Soto v. Bushmaster Firearms International, LLC ( 2019 )

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DONNA L. SOTO, ADMINISTRATRIX (ESTATE OF
VICTORIA L. SOTO), ET AL. v. BUSHMASTER
FIREARMS INTERNATIONAL, LLC, ET AL.
(SC 19832)
(SC 19833)
Palmer, McDonald, Robinson, Vertefeuille,
Mullins, Kahn and Elgo, Js.*
Syllabus
The plaintiffs, administrators of the estates of nine victims of the mass
shooting at Sandy Hook Elementary School on December 14, 2012,
brought an action in December, 2014, pursuant to this state’s wrongful
death statute (§ 52-555), seeking damages, among other relief, from the
defendants, the manufacturers, distributors and direct sellers of the
semiautomatic rifle that the perpetrator, L, used to shoot the victims.
Sometime prior to March, 2010, the rifle was manufactured by certain
of the defendants, sold to the defendant distributors, and then resold
to the defendant direct sellers, who operated a retail gun store in Con-
necticut. In March, 2010, L’s mother purchased the rifle from that store.
The rifle is capable of rapid semiautomatic fire, accommodates large
capacity magazines, and bullets fired therefrom travel at such a high
velocity that they cause a shockwave while passing through a human
body, often resulting in catastrophic injuries, even in areas remote to
the direct bullet wound. On the date of the shooting, L retrieved the
rifle, along with multiple thirty round magazines, drove to the school,
shot his way in, and proceeded to fatally shoot twenty-six people, includ-
ing the plaintiffs’ decedents, in less than four and one-half minutes. The
gravamen of the plaintiffs’ complaint was that the defendants negligently
entrusted to civilian consumers an assault rifle that is suitable for use
only by military and law enforcement personnel and violated the Con-
necticut Unfair Trade Practices Act (CUTPA) (§ 42-110a et seq.) through
the sale or wrongful marketing of the rifle. The plaintiffs’ first theory
of liability was that the rifle is a military grade weapon that is grossly
ill-suited for legitimate civilian purposes such as self-defense or recre-
ation, that the rifle and other similar semiautomatic weapons have
become the weapon of choice for mass shootings and, therefore, that
the risks associated with selling the rifle to the civilian market far
outweigh any potential benefits, that the defendants continued to sell
the rifle despite their knowledge of these facts, and that it therefore was
negligent and an unfair trade practice under CUTPA for the defendants
to sell the weapon, knowing that it eventually would be purchased by
a civilian customer who might share it with other civilian users. The
plaintiffs’ second theory of liability was that the defendants marketed
the rifle, through advertising and product catalogs, in an unethical,
oppressive, immoral, and unscrupulous manner by extolling the militaris-
tic and assaultive qualities of the rifle and reinforcing the image of the
rifle as a combat weapon that is intended to be used for the purposes
of waging war and killing human beings. The plaintiffs alleged that the
defendants advertised this rifle differently from how they would promote
and sell rifles intended for legal civilian purposes such as hunting and
recreation. In connection with this second theory of liability, the plain-
tiffs also alleged that the defendants’ marketing of the rifle to civilians
for offensive assault missions was a substantial factor in causing the
decedents’ injuries in that L’s attack, had it occurred at all, would have
been less lethal if L had not been encouraged by the defendants’ market-
ing campaign to select the rifle in question as his weapon of choice.
The defendants moved to strike the complaint, contending that all of
the plaintiffs’ 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 manufac-
turers, distributors, and dealers from civil liability for crimes com-
mitted by third parties using their weapons. The defendants contended
alternatively that the plaintiffs failed to state a legally valid negligent
entrustment claim under Connecticut common law and that their
claims predicated on alleged CUTPA violations were legally insufficient
because, among other reasons, the plaintiffs lacked standing under
CUTPA, their claims were time barred by CUTPA’s three year statute of
limitations (§ 42-110g [f]), personal injuries and death are not cognizable
damages under CUTPA, and their CUTPA claims were barred by the
exclusivity provision of the Connecticut Product Liability Act (§ 52-
572n [a]). In granting the defendants’ motions to strike the plaintiffs’
complaint, the trial court concluded that the plaintiffs’ allegations did
not fit within the common-law tort of negligent entrustment, PLCAA
barred the plaintiffs’ claims insofar as those claims sounded in negligent
entrustment, and the plaintiffs lacked standing to bring wrongful death
claims predicated on CUTPA violations because they never entered into
a business relationship with the defendants. On appeal from the trial
court’s judgment in favor of the defendants, held:
1. The trial court correctly concluded that the plaintiffs did not plead a
legally sufficient cause of action based on negligent entrustment under
this state’s common law and, therefore, properly struck the plaintiffs’
claims predicated on that legal theory: the plaintiffs failed to establish
that the defendants had any reason to expect that L’s mother, the direct
purchaser of the rifle, was likely to use the rifle in an unsafe manner
or in a manner that would involve an unreasonable risk of physical
harm; moreover, this court declined the plaintiffs’ invitation to expand
the common-law doctrine of negligent entrustment to allow such a cause
of action to proceed on a theory that it was reasonably foreseeable to
the defendants that, following the initial entrustment of a dangerous
instrumentality, such as the rifle in question, that instrumentality would
come into the possession of someone like L, who would use it in an
unsafe manner, and, in any event, it was unnecessary to decide whether,
in the present case, a cause of action for negligent entrustment could
proceed under such a theory because the plaintiffs did not allege that
any of the defendants possessed any knowledge or had any specific
reason to believe either that L’s mother would share the rifle with L or
that L was especially likely to operate it unsafely or illegally; furthermore,
to the extent that the plaintiffs were seeking to pursue their negligent
entrustment claim on the theory that any commercial sale of assault
weapons to civilian users constitutes negligent entrustment because the
societal costs of such sales outweigh the perceived benefits, this court
followed the lead of other courts in rejecting that theory.
2. The trial court improperly struck the plaintiffs’ claims under CUTPA on
the ground that the plaintiffs lacked standing because they were third-
party victims who did not have a consumer or commercial relationship
with the defendants: upon review of the text of § 42-110g (a), the provi-
sion of CUTPA creating a private right of action for persons injured by
unfair trade practices, and its legislative history, and in light of the broad
scope and remedial purpose of CUTPA, this court concluded that CUTPA
authorizes any person who has suffered an ascertainable financial loss
caused by an unfair trade practice to bring an action under CUTPA,
regardless of whether they had a business relationship with the person
or entity that engaged in the prohibited practice; moreover, prior case
law on which the trial court had relied in striking the plaintiffs’ CUTPA
claims for lack of standing did not recognize a business relationship
requirement, notwithstanding the defendants’ claim to the contrary, and,
therefore, principles of stare decisis and legislative acquiescence did
not require this court to impose a business relationship requirement in
the context of this case; furthermore, the defendants could not prevail
on their claim that prudential concerns supported the restriction of
CUTPA standing to persons who have a direct business relationship
with the alleged wrongdoer, as none of the rationales that underlie the
standing doctrine, either generally or in the specific context of unfair
trade practice litigation, supported the denial of standing to the plaintiffs
in the present case, in which the link between the allegedly wrongful
conduct and the plaintiffs’ injuries was far more direct and less attenu-
ated than in other cases in which this court has held that the plaintiffs
lacked standing under CUTPA on the ground that the harms alleged
were too indirect, remote and derivative with respect to the alleged
wrongdoer’s conduct.
