– 02. Therefore, it is clear fr om Steel Co. that a federal court faced with jurisdictio nal questions cannot assume hypothetical juris diction 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 jurisdicti onal requirements are satisfied, simply to rea ch 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 wha t happened here. Rathe r than assuming jurisdictio n, the district court enga ged in a thoughtful a nd thorough analysis of this complicated question. Then, onl y after fully enga ging with those issues, and determining that it lacked jurisdiction, did the di strict court render the alternative holding that the same def ects making plaintiffs’ com plaints insufficient to properly alleg e standing — namely, lack of causation—also do omed their claims on th e merits. Courts, including ours, routinely issue alternati ve holdings. See, e.g., United States v. Hunt, 123 F.4th 697, 702 (4th Cir. 2024) (“Second — and in the alter native — we conclude that Section 922(g)(1) would pass const itutional muster even if we were unconstrai ned by circuit precedent.”). An d we routinel y affirm district co urts’ alternativ e holdings. See, e. g.,

68 Foodbuy, LLC v. Greg ory Packaging, Inc., 987 F.3d 102, 120 (4th Cir. 2021). Notably, we have even affirmed a district court’s alt ernative holding after finding the district court erred in dismissing an action for lack of subject - matter jurisdiction. See Food Town Stores, I nc. v. E.E.O.C., 708 F.2d 920, 923 – 25 (4th Cir. 1983); see also Protopa pas v. Travelers Cas. & Sur. Co., 94 F.4th 351, 358– 59 (4th Cir. 2 024) (dismissing an appeal of a remand order based on both the district court’s s ubject -matter-jurisdi ction ruling and its alternative procedural- defect rulin g). Thus, I do not read Supreme Court p recedent as restraining the district court from issui ng its alternative holdi ng. 7 Making matters wor se, after explaining its view that the di strict court should not have issued its a lternative holding, the majority, once again re lying on Second Ci rcuit precedent, seems to co nclude that we lack a uthority to revie w that alternative holdi n g. According to the major ity, since the district court decided it lacked ju risdiction, it did not have power to e xpound on those gro unds. And even t hough the majority con cludes the court did, in fact, have jurisdictio n, we still must turn a blind eye to t he alternative reason the district court said warranted dism issal. The majority’s rea soning can be summarized as “a district court which erroneously concludes t hat it lacks jurisdiction does lack jurisdiction even if it does not reall y lack jurisdiction.” Ru therford v. McDonoug h, 466 F.3d 970, 976 (11th Cir. 2006). This makes no sen se to me. And it conflic ts with those previous instances in which we have reviewed alternative holding s 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.

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 se e nothing wrong with the district court reaching an alternative ground for dismissal after first address ing the jurisdictional issues. And, if I agreed with the majority that the district court erred in its jurisdictional ass essment, I would see nothing wrong with affirmi ng dismissal of most defendants on the b asis of the district court’s alternative holding. 8 IV. My heart hurts when I c onsider 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 horrib le and senseless acts of gun violence? But neither the pain of recounting this attac k nor the understan dabl e questions that it raises permit us to look away from or water do wn the law’s requirement s that plaintiffs plead facts that, if true, show their injuries are traceable to defen dants’ conduct or that defendants proxi mately caused this horrif ic event. Stripped of con clusory statements and speculat ion, plaintiffs did not d o this. We should affir m the district court. 8 Vista Outdoors, Fi occhi of A merica, FAB Manufacturing and Fiocchi Muniz ioni all argued in their respective moti ons to dismiss below that the court lacked personal jurisdiction over them. Like subject - matter jurisdictio n, personal jurisdiction must be addr essed before the c ourt rules on the m erits. See Ruhrgas AG v. Marathon Oil Co., 5 26 U.S. 574, 584 – 85 (199 9). Thus, if I believed there was stan ding, I would remand for the district court to address the personal jurisdictio n issues against these d efendants and affir m dismissal of the allegat ions against all other d efendants.