Connecticut Supreme Court Finds Unfair Trade Practices Act Not Preempted by Federal Law, Reinstates Sandy Hook Plaintiffs’ Suit Against Manufacturer
By Lee S. Siegel, Esq.
In a landmark ruling, a sharply divided Connecticut Supreme Court revived the Sandy Hook plaintiffs’ law suit against the manufacturer of an AR-15-type firearm that was used to kill 20 children and six educators at the Sandy Hook Elementary School in Newtown, Connecticut in 2012. Soto v. Bushmaster Firearms Int'l, LLC, No. 19832, 2019 WL 1187339 (Conn. Mar. 19, 2019). The Court, in a 4-3 ruling, carved a narrow exception to a federal law that protects the gun industry from legal liability for gun violence. But, perhaps of even more lasting impact for Connecticut, the Court may have significantly broadened potential liability under the Connecticut Unfair Trade Practices Act (CUTPA). The defendants are sure to seek review by the United States Supreme Court; however, regardless of that outcome, the Connecticut Court’s CUTPA pronouncements will stand.
Bushmaster, a subsidiary of Remington, manufactured and marketed an AR-15-type semi-automatic rifle that was used by David Lanza, 20, to gun down the Sandy Hook victims. The firearm, passing through several hands, was legally purchased by Lanza’s mother for her son’s use. The plaintiffs, the estates and surviving family members of some of the victims, brought suit under a variety of theories, but the trial court dismissed the suit, primarily in reliance on the Protection of Lawful Commerce in Arms Act, passed by Congress in 2005. The Connecticut Supreme Court transferred the plaintiffs’ appeal to itself from the Connecticut Appellate Court.
The PLCCA, through federal preemption, protects firearm manufacturers and dealers from liability for the “criminal or lawful misuse” of their products. Exceptions to the PLCAA are limited but include design or manufacturing defects, negligent entrustment, and knowing violations of an underlying statute that is applicable to sale and marketing laws (i.e. the predicate exception rule). The plaintiffs argued that the defendant’s marketing violated CUTPA and that CUTPA qualifies as a predicate exception to federal preemption. The Connecticut Supreme Court agreed.
The plaintiffs alleged that the manufacturer knowingly marketed and advertised its AR-15-type rifle to attract buyers by promoting the weapon’s militaristic capabilities. The plaintiffs argued that by using military imagery to entice consumers, the manufacturer’s conduct constituted an unfair trade practice under Connecticut state law, thus falling within the predicate exception rule of the PLCAA. The Court wrote,
The plaintiffs' second theory of liability is that the defendants' advertised and marketed the XM15-E2S in an unethical, oppressive, immoral and unscrupulous manner. They contend that the defendants' have sought to grow the AR-15 market by extolling the militaristic and assaultive qualities of their AR-15 rifles and, specifically, the weapon's suitability for offensive combat missions. The plaintiffs argue that the defendants' militaristic marketing reinforces the image of the AR-15 as a combat weapon that is intended to be used for the purposes of waging war and killing human beings. Consistent with that image, the defendants' further promoted the XM15-E2S as a combat weapon system by designating in their product catalogues that the rifle comes “standard” with a 30 round magazine which, the plaintiffs allege, differs from how the defendants' promote and sell rifles for legal civilian purposes such as hunting and sport shooting.
Connecticut law, the Court held, does not allow advertising that encourages violent or criminal conduct and, therefore, as alleged the defendants’ marketing violates CUTPA. “We further conclude that PLCAA does not bar the plaintiffs from proceeding on the single, limited theory that the defendants' violated CUTPA by marketing the XM15-E2S to civilians for criminal purposes, and that those wrongful marketing tactics caused or contributed to the Sandy Hook massacre.14”
Expanding who has standing under CUTPA: no direct consumer relationship required
The Supreme Court had to make several significant rulings about CUTPA in order to allow the suit to proceed. Primarily, the Court had to determine if the plaintiffs, absent a consumer relationship with the defendants, had standing to bring a CUTPA claim.
The general wisdom in Connecticut was that only those in privity with a defendant had standing to pursue a CUTPA cause of action. The Court, however, looked to the express language of the CUTPA statute to overcome that generally accepted interpretation. Connecticut General Statutes §42-110g (a) creates a private right of action for persons injured by unfair trade practices and provides, in part: “Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action ... to recover actual damages....” Analyzing the statute, legislative history, amendments to the statute, and the Court’s previous pronouncements, while focusing on the predicate language “any person,” the Court held that there is no CUTPA remedy limitation to only persons who have done business of some sort with a defendant. The Supreme Court rejected that its rulings in Vacco v. Microsoft Corp., 260 Conn. 59, 793 A.2d 1048 (2002), and Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 881 A.2d 937 (2005), cert. denied, 547 U.S. 1111, 126 S.Ct. 1913, 164 L.Ed.2d 664 (2006), compelled the existence of a business relationship in order to confer standing.
Instead the Court decided, “[I]t is the direct victims of gun violence who are challenging the defendants' conduct; no private party is better situated than the plaintiffs to bring the action… if these plaintiffs cannot test the legality of the defendants' advertisements pursuant to §42-110g, then no one can.” Expounding on its holding, the Court wrote:
Because the principal evils associated with unscrupulous and illegal advertising are not ones that necessarily arise from or infect the relationship between an advertiser and its customers, competitors, or business associates, we hold that a party directly injured by conduct resulting from such advertising can bring an action pursuant to CUTPA even in the absence of a business relationship with the defendant.
This significant change in approach under Connecticut law may sharply increase the pool of potential plaintiffs who can properly pursue a CUTPA claim.
Expanding the scope of CUTPA damages to include personal injuries and death
The Supreme Court, next, needed to determine if personal injury and wrongful death damages are recoverable under CUTPA. In a ruling of first impression under Connecticut law, the Court determined that CUTPA permits recovery for personal injuries that result directly from wrongful advertising practices.
Examining the legislative histories of both CUTPA and the model Unfair Trade Practice Act gave the Court no direction. Still, it was persuaded by four factors that the legislature did not intend to bar plaintiffs from recovering for personal injuries resulting from unfair trade practices. First, the statute allows plaintiffs to recover “actual damages,” which by definition does not exclude personal injuries; second, CUTPA’s coverage is broad and its purpose remedial; third, CUTPA is closely associated with the Federal Trade Commission Act which prohibits advertising that could lead to injury; and, fourth, that other jurisdictions allow for the recovery of personal injuries within the scope of their consumer protection statutes. (Significantly, the dissenting justices agreed with this conclusion, rendering it the unanimous decision of the Court.)
Redefining the accrual of statute of limitations under CUTPA
CUTPA provides a three year statute of limitations, while the Connecticut Wrongful Death statute allows for a two year limitations period. The instant suit was commended just within the two year window for a wrongful death suit, but well more than three years after Mrs. Lanza purchased the AR-15. The Court concluded that, since CUTPA created a right of action that did not exist at common law, CUTPA’s three statute of limitations applied rather than the shorter wrongful death period.
Still, because the sale was more than three years prior to the commencement of the suit, the Court rejected the plaintiffs’ main argument on statute of limitations grounds. The plaintiffs had argued that there is no legitimate civilian use for an AR-15, that they pose unreasonable risks when used by civilians, and, “in essence, that any sale of any assault weapon to any civilian purchaser in Connecticut is, ipso facto, an unfair trade practice under CUTPA.” Any theory that the sale of the AR-15 was a CUTPA violation, the Court held, was time barred.
But, because the plaintiffs’ alternative theory argued that the unethical, immoral, and unscrupulous marketing of the AR-15 continued through the date of the shooting, and that the advertising influenced Lanza’s selection of weapon to carry out the massacre, the Court found that the statute of limitations was not a bar to suit.
The Court’s approach could be seen as a fundamental recalibration of the accrual of the statute of limitations for a CUTPA claim from the date of the suspect transaction to the date of injury.
CUTPA is a predicate statute under the PLCAA
Following a lengthy analysis of the PLCAA’s legislative history, the Connecticut Supreme Court concluded that Congress did not intend to preempt Connecticut’s authority to regulate the advertising and marketing of firearm sales. “The regulation of advertising that threatens the public's health, safety, and morals has long been considered a core exercise of the states' police powers.” Thus, if CUTPA qualifies as a predicate statute under the PLCAA, then the defendant gun manufacturers and dealers could be held liable for a knowing violation of the statute.
The Court held that, yes, CUTPA qualifies as a predicate statute—that it is a statute “applicable to the sale or marketing of [firearms] ....” 15 U.S.C. §7903(5)(A)(iii) (2012). Since CUTPA prohibits unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce, it is a statute capable of being applied to the sale and marketing of firearms. The determination follows the only other state appellate court to have reviewed the predicate exception rule in this manner. See Smith & Wesson Corp. v. Gary, 875 N.E.2d 422, 431, 434–35 and n.12 (Ind. App. 2007) (predicate exception unambiguously applies to any state law capable of being applied to sale or marketing of firearms), transfer denied, 915 N.E.2d 978 (Ind. 2009).
Appeal to the United States Supreme Court Likely
The majority concluded that Congress did not intend to immunize firearms companies from liability for unethical and irresponsible marketing practices that promote criminal conduct. CUTPA, and its analogues, are the only vehicles to address these alleged wrongs.
While the Connecticut Supreme Court was likely mindful that its preemption ruling is sure to be appealed, its conclusion seems to be an effort to send a message to the Justices in Washington.
[I]f the defendants' (sic) did indeed seek to expand the market for their assault weapons through advertising campaigns that encouraged consumers to use the weapons not for legal purposes such as self-defense, hunting, collecting, or target practice, but to launch offensive assaults against their perceived enemies, then we are aware of nothing in the text or legislative history of PLCAA to indicate that Congress intended to shield the defendants' from liability for the tragedy that resulted.
The Connecticut Supreme Court issued one of the most important decisions to come out of Hartford in at least a decade if not more. In Soto v. Bushmaster Firearms, the Court captured national headlines by reviving the Sandy Hook plaintiffs’ law suit against the maker of the AR-15 used to massacre 26 children and educators. The Court may have given future plaintiffs a roadmap to overcome the preemptive effect of the PLCAA under various states’ unfair trade practices acts, and in the process made significant rulings impacting the Connecticut Unfair Trade Practices Act.