3. This court concluded that a cause of action for wrongful death predicated
on a CUTPA violation must comply with both the statute of limitations
applicable to wrongful death claims, § 52-555 (a), which is two years
from the date of death and no more than five years from the date of the
act or omission complained of, and the statute of limitations applicable
to CUTPA claims, § 42-110g (f), which is three years from the date of
the alleged violation, this court having reasoned that any limitation
period contained in a statute such as CUTPA, which creates a right of
action that did not exist at common law, constitutes an essential element
of the cause of action created thereunder, and that, under this state’s
wrongful death statute, an action will lie only insofar as the decedent,
had he or she survived, could have satisfied all of the elements of the
underlying theory of liability on which the allegedly wrongful death is
predicated; because it was undisputed that the manufacturing, distribu-
tion and final sale of the rifle to L’s mother all occurred at least three
years prior to the commencement of the present action, the plaintiffs’
wrongful death claims predicated on the theory that any sale of military
style assault weapons, such as the rifle in question, represented an unfair
trade practice were time barred by the applicable statutes of limitations,
but the plaintiffs’ wrongful death claims predicated on the theory that
the defendants violated CUTPA by advertising and marketing the rifle
in an unethical, oppressive, immoral, and unscrupulous manner were
not time barred, as most of the plaintiffs’ wrongful advertising and
marketing claims were phrased in the present tense and, thus, could be
interpreted to allege that the defendants’ wrongful conduct continued
through the time the complaint was filed, and as at least one allegation
reasonably could be interpreted to mean that the defendants’ wrongful
conduct had occurred at the time of the shootings, which was within
the limitation period.
4. The defendants could not prevail on their claim, as an alternative ground
for affirming the trial court’s judgment, that the exclusivity provision
of the Connecticut Product Liability Act, which provides that a product
liability claim under that act shall be in lieu of all other claims against
product sellers for harm caused by a product, barred the plaintiffs’
CUTPA claims that were predicated on the defendants’ allegedly wrong-
ful advertising and marketing of the rifle; the defendant failed to establish
that those claims amounted to product liability claims, as there were
no allegations, for example, that the defendants’ advertising and market-
ing of the rifle contained inadequate warnings that made the rifle unrea-
sonably dangerous.
5. Contrary to the defendants’ claim, personal injuries resulting in death
that are alleged to have resulted directly from wrongful advertising and
marketing practices are cognizable under CUTPA: although the term
‘‘actual damages’’ in § 42-110g (a) is not defined in CUTPA, the use of
that term in other statutes led this court to conclude that the term
‘‘actual damages’’ in § 42-110g (a) includes personal injuries, and prior
case law supported the conclusion that the term ‘‘ascertainable’’ in
that portion of § 42-110g (a) providing that a person who suffers ‘‘any
ascertainable loss of money or property’’ as a result of a prohibited
practice under CUTPA may recover actual damages in no way restricted
the damages that are available to plaintiffs who have been directly and
personally injured by an unfair trade practice; moreover, a contrary
reading of the statute would be inconsistent with the stated intent of
the legislature to provide broad protection from unfair trade practices
and to incentivize private enforcement of the law, several other courts
from other jurisdictions and a majority of Connecticut trial courts
addressing the issue have concluded that victims of unfair trade practices
may recover for personal injuries, and Federal Trade Commission rulings
and cases decided under the Federal Trade Commission Act (15 U.S.C.
§ 41 et seq. [2012 and Supp. V 2017]), which the legislature intended
would serve as a basis for interpreting CUTPA’s open-ended language,
supported the view that wrongful advertising that poses a genuine risk
of physical harm falls under the broad purview of the Federal Trade
Commission Act and, by incorporation, CUTPA.
6. The trial court correctly concluded that CUTPA, as applied to the plaintiffs’
allegations, fell within PLCAA’s ‘‘predicate’’ exception to immunity for
civil actions alleging that a firearms manufacturer or seller knowingly
violated a state or federal statute ‘‘applicable to the sale or marketing
of [a firearm], and the violation was a proximate cause of the harm for
which relief [was] sought,’’ and, accordingly, PLCAA did not bar the
plaintiffs’ wrongful death claims predicated on the theory that the defen-
dants violated CUTPA by marketing the rifle in question to civilians for
criminal purposes and that those wrongful marketing tactics caused or
contributed to the decedents’ injuries:
a. this court’s review of the text of the predicate exception set forth in
PLCAA, 15 U.S.C. § 7903 (5) (A) (iii), read in the context of the broader
statutory framework, led it to conclude that Congress did not intend to
preclude actions alleging that firearms manufactures or sellers violated
state consumer protection laws by promoting their firearms for illegal,
criminal purposes and, therefore, that CUTPA qualified as a predicate
statute insofar as it applied to wrongful advertising and marketing
claims:
(i) this court concluded that, although the word ‘‘applicable’’ in the
predicate exception is subject to more than one interpretation, the
most reasonable interpretation of the word is ‘‘capable of being
applied,’’ in accordance with the word’s ordinary, dictionary mean-
ing, and further concluded that, if Congress had intended to create
an exception to PLCAA for actions alleging a violation of any law
that is capable of being applied to the sale and marketing of firearms,
there was little doubt that state consumer protection statutes such
as CUTPA would qualify as predicate statutes under PLCAA, because
CUTPA prohibits unfair or deceptive acts in the conduct ‘‘of any
trade or commerce’’ and thus is capable of being applied to the sale
and marketing of firearms.
(ii) if Congress had intended to limit the scope of the predicate
exception to violations of statutes that are directly, expressly, or
exclusively applicable to firearms, it easily could have used such
language, as it had done in other federal statutes.
(iii) because the predicate exception expressly refers to state or
federal statutes applicable to the marketing of firearms, and because,
at the time PLCAA was enacted, no federal statute and very few
state statutes directly or specifically regulated the marketing or
advertising of firearms, the only logical reading of the predicate
exception was that Congress had in mind other types of statutes,
and this court presumed that Congress was aware, when it enacted
PLCAA, that both the Federal Trade Commission Act and its state
analogues, including CUTPA, had long been among the primary
vehicles for litigating claims that sellers of potentially dangerous
products, such as firearms, have marketed those products in an
unsafe or unscrupulous manner.
(iv) reading the predicate exception to encompass actions brought
to remedy illegal and unscrupulous marketing practices under state
consumer protection laws was consistent with the approach of the
Second Circuit Court of Appeals, which previously held that the
predicate exception encompasses laws that clearly can be said to
implicate the purchase and sale of firearms, as well as laws of general
applicability that courts have applied to the sale and marketing of
firearms, into which categories CUTPA squarely fell.
b. The congressional statement of findings and purposes set forth in
PLCAA at 15 U.S.C. § 7901 lent support for this court’s conclusion that
Congress did not intend to preclude under PLCAA the plaintiffs’ wrongful
advertising and marketing claims brought pursuant to CUTPA:
(i) this court read the congressional statement of findings and pur-
poses to indicate that Congress chose not to abrogate the well
established duty of firearms manufacturers and sellers to market
their firearms legally and responsibly, even though no federal laws
specifically govern the marketing of firearms, and, although the
statement of findings and purposes indicated that Congress sought to
immunize the firearms industry from liability for third-party criminal
conduct, it did not indicate that the firearms industry should be
able to evade responsibility for injuries that result if manufacturers
or sellers promote the illegal use of their products.
(ii) the statement of findings and purposes makes clear that Congress
sought to preclude only novel civil actions that are based on legal
theories without foundation in the common law and that would
expand civil liability in a manner never contemplated by Congress
or the state legislatures, and, as it is well established that statutes
such as CUTPA not only govern the marketing of firearms but also
prohibit advertisements that promote or model the unsafe or illegal
use of potentially dangerous products, there was no reason to think
that the present action represented the sort of civil action that
Congress sought to bar.
(iii) although the statement of findings and purposes emphasizes
the importance of preserving the rights enshrined in the second
amendment to the United States constitution, it was not clear, in
light of prior United States Supreme Court and other federal prece-
dent, that the second amendment’s protections extend to assault
weapons such as the rifle at issue in the present case.
c. The defendants could not prevail on their claim that construing a
statute of general applicability such as CUTPA to be a predicate statute
would lead to the absurd result that, if the predicate exception were to
encompass every statute that might be capable of being applied to the
sale or manufacturing of firearms, then virtually any action seeking to
hold firearms manufacturers or sellers liable for third-party gun violence
could proceed; the plaintiffs’ wrongful marketing claims may proceed
without crippling PLCAA, as those claims allege only that one specific
family of firearms sellers advertised one particular assault weapon in
an uniquely unscrupulous manner, promoting its suitability for illegal,
offensive assaults.
d. Extrinsic indicia of congressional intent also supported the conclusion
that CUTPA, as applied to the plaintiffs’ claims, qualified as a predicate
statute under PLCAA:
(i) applying the canon of statutory construction that a federal law
is not to be construed to have superseded the historic police powers
of the states unless that was the clearly expressed and manifest
purpose of Congress, and observing that the regulation of advertising
that threatens the public health, safety and morals has long been
considered a core exercise of the states’ police powers, this court
concluded that, because there was no indication in the statutory
text or statement of findings and purposes of PLCAA that Congress
intended to restrict the power of the states to regulate wrongful
advertising, particularly advertising that encourages consumers to
engage in egregious criminal conduct, it could not find that the
plaintiffs’ wrongful marketing claims under CUTPA were precluded
by PLCAA.
(ii) the defendants could not prevail on their claim that the canon
of ejusdem generis, which dictates that, when a statute sets forth
a general category of persons or things and then enumerates specific
examples thereof, and when the scope of the general category is
unclear, a rebuttable presumption may arise that the general cate-
gory encompasses only things similar in nature to the specific exam-
ples that follow, resolved in their favor any statutory ambiguity as
to whether CUTPA falls within the purview of the predicate excep-
tion, as the predicate exception expressly contains two examples
of statutes that are applicable to the sale or marketing of firearms,
none of which relates to consumer protection or unfair trade prac-
tices; the canon of ejusdem generis was inapplicable to the predicate
exception in the face of a contrary manifestation of legislative intent,
and the most reasonable interpretation of the legislative history
surrounding the inclusion of the two examples indicated that they
were added to the predicate exception not in an effort to define,
clarify, or narrow the universe of laws that qualify as predicate
statutes but, rather, simply to stave off the politically potent attack
that PLCAA would have barred actions such as one that had arisen
from a widely reported sniper attack involving a semiautomatic
weapon in the District of Columbia a few years prior to the passage
of PLCAA.
(iii) the defendants could not rely on the canon that statutory excep-
tions, such as the predicate exception, must be construed narrowly
to preserve the primary purpose of the entire statutory scheme, as
the defendants misperceived the primary purpose of PLCAA, which
was not to shield firearms sellers from liability for wrongful or ille-
gal conduct.
(iv) the legislative history of similar federal legislation proposed but
not passed in the same year that PLCAA was introduced, which
would have bestowed PLCAA-type immunity on fast food restaurant
companies to protect them from actions seeking to hold them liable
for consumers’ obesity and related health problems, and which con-
tained substantially identical language to that set forth in the predi-
cate exception in PLCAA, made clear that the ‘‘applicable’’ statutes
for purposes of the predicate exception in the proposed legislation
were not limited to laws that directly and specifically regulated the
food industry but, rather, encompassed state consumer protection
laws, such as CUTPA, even though such provisions constituted laws
of general applicability that did not expressly address food and
beverage marketing or labeling.
(v) this court’s review of the legislative history of PLCAA led it to
conclude that Congress did not intend to limit the scope of the
predicate exception to violations of firearms specific laws or to
confer immunity from all claims alleging that firearms sellers vio-
lated laws governing unfair trade practices, as the sponsor and
cosponsors of the proposed legislation that became PLCAA empha-
sized that their primary concern was not with actions such as the
present one, in which individual plaintiffs who have been harmed
in a specific incident of gun violence seek to hold the sellers responsi-
ble for specific misconduct in selling the weapons involved, but,
rather, sought to preclude the rising number of frivolous actions
brought by municipalities and anti-gun activists that target the entire
firearms industry, and, furthermore, many legislators stated or
implied that the only actions that would be barred by PLCAA would
be ones in which a firearms manufacturer or seller bore no responsi-
bility or blame for the misuse of its firearms in the commission of
a crime or for the plaintiff’s injuries, and sought to foreclose only
novel legal theories and unprecedented tort theories, unlike the legal
theories advanced in the present case, that had been developed
by anti-gun activists with the goal of putting firearms sellers out
of business.
7. In light of this court’s holdings, the trial court’s judgment was reversed
insofar as it ruled that the plaintiffs lacked standing under CUTPA
and insofar as it concluded that the plaintiffs’ wrongful death claims
predicated on the theory that any sale of military style assault weapons
to the civilian market constituted an unfair trade practice were not time
barred, the trial court’s judgment was affirmed in all other respects,
and the case was remanded for further proceedings.
(Three justices dissenting in part in one opinion)
Argued November 14, 2017—officially released March 19, 2019
Procedural History
Action to recover damages for, inter alia, the wrongful
death of the named plaintiff’s decedent resulting from
the defendants’ alleged violation of the Connecticut
Unfair Trade Practices Act, and for other relief, brought
to the Superior Court in the judicial district of Fairfield,
where the court, Bellis, J., granted the motions of the
named defendant et al. to strike the amended complaint
and rendered judgment for the named defendant et
al., from which the plaintiffs appealed; thereafter, the
court, Bellis, J., granted the motion to strike filed by
the defendant Riverview Sales, Inc., and rendered judg-
ment thereon, and the plaintiffs filed a separate appeal.
Reversed in part; further proceedings.
Joshua D. Koskoff, with whom were Alinor C. Ster-
ling and Katherine Mesner-Hage, for the appellants
(plaintiffs).
James Vogts, pro hac vice, and Christopher Renzulli,
with whom were Scott M. Harrington and, on the brief,
Andrew A. Lothson, pro hac vice, Scott C. Allan, Jona-
than P. Whitcomb and Peter M. Berry, for the appel-
lees (defendants).
Howard Zelbo, Evan A. Davis, pro hac vice, and
Elizabeth Vicens, pro hac vice, filed a brief for Trinity
Church Wall Street as amicus curiae.
James J. Healy filed a brief for Nora Freeman
Engstrom et al. as amici curiae.
Matthew H. Geelan, Michael J. Dell, pro hac vice,
and Rebecca T. Dell, pro hac vice, filed a brief for Katie
Bakes et al. as amici curiae.
Vaughan Finn and Thomas H. Zellerbach, pro hac
vice, filed a brief for The Brady Center To Prevent Gun
Violence as amicus curiae.
John J. Kennedy, Jr., Brendan K. Nelligan, Brad S.
Karp, pro hac vice, H. Christopher Boehning, pro hac
vice, and Amy J. Beaux, pro hac vice, filed a brief for the
Law Center To Prevent Gun Violence as amicus curiae.
George Jepsen, former attorney general, Perry Zinn
Rowthorn, former deputy attorney general, Kimberly
Massicotte, associate attorney general, and Jeremy
Pearlman, assistant attorney general, filed a brief for
the State of Connecticut et al. as amici curiae.
Daniel J. Klau filed a brief for CT Against Gun Vio-
lence et al. as amici curiae.
David N. Rosen and Alexander Taubes filed a brief
for Newtown Action Alliance et al. as amici curiae.
Kenneth R. Slater, Jr., David H. Thompson, pro hac
vice, Peter A. Patterson, pro hac vice, and John D.
Ohlendorf, pro hac vice, filed a brief for the Connecticut
Citizens Defense League, Inc., as amicus curiae.
Lawrence G. Keane and Victor E. Schwartz, pro hac
vice, filed a brief for the National Shooting Sports Foun-
dation as amicus curiae.
Robert J. Chomiak filed a brief for the Connecticut
Defense Lawyers Association as amicus curiae.
Kenneth R. Slater, Jr., Paul D. Clement, pro hac vice,
and Erin E. Murphy, pro hac vice, filed a brief for the
National Rifle Association of America, Inc., as amicus
curiae.
Joseph P. Secola filed a brief for Gun Owners of
America, Inc., et al. as amici curiae.
Opinion
TABLE OF CONTENTS
Page
I. PROCEDURAL HISTORY . . . . . . . . . . . . . . . . 66
II. ALLEGED FACTS . . . . . . . . . . . . . . . . . . . . 70
III.NEGLIGENT ENTRUSTMENT . . . . . . . . . . . . . 75
IV. WRONGFUL DEATH AND CUTPA: ISSUES OF
STATE LAW . . . . . . . . . . . . . . . . . . . . . . . . 85
A. CUTPA Standing . . . . . . . . . . . . . . . . . . . 88
B. Statute of Limitations. . . . . . . . . . . . . . . . 100
1. Procedural History . . . . . . . . . . . . . . . 100
2. Legal Principles . . . . . . . . . . . . . . . . . 102
C. Connecticut Product Liability Act Preemption . 106
D. CUTPA Personal Injury Damages . . . . . . . . . 109
V. WRONGFUL DEATH AND CUTPA: ISSUES OF
FEDERAL LAW . . . . . . . . . . . . . . . . . . . . . 116
A. PLCAA Overview . . . . . . . . . . . . . . . . . . 116
B. The Plain Language of the Statute . . . . . . . . 118
1. The Predicate Exception . . . . . . . . . . . . 119
2. The Statutory Framework . . . . . . . . . . . 121
3. The Statement of Findings and Purposes. . . 130
4. Absurd Result . . . . . . . . . . . . . . . . . . 134
C. Extrinsic Evidence of Congressional Intent . . . 136
1. Canons of Statutory Construction . . . . . . . 136
a. Clear Statement Requirement . . . . . . . . 137
b. Ejusdem Generis . . . . . . . . . . . . . . . 138
c. Statutory Exceptions To Be Construed
Narrowly . . . . . . . . . . . . . . . . . . . . 144
2. Related Legislation . . . . . . . . . . . . . . . 144
3. The Legislative History of PLCAA . . . . . . . 146
VI. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . 156
PALMER, J. On December 14, 2012, twenty year old
Adam Lanza forced his way into Sandy Hook Elemen-
tary School in Newtown and, during the course of 264
seconds, fatally shot twenty first grade children and six
staff members, and wounded two other staff members.
Lanza carried out this massacre using a Bushmaster
XM15-E2S semiautomatic rifle that was allegedly manu-
factured, distributed, and ultimately sold to Lanza’s
mother by the various defendants in this case. There
is no doubt that Lanza was directly and primarily
responsible for this appalling series of crimes. In this
action, however, the plaintiffs—administrators of the
estates of nine of the decedents—contend that the
defendants also bear some of the blame. The plaintiffs
assert a number of different legal theories as to why
the defendants should be held partly responsible for the
tragedy. The defendants counter that all of the plaintiffs’
legal theories are not only barred under Connecticut
law, but also precluded by a federal statute, the Protec-
tion of Lawful Commerce in Arms Act (PLCAA), Pub.
L. No. 109-92, 119 Stat. 2095 (2005), codified at 15 U.S.C.
§§ 7901 through 7903 (2012), which, with limited excep-
tions, immunizes firearms manufacturers, distributors,
and dealers from civil liability for crimes committed by
third parties using their weapons. See 15 U.S.C. §§ 7902
(a) and 7903 (5) (2012).
For the reasons set forth in this opinion, we agree
with the defendants that most of the plaintiffs’ claims
and legal theories are precluded by established Con-
necticut law and/or PLCAA. For example, we expressly
reject the plaintiffs’ theory that, merely by selling semi-
automatic rifles—which were legal at the time1—to the
civilian population, the defendants became responsible
for any crimes committed with those weapons.
The plaintiffs have offered one narrow legal theory,
however, that is recognized under established Connecti-
cut law. Specifically, they allege that the defendants
knowingly marketed, advertised, and promoted the
XM15-E2S for civilians to use to carry out offensive,
military style combat missions against their perceived
enemies. Such use of the XM15-E2S, or any weapon for
that matter, would be illegal, and Connecticut law does
not permit advertisements that promote or encourage
violent, criminal behavior. Following a scrupulous
review of the text and legislative history of PLCAA, we
also conclude that Congress has not clearly manifested
an intent to extinguish the traditional authority of our
legislature and our courts to protect the people of Con-
necticut from the pernicious practices alleged in the
present case. The regulation of advertising that threat-
ens the public’s health, safety, and morals has long been
considered a core exercise of the states’ police powers.
Accordingly, on the basis of that limited theory, we
conclude that the plaintiffs have pleaded allegations
sufficient to survive a motion to strike and are entitled
to have the opportunity to prove their wrongful market-
ing allegations. We affirm the trial court’s judgment
insofar as that court struck the plaintiffs’ claims predi-
cated on all other legal theories.
I
PROCEDURAL HISTORY
The plaintiffs brought the present action in 2014,
seeking damages and unspecified injunctive relief.2 The
defendants include the Bushmaster defendants (Rem-
ington),3 one or more of which is alleged to have manu-
factured the Bushmaster XM15-E2S semiautomatic rifle
that was used in the crimes; the Camfour defendants,4
distributors that allegedly purchased the rifle from Rem-
ington and resold it to the Riverview defendants; and
the Riverview defendants,5 retailers that allegedly sold
the rifle to Adam Lanza’s mother, Nancy Lanza, in
March, 2010.6 The gravamen of the plaintiffs’ claims,
which are brought pursuant to this state’s wrongful
death statute, General Statutes § 52-555,7 is that the
defendants (1) negligently entrusted to civilian consum-
ers an AR-15 style assault rifle8 that is suitable for use
only by military and law enforcement personnel, and
(2) violated the Connecticut Unfair Trade Practices Act
(CUTPA), General Statutes § 42-110a et seq.,9 through
the sale or wrongful marketing of the rifle.
The defendants moved to strike the plaintiffs’ com-
plaint, contending that all of the plaintiffs’ claims are
barred by PLCAA. The defendants also argued that, to
the extent that the plaintiffs’ claims sound in negligent
entrustment, the plaintiffs failed to state a legally valid
negligent entrustment claim under Connecticut com-
mon law, and, to the extent that their claims are predi-
cated on alleged CUTPA violations, they are legally
insufficient because, among other things, (1) the plain-
tiffs lack standing to bring a CUTPA action, (2) the
plaintiffs’ claims are time barred by CUTPA’s three year
statute of limitations; see General Statutes § 42-110g
(f); (3) personal injuries and death are not cognizable
CUTPA damages, and (4) the plaintiffs’ CUTPA claims
are simply veiled product liability claims and, therefore,
are barred by General Statutes § 52-572n (a), the exclu-
sivity provision of the Connecticut Product Liability Act
(Product Liability Act).10
In response, the plaintiffs argued that PLCAA does
not confer immunity on the defendants for purposes of
this case because two statutory exceptions to PLCAA
immunity—for claims alleging negligent entrustment
(negligent entrustment exception)11 and for claims
alleging a violation of a statute applicable to the sale
or marketing of firearms (predicate exception)12—apply
to their claims. The plaintiffs further argued that, for
various reasons, the defendants’ state law negligent
entrustment and CUTPA arguments were ill founded.
Although the trial court rejected most of the defen-
dants’ arguments, the court concluded that (1) the plain-
tiffs’ allegations do not fit within the common-law tort
of negligent entrustment, (2) PLCAA bars the plaintiffs’
claims insofar as those claims sound in negligent
entrustment, and (3) the plaintiffs lack standing to bring
wrongful death claims predicated on CUTPA violations
because they never entered into a business relationship
with the defendants. Accordingly, the court granted
in their entirety the defendants’ motions to strike the
plaintiffs’ amended complaint.
On appeal, the plaintiffs challenge each of those con-
clusions.13 For their part, the defendants contend, as
alternative grounds for affirmance, that the trial court
improperly rejected their other CUTPA arguments. We
conclude that the majority of the plaintiffs’ claims were
properly struck insofar as those claims are predicated
on the theory that the sale of the XM15-E2S rifle to
Lanza’s mother or to the civilian market generally con-
stituted either negligent entrustment; see part III of this
opinion; or an unfair trade practice. See part IV B of this
opinion. We also conclude, however, that the plaintiffs
have standing to prosecute their CUTPA claims under
Connecticut law. See part IV A of this opinion. 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 See part V of this opinion.
Accordingly, we affirm in part and reverse in part the
judgment of the trial court and remand the case for
further proceedings.
II
ALLEGED FACTS
Because we are reviewing the judgment of the trial
court rendered on a motion to strike, we must assume
the truth of the following facts, as alleged by the plain-
tiffs.15 Lanza carried out the Sandy Hook massacre using
a Bushmaster XM15-E2S rifle. That rifle is Reming-
ton’s version of the AR-15 assault rifle, which is substan-
tially similar to the standard issue M16 military service
rifle used by the United States Army and other nations’
armed forces, but fires only in semiautomatic mode.
The AR-15 and M16 are highly lethal weapons that are
engineered to deliver maximum carnage with extreme
efficiency. Several features make these rifles espe-
cially well suited for combat and enable a shooter to
inflict unparalleled carnage. Rapid semiautomatic fire
‘‘unleashes a torrent of bullets in a matter of seconds.’’
The ability to accommodate large capacity magazines
allows for prolonged assaults. Exceptional muzzle
velocity makes each hit catastrophic. Indeed, the plain-
tiffs contend, bullets fired from these rifles travel at
such a high velocity that they cause a shockwave to pass
through the body upon impact, resulting in catastrophic
injuries even in areas remote to the direct wound.
Finally, the fact that the AR-15 and M16 are lightweight,
air-cooled, gas-operated, and magazine fed, enabling
rapid fire with limited recoil, means that their lethality is
not dependent on good aim or ideal combat conditions.
These features endow the AR-15 with a lethality that
surpasses even that of other semiautomatic weapons.
‘‘The net effect is more wounds, of greater severity, in
more victims, in less time.’’ That lethality, combined
with the ease with which criminals and mentally unsta-
ble individuals can acquire an AR-15, has made the rifle
the weapon of choice for mass shootings, including
school shootings.
The particular weapon at issue in this case was manu-
factured and sold by the Bushmaster defendants. Some-
time prior to March, 2010, the Bushmaster defendants
sold the rifle to the Camfour defendants. The Camfour
defendants subsequently sold the rifle to the Riverview
defendants, who operate a retail gun store located in
the town of East Windsor.
In March, 2010, Lanza’s mother purchased the rifle
from the Riverview defendants. Lanza, who was seven-
teen years old at the time, had expressed a desire to join
the elite United States Army Rangers unit. His mother
bought the rifle to give to or share with him in order
to connect with him. However, when Lanza turned eigh-
teen on April 22, 2010, he did not enlist in the military.
Still, he gained unfettered access to a military style
assault rifle.
Eight months later, on the morning of December 14,
2012, Lanza retrieved the rifle and ten 30 round maga-
zines. Using a technique taught in the first person
shooter video games that he played, he taped several
of those magazines together to allow for faster reload-
ing. He then drove to Sandy Hook Elementary School.
Just before 9:30 a.m., Lanza shot his way into the
locked school using the XM15-E2S. He immediately shot
and killed Mary Joy Sherlach as well as the school’s
principal. He subsequently shot and wounded two
staff members.
Lanza next entered Classroom 8, where he used the
rifle to kill two adults and fifteen first grade children,
including five of the plaintiffs. Finally, he entered Class-
room 10, where he used the rifle to kill two adults and
five first grade children, including three of the plaintiffs.
Nine children from Classroom 10 were able to escape
when Lanza paused to reload with another magazine.
In total, the attack lasted less than four and one-half
minutes, during which Lanza fired at least 154 rounds
from the XM15-E2S, killing twenty-six and wounding
two others.16
The plaintiffs filed the present action in 2014 seeking
damages and injunctive relief. Each of the counts in
the operative first amended complaint is predicated on
two distinct theories of liability. First, the plaintiffs
contend that the AR-15 is a military grade weapon that
is ‘‘grossly ill-suited’’ for legitimate civilian purposes
such as self-defense and recreation. They also allege
that the AR-15 has become the weapon of choice for
mass shootings and, therefore, that the risks associated
with selling the weapon to the civilian market far out-
weigh any potential benefits. The defendants continued
to sell the XM15-E2S despite their knowledge of these
facts. Therefore, the plaintiffs contend, it was both neg-
ligent and an unfair trade practice for each of the defen-
dants to sell the weapon, knowing that it eventually
would be purchased by a civilian customer who might
share it with other civilian users.
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, specifi-
cally, the weapon’s suitability for offensive combat
missions. The plaintiffs argue that the defendants’ mili-
taristic 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. Con-
sistent with that image, the defendants further pro-
moted 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.17
The plaintiffs further contend that the defendants
unethically promoted their assault weapons for offen-
sive, military style missions by publishing advertise-
ments and distributing product catalogs that (1)
promote the AR-15 as ‘‘the uncompromising choice
when you demand a rifle as mission adaptable as you
are,’’ (2) depict soldiers moving on patrol through jun-
gles, armed with Bushmaster rifles, (3) feature the slo-
gan ‘‘[w]hen you need to perform under pressure,
Bushmaster delivers,’’ superimposed over the silhou-
ette of a soldier holding his helmet against the backdrop
of an American flag, (4) tout the ‘‘military proven perfor-
mance’’ of firearms like the XM15-E2S, (5) promote
civilian rifles as ‘‘the ultimate combat weapons system,’’
(6) invoke the unparalleled destructive power of their
AR-15 rifles, (7) claim that the most elite branches of
the United States military, including the United States
Navy SEALs, the United States Army Green Berets and
Army Rangers, and other special forces, have used the
AR-15, and (8) depict a close-up of an AR-15 with the
following slogan: ‘‘Forces of opposition, bow down. You
are single-handedly outnumbered.’’
Finally, with respect to this second, wrongful market-
ing theory of liability, the plaintiffs contend that the
defendants’ marketing of the XM15-E2S to civilians for
offensive assault missions was a substantial factor in
causing the plaintiffs’ injuries. Specifically, they con-
tend that Lanza had dreamed as a child of joining the
elite Army Rangers unit of the United States Army and
was, therefore, especially susceptible to militaristic
marketing. They further contend that he selected the
XM15-E2S for his assault from among an arsenal that
included various less lethal arms—at least three hand-
guns, one shotgun, two bolt action rifles, and three
samurai swords—and that he specifically chose the
XM15-E2S not only for its functional capabilities,
including its assaultive qualities and efficiency in
inflicting mass casualties, but also because of its mar-
keted association with the military.18 Finally, they con-
tend that Lanza was a devoted player of first person
shooter games featuring variants of the XM15-E2S and
that he employed techniques taught in those games to
enhance the lethality of his assault on the school. In
other words, the plaintiffs allege that the attack, had it
occurred at all, would have been less lethal and the
carnage less grievous if Lanza had not been encouraged
by the defendants’ marketing campaign to select the
XM15-E2S as his weapon of choice and taught by violent
video games how to kill with it most efficiently. Addi-
tional facts and procedural history will be set forth
as necessary.
III
NEGLIGENT ENTRUSTMENT
In opposition to the defendants’ motions to strike,
the plaintiffs argued that their claims were not barred
by PLCAA because the claims are predicated on allega-
tions of negligent entrustment and CUTPA violations,
both of which satisfy statutory exceptions to PLCAA
immunity. In this part of the opinion, we consider
whether the trial court correctly concluded that the
plaintiffs’ claims were legally insufficient to the extent
that those claims are predicated on a theory of negligent
entrustment. The trial court concluded both that the
plaintiffs had not sufficiently pleaded a cause of action
in negligent entrustment under Connecticut common
law and, in the alternative, that the plaintiffs’ allegations
did not satisfy PLCAA’s statutory definition of negligent
entrustment. See 15 U.S.C. § 7903 (5) (B) (2012).19 The
plaintiffs challenge both conclusions on appeal.
Because we agree with the trial court that the plaintiffs
have not pleaded a legally sufficient cause of action in
negligent entrustment under our state’s common law,
we need not consider whether negligent entrustment
claims must meet stricter requirements in order to sat-
isfy the federal statutory exception.
The following additional procedural history is rele-
vant to this issue. In response to the defendants’
motions to strike, the plaintiffs argued that their claims
are not precluded by PLCAA because each of their
claims is predicated in part on a theory of negligent
entrustment and PLCAA does not confer immunity on
sellers of firearms in actions for negligent entrustment.
See 15 U.S.C. § 7903 (5) (A) (ii) (2012).20 In its decision
granting the defendants’ motions to strike, the trial
court concluded that an action for negligent entrust-
ment will lie only when the supplier of a dangerous
instrumentality such as a firearm knows or has reason
to know that the direct entrustee is likely to use the
item unsafely. Because the plaintiffs did not allege that
there was any specific reason to believe that the Cam-
four defendants (as direct entrustees of the Reming-
ton defendants), the Riverview defendants (as direct
entrustees of the Camfour defendants), or Lanza’s
mother (as a direct entrustee of the Riverview defen-
dants) was incompetent to operate the XM15-E2S or had
a propensity to use the weapon in an unsafe manner,
the court granted all of the defendants’ motions to strike
with respect to the plaintiffs’ negligent entrustment the-
ories of liability.
We commence our review of this issue with a brief
discussion of the history of and principles that animate
the tort of negligent entrustment. The cause of action
for negligent entrustment represents a departure from
the general rule that an individual cannot be held liable
for the conduct of others. It reflects a legitimate societal
concern that a person in possession of a dangerous
instrument should bear the responsibility of exercising
care when entrusting that instrument to another, given
the serious risk to society if items like firearms or auto-
mobiles should fall into unfit hands. See J. Fisher, Com-
ment, ‘‘So How Do You Hold This Thing Again?: Why
the Texas Supreme Court Should Turn the Safety off
the Negligent Entrustment of a Firearm Cause of
Action,’’ 46 Tex. Tech. L. Rev. 489, 495, 501 (2014). The
primary question that we must resolve is whether these
principles apply only when the entrustor believes or
has specific reason to believe that the direct entrustee
is likely to use the item unsafely or, rather, whether
they also apply when it is reasonably foreseeable that
the entrustment ultimately will lead to injurious use,
whether by the direct entrustee or by some unknown
third party.21 If the former, then the trial court properly
found for the defendants on this issue as a matter of
law; if the latter, then the plaintiffs are correct that the
plaintiffs’ claim presents an issue of fact to be decided
by a jury.
Although the idea that it may be wrong to entrust a
weapon or other dangerous item to one likely to misuse
it is as old as civilization,22 the common-law tort of
negligent entrustment traces its origins to Dixon v. Bell,
105 Eng. Rep. 1023 (K.B. 1816). See B. Todd, ‘‘Negligent
Entrustment of Firearms,’’ 6 Hamline L. Rev. 467, 467
and n.1 (1983). In Dixon, the defendant sent a preado-
lescent girl to retrieve a loaded gun, resulting in the
accidental shooting of the plaintiff’s son. See Dixon v.
Bell, supra, 1023. In upholding a verdict for the plaintiff
that the defendant was liable for entrusting the girl
with the care and custody of the weapon, the court
recognized that ‘‘he well [knew] that the said [girl] was
too young, and an unfit and improper person to be sent
for the gun . . . .’’ Id.
American courts began applying the doctrine of negli-
gent entrustment in the 1920s, following the advent of
the mass produced automobile; see J. Fisher, supra, 46
Tex. Tech. L. Rev. 493; and Connecticut first recognized
the common-law cause of action in Turner v. American
District Telegraph & Messenger Co., 94 Conn. 707, 110
A. 540 (1920). In that case, the defendant security com-
pany entrusted a loaded pistol to an employee who later
instigated a fight with and ultimately shot the plaintiff,
a customer’s night watchman. Id., 708–11 (preliminary
statement of facts). This court held that there was insuf-
ficient evidence to support a verdict for the plaintiff on
his negligent entrustment claim because there was not
‘‘even a scintilla of evidence that the defendant had or
ought to have had knowledge or even suspicion that
[its employee] possessed any of the traits . . . attrib-
uted to him by the plaintiff,’’ including that ‘‘he was a
reckless person, liable to fall into a passion, and unfit
to be [e]ntrusted with a deadly weapon . . . .’’ Id., 716.
‘‘Without this vitally important fact,’’ the court con-
cluded, ‘‘the plaintiff’s claim falls to the ground
. . . .’’ Id.
Other Connecticut cases decided in the early twenti-
eth century, although not always expressly resolved
under the rubric of negligent entrustment, also sug-
gested that a person can be held liable for third-party
injuries resulting from another’s use of a dangerous
item only if the entrustment of that item was made with
actual or constructive knowledge that misuse by the
entrustee was foreseeable. In Wood v. O’Neil, 90 Conn.
497, 97 A. 753 (1916), for example, this court held that
no cause of action in negligence could be maintained
against the parents of a fifteen year old boy who acci-
dentally shot a companion with a shotgun because the
parents, in permitting the boy to use the gun, had no
specific knowledge that he ‘‘was possessed of a marked
careless disposition.’’ Id., 500.
Subsequently, in Greeley v. Cunningham, 116 Conn.
515, 165 A. 678 (1933), we articulated the standards that
govern a negligent entrustment action in the context
of automobiles, which since has become the primary
context in which such claims have arisen. See generally
J. Fisher, supra, 46 Tex. Tech. L. Rev. 489. In Greeley, the
plaintiff alleged that the defendant had been negligent
in entrusting his car to an unlicensed driver, who subse-
quently caused an accident while attempting to pass the
plaintiff’s vehicle. See Greeley v. Cunningham, supra,
517–18. ‘‘[Although] liability cannot be imposed [on] an
owner merely because he [e]ntrusts [his automobile]
to another to drive [on] the highways,’’ the court
explained, ‘‘[i]t is . . . coming to be generally held that
the owner may be liable for injury resulting from the
operation of an automobile he loans to another when
he knows or ought reasonably to know that the one to
whom he [e]ntrusts it is so incompetent to operate it,
by reason of inexperience or other cause, that the owner
ought reasonably to anticipate the likelihood that in its
operation injury will be done to others.’’ (Emphasis
added.) Id., 518. This court proceeded to set forth the
elements of a cause of action sounding in negligent
entrustment of an automobile: (1) the owner of an auto-
mobile entrusts it to another person (2) whom the
owner knows or should reasonably know is so incompe-
tent to operate it that injury to others should reasonably
be anticipated, and (3) such incompetence results in
injury. Id., 520.
Since this court decided Wood, Turner, and Greeley, it
never has suggested that a cause of action for negligent
entrustment—whether involving a vehicle, a weapon,
or some other dangerous item—will lie in the absence
of evidence that the direct entrustee is likely to use the
item unsafely. Most jurisdictions that have recognized
a cause of action in negligent entrustment likewise
require that the actor have actual or constructive knowl-
edge that the specific person to whom a dangerous
instrumentality is directly entrusted is unfit to use it
properly. See, e.g., J. Fisher, supra, 46 Tex. Tech. L.
Rev. 496; B. Todd, supra, 6 Hamline L. Rev. 467; S. Beal,
‘‘Saving Negligent Entrustment Claims,’’ Trial, Febru-
ary, 2007, p. 35.
In accordance with the majority view, this also is the
rule set forth in the Restatement (Second) of Torts.
Section 308 of the Restatement (Second) provides that
‘‘[i]t is negligence to permit a third person to use a thing
. . . [that] is under the control of the actor, if the actor
knows or should know that such person intends or is
likely to use the thing . . . in such a manner as to
create an unreasonable risk of harm to others.’’ (Empha-
sis added.) 2 Restatement (Second), Torts § 308, p. 100
(1965). Section 390, which further defines the tort of
negligent entrustment, provides that ‘‘[o]ne who sup-
plies . . . a chattel for the use of another whom the
supplier knows or has reason to know to be likely
because of his youth, inexperience, or otherwise, to use
it in a manner involving unreasonable risk of physical
harm to himself and others . . . is subject to liability
for physical harm resulting to them.’’ 2 id., § 390, p. 314;
see also B. Todd, supra, 6 Hamline L. Rev. 467 and n.5.
We take it as well established, then, that, in order to
prove negligent entrustment, a plaintiff must demon-
strate that (1) the defendant has entrusted a potentially
dangerous instrumentality to a third person (2) whom
the entrustor knows or should know intends or is likely
to use the instrumentality in a manner that involves
unreasonable risk of physical harm, and (3) such use
does in fact cause harm to the entrustee or others.
The rule that a cause of action for negligent
entrustment will lie only when the entrustor knows or
has reason to know that the direct entrustee is likely
to use a dangerous instrumentality in an unsafe manner
would bar the plaintiffs’ negligent entrustment claims.
Specifically, there is no allegation in this case that there
was any reason to expect that Lanza’s mother was likely
to use the rifle in an unsafe manner.23
The plaintiffs, recognizing that they cannot prevail
under this rule, invite us to adopt a different framework,
one ‘‘that focuses on the existence of a nexus between
the defendant and the dangerous user—rather than the
number of steps between them . . . .’’ In other words,
their proposal is that a party alleging negligent
entrustment need prove only that it was reasonably
foreseeable that, following the initial entrustment of a
dangerous instrumentality, that instrumentality ulti-
mately would come into the possession of someone
who would use it in an unsafe manner. A jury could
find that standard satisfied in this case, they contend,
because (1) Remington allegedly marketed its assault
rifles to young men who play violent, first person
shooter video games and who, as a class, have a history
of using such rifles in real mass shootings, and (2)
there is evidence that individuals who legally purchase
weapons such as the AR-15 often share the weapons
with family members, including young men.
We decline the plaintiffs’ invitation to stretch the
doctrine of negligent entrustment so far beyond its his-
torical moorings. We recognize that some of our sister
state courts have permitted negligent entrustment
actions to proceed when, although there was no indica-
tion that the direct entrustee was incompetent to use
a dangerous item, there was reason to believe that the
entrustee would in turn share the item with a specific
third party who would misuse it. This has been the case,
for example, when a parent or other agent purchased
a weapon or vehicle for a child who was present at the
place and time of sale.24 We need not decide whether
and to what extent Connecticut would recognize a
cause of action for negligent entrustment under such
circumstances, however, because, in the present case,
the plaintiffs do not allege that any of the defendants
possessed any knowledge or had any specific reason
to believe either that Lanza’s mother would share the
XM15-E2S with her son or that he was especially likely
to operate it unsafely or illegally. In any event, the
plaintiffs have failed to cite to a single case, from any
jurisdiction, that allowed an action for negligent
entrustment to proceed when the nexus between a man-
ufacturer of a product and the person who ultimately
used that product in an unsafe manner was as attenu-
ated as it is in the present case.25
We also recognize that there is authority for the prop-
osition that entrustment may be deemed negligent when
the entrustor has no specific knowledge regarding the
entrustee’s personal competence or character but
knows that the entrustee is a member of a class that
is notoriously unfit to safely utilize the entrusted item.
See 2 Restatement (Second), supra, § 308, comment (b),
p. 100. The plaintiffs argue that we should apply that
principle in this case because (1) gun buyers as a class
are known to sometimes share their weapons with fam-
ily members, including young males, and (2) young
males, in turn, are known to sometimes use assault
weapons to commit mass shootings. Once again, we
decline the invitation to so dramatically expand the
scope of negligent entrustment liability.
As we noted, the tort of negligent entrustment saw
its florescence, if not its modern genesis, in the advent
of the mass produced automobile. See B. Todd, supra,
6 Hamline L. Rev. 467; A. Cholodofsky, Note, ‘‘Torts:
Does the Negligent Entrustment Doctrine Apply to Sell-
ers?’’ 39 U. Fla. L. Rev. 925, 928 (1987). In some
instances, a person may be unsuited to drive an automo-
bile because he is reckless, or inebriated, or otherwise
distinctly unfit to drive safely on the public roads. See
A. Cholodofsky, supra, 926 and nn. 5–6. It also is a
matter of common sense and common knowledge, how-
ever, that certain classes of people—e.g., young chil-
dren and blind persons—are inherently unfit to drive.
Our laws recognize as much. See General Statutes § 14-
36 (c) and (e) (establishing, among other things, age
and vision screening requirements for motor vehicle
operator’s permit or license). Accordingly, one may be
negligent for entrusting an automobile to such users
even in the absence of any particular knowledge about
their individual driving skills, experience, or tempera-
ment. A jury reasonably might conclude that the same
is true with respect to firearms and other weapons and
dangerous equipment. See B. Todd, supra, 468–69.
The plaintiffs’ theory, however, is fundamentally dif-
ferent. They do not contend that all gun buyers such
as Lanza’s mother, or young men such as Lanza, are
incapable of safely operating an AR-15. The plaintiffs
do not even contend that such users usually or even
frequently operate such weapons unsafely or unlaw-
fully. Rather, the plaintiffs contend that it is objectively
unreasonable to legally sell an assault weapon to an
adult buyer, for no other reason than that some small
subset of buyers will share weapons with their young
adult sons and some much smaller subset of young
adult males will use those weapons to commit terrible,
random crimes. The only plausible way to construe that
claim—and we do not understand the plaintiffs to deny
this—is that any commercial sale of assault weapons
to civilian users constitutes negligent entrustment
because the social costs of such sales outweigh the
perceived benefits. Other courts have rejected such a
theory, as do we. See, e.g., McCarthy v. Sturm, Ruger &
Co., 916 F. Supp. 366, 370 (S.D.N.Y. 1996), aff’d sub
nom. McCarthy v. Olin Corp., 119 F.3d 148 (2d Cir.
1997); Merrill v. Navegar, Inc., 26 Cal. 4th 465, 483–84,
28 P.3d 116, 110 Cal. Rptr. 2d 370 (2001); see also Phil-
lips v. Lucky Gunner, LLC, 84 F. Supp. 3d 1216, 1226
(D. Colo. 2015) (rejecting theory that unmediated online
sales of hazardous items represent negligent entrust-
ment), appeal dismissed, United States Circuit Court
of Appeals, Docket No. 15-1153 (10th Cir. July 21, 2015).
Accordingly, the plaintiffs’ action cannot proceed under
the negligent entrustment exception to immunity
under PLCAA.
IV
WRONGFUL DEATH AND CUTPA:
ISSUES OF STATE LAW
We turn next to the question of whether the trial
court properly granted the defendants’ motion to strike
the plaintiffs’ wrongful death claims insofar as those
claims are predicated on alleged CUTPA violations.
Because we have concluded that the plaintiffs have not
pleaded a legally sufficient negligent entrustment claim
under Connecticut common law, PLCAA will bar the
present action unless (1) the plaintiffs have pleaded a
cognizable CUTPA violation, and (2) CUTPA consti-
tutes a predicate statute for purposes of 15 U.S.C. § 7903
(5) (A) (iii).
In their motions to strike, the defendants argued,
among other things, that (1) the plaintiffs’ claims were
barred by CUTPA’s three year statute of limitations,
(2) damages for personal injuries and death resulting
therefrom are not cognizable under CUTPA, (3) the
plaintiffs’ CUTPA claims are precluded by the Product
Liability Act; see General Statutes § 52-572n (a); and
(4) CUTPA is not a valid predicate statute for purposes
of PLCAA. The trial court rejected each of these argu-
ments. The court agreed with the defendants, however,
that CUTPA does not afford protection to persons who
do not have a consumer or other commercial relation-
ship with the alleged wrongdoer. Accordingly, the court
concluded that the plaintiffs lacked standing to pursue
wrongful death claims predicated on CUTPA violations.
On appeal, the plaintiffs contend that the trial court
improperly struck their claims for lack of standing to
pursue them under CUTPA. For their part, the defen-
dants claim that the trial court’s judgment can be
affirmed on the alternative ground that the court’s other
determinations were improper.
As an initial matter, we reiterate that the plaintiffs’
CUTPA based wrongful death claims are predicated on
at least two fundamentally distinct theories of liability.
First, the plaintiffs contend that the defendants violated
CUTPA by selling the XM15-E2S to the civilian market
despite their knowledge that there is no legitimate civil-
ian use for such a weapon, that assault weapons such
as the AR-15 pose unreasonable risks when used by
civilians, and that individuals unfit to operate such
weapons likely would gain access to them. In other
words, the plaintiffs allege, in essence, that any sale of
any assault weapon to any civilian purchaser in Con-
necticut is, ipso facto, an unfair trade practice under
CUTPA.
Second, the plaintiffs contend that the defendants
violated CUTPA by advertising and marketing the
XM15-E2S in an unethical, oppressive, immoral, and
unscrupulous manner that promoted illegal offensive
use of the rifle. Specifically, they allege that the defen-
dants:
• promoted use of the XM15-E2S for offensive,
assaultive purposes—specifically, for ‘‘wag-
ing war and killing human beings’’—and not
solely for self-defense, hunting, target prac-
tice, collection, or other legitimate civilian
firearm uses
• extolled the militaristic qualities of the XM15-
E2S
• advertised the XM15-E2S as a weapon that
allows a single individual to force his multiple
opponents to ‘‘bow down’’
• marketed and promoted the sale of the XM15-
E2S with the expectation and intent that it
would be transferred to family members and
other unscreened, unsafe users after its pur-
chase.
The plaintiffs further allege in this regard that such
promotional tactics were causally related to some or
all of the injuries that were inflicted during the Sandy
Hook massacre.
For the reasons that follow, we conclude that the
trial court improperly granted the defendants’ motion
to strike these allegations in their entirety. We agree
with the plaintiffs that the trial court improperly con-
cluded that they lack standing to pursue any of their
CUTPA claims against the defendants. With respect to
the plaintiffs’ first theory of CUTPA liability—that the
sale of AR-15s to the civilian population is ipso facto
unfair—we agree with the defendants that the trial
court’s judgment can be affirmed on the alternative
ground that the plaintiffs’ claim is time barred under
the CUTPA statute of limitations. Cf. footnote 14 of this
opinion. However, with respect to the plaintiffs’ second
theory of liability—that the defendants’ wrongful mar-
keting of the XM15-E2S for illegal, offensive purposes
was a causal factor in increasing the casualties of the
Sandy Hook massacre—we find the defendants’ various
alternative bases for affirmance unpersuasive.
A
CUTPA Standing
Although the plaintiffs brought their claims pursuant
to the wrongful death statute; General Statutes § 52-
555; a wrongful death action will lie only when the
deceased person could have brought a valid claim for
the injuries that resulted in death if he or she had sur-
vived. See part IV B of this opinion. Accordingly, to
survive a motion to strike, the plaintiffs must be able
to establish that they have standing to pursue a CUTPA
claim for their injuries. We first consider whether the
trial court properly concluded that the plaintiffs lacked
standing to bring the present action under CUTPA
because they were third-party victims who did not have
a direct consumer, commercial, or competitor relation-
ship (business relationship or privity requirement) with
the defendants. 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. Accord-
ingly, we agree with the plaintiffs that the trial court
improperly struck their CUTPA based wrongful death
claims.
Whether one must have entered into a consumer or
commercial relationship with an alleged wrongdoer in
order to have standing to bring a CUTPA action presents
a question of statutory interpretation. The plain mean-
ing of the statutory text must be our lodestar. See Gen-
eral Statutes § 1-2z.
General Statutes § 42-110g (a) creates a private right
of action for persons injured by unfair trade practices
and provides in relevant 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.
. . .’’ (Emphasis added.) On its face, the statute plainly
and unambiguously authorizes anyone who has suf-
fered an ascertainable financial loss as a result of an
unfair trade practice to bring a CUTPA action. Nothing
in the text of the statute indicates that the right afforded
by § 42-110g (a) is enjoyed only by persons who have
done business of some sort with a defendant.
Even if we were to conclude that the statute is ambig-
uous in this regard, we perceive nothing in the legisla-
tive history or purpose of the statute that would support
the defendants’ theory that something more than an
ascertainable financial loss caused by a prohibited act
is necessary to confer standing under CUTPA. When
CUTPA originally was enacted in 1973, the statute
authorized private actions for ‘‘[a]ny person who pur-
chases or leases goods or services from a seller or lessor
primarily for personal, family or household purposes
and thereby suffers any ascertainable loss of money or
property, real or personal, as a result . . . .’’ (Emphasis
added.) Public Acts 1973, No. 73-615, § 7 (P.A. 73-615),
codified as amended at General Statutes (Rev. to 1975)
§ 42-110g (a). It is clear, then, that a direct consumer
relationship initially was required in order to bring a
CUTPA action.
Over the following decade, however, a series of
amendments eliminated that privity requirement. Of
particular note are the 1975 and 1979 amendments. In
1975, the legislature amended the statute to confer
standing on two distinct classes of plaintiffs. See Public
Acts 1975, No. 75-618, § 5 (P.A. 75-618). As amended,
the statute provided that CUTPA actions can be brought
either by ‘‘any person who purchases or leases goods
or services from a seller or lessor primarily for personal,
family or household purposes and thereby suffers any
ascertainable loss . . . as a result’’ or by ‘‘[a]ny person
who suffers any ascertainable loss of money or prop-
erty, real or personal, as a result [of a prohibited prac-
tice] . . . .’’ P.A. 75-618, § 5, codified as amended at
General Statutes (Rev. to 1977) § 42-110g (a). In other
words, the legislature conferred standing on an addi-
tional category of plaintiffs, namely, those whose injur-
ies were not the result of a direct consumer purchase
or lease of goods or services. Presumably recognizing
that the original category of CUTPA plaintiffs (con-
sumer direct purchasers and lessors) had become
redundant insofar as it was merely a subset of the new,
broader category that had been added in the 1975
amendments—i.e., any person who suffers an injury as a
result of a prohibited practice—the legislature amended
the statute again in 1979 to eliminate the reference to
direct purchasers. See Public Acts 1979, No. 79-210, § 1,
codified at General Statutes (Rev. to 1981) § 42-110g (a).
As we previously have explained; see Vacco v. Microsoft
Corp., 260 Conn. 59, 86–87 and n.30, 793 A.2d 1048
(2002); it is clear from this history that, although a
business relationship initially was required to bring a
CUTPA action, the legislature chose to eliminate that
privity requirement and instead conferred standing on
any person who could establish an ascertainable loss
as a result of an unfair trade practice.
This conclusion finds additional support in the legis-
lative proceedings pertaining to the various 1970s
amendments. From the start, CUTPA prohibited unfair
trade practices associated not only with the actual sale
and distribution of products and services, but also with
the advertising and offering of those products and ser-
vices for sale.26 However, when the House of Represen-
tatives debated Substitute House Bill No. 5613, the bill
that ultimately became No. 78-346 of the 1978 Public
Acts, several representatives expressed concerns that
the original file copy of that bill might be understood
to mean that unfair advertising would no longer consti-
tute a prohibited trade practice. In explaining the need
to amend the bill, Representative Raymond C. Ferrari
cautioned that CUTPA should not be watered down so
as to ‘‘require the actual sale of an item as opposed to
simply allow[ing] the enforcement under an advertise-
ment . . . .’’ 21 H.R. Proc., Pt. 10, 1978 Sess., p. 3987.
Representative Robert F. Frankel expressed similar
sentiments. See 21 H.R. Proc., Pt