By Susan Lasser, J.D.
Gun maker’s petition claiming that the Connecticut Supreme Court’s interpretation of the federal Protection of Lawful Commerce in Arms Act’s "predicate exception" was overly broad was rejected.
The U.S. Supreme Court will not review a decision by the Connecticut Supreme Court allowing claims by the estates of nine victims of the 2012 mass shooting at Sandy Hook Elementary School to move forward. The estates are seeking damages from the manufacturers, distributors, and direct sellers of the semiautomatic rifle that the perpetrator used in the shooting. Remington Arms Company, LLC (Remington) had petitioned the U.S. High Court to review the Connecticut high court ruling, which held that claims based on a theory of wrongful marketing could proceed (Remington Arms Co., LLC v. Soto, petition filed August 1, 2019; petition denied November 12, 2019).
The estates’ claims that the defendants marketed the rifle used in the shooting through advertising and product catalogs in an unethical, oppressive, immoral, and unscrupulous manner are cognizable under the Connecticut Unfair Trade Practices Act (CUTPA) even though the victims did not have a direct consumer or commercial relationship with the defendants, the Connecticut high court said. The court also held that the claims were not time-barred because the plaintiffs alleged that the advertising and wrongful conduct continued to occur through the time the complaint was filed.
The state high court further rejected the defendants’ assertion that the plaintiffs’ CUTPA claims were barred by the Protection of Lawful Commerce in Arms Act (PLCAA) (15 U.S.C. §§7901 through 7903 (2012)), which, subject to certain enumerated exceptions, immunizes firearms manufacturers, distributors, and dealers from civil liability for crimes committed by third parties using their weapons. The court determined that the estates’ claims fell within one of the PLCAA’s exceptions—the exception permitting civil actions alleging a knowing violation of a statute applicable to the sale or marketing of the firearm [see Products Liability Law Daily’s March 15, 2019 analysis].
Petition. Remington petitioned the U.S. High Court to reconsider the state supreme court’s ruling as to the PLCAA’s exception, which the petition noted "has come to be known as the ‘predicate exception.’" Remington said that the predicate exception enumerates examples of covered statutes, and that those examples specifically regulated the firearms industry. The gun manufacturer further observed that the Connecticut Supreme Court held that the PLCAA’s predicate exception "encompasses all general statutes merely capable of being applied to firearms sales or marketing." The petition contrasted this with decisions by the U.S. Courts of Appeal for the Second and Ninth Circuits, which it said have rejected such a "broad interpretation" of the exception, "which would swallow the PLCAA’s immunity rule."
Remington presented the following question to the High Court: "whether the PLCAA’s predicate exception encompasses alleged violations of broad, generally applicable state statutes, such as the Connecticut Unfair Trade Practices Act, which forbids ‘unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.’ Conn. Gen. Stat. § 42-110b(a)." In spite of Remington’s argument that the Connecticut Supreme Court’s decision is "plainly wrong," and that the PLCAA’s text and legislative history point to the conclusion that general unfair trade practices laws like the CUTPA are not included within the PLCAA’s predicate exception, the U.S. Supreme Court denied the manufacturer’s petition without comment or dissent. Therefore, the plaintiffs will be permitted to proceed with their claims against the gun maker.
The case is Docket No. 19-168.
Attorneys: Scott A. Keller (Baker Botts LLP) for Remington Arms Co., LLC. Donald B. Verrilli Jr. (Munger, Tolles & Olson LLP) for Donna L. Soto.
Companies: Remington Arms Co., LLC
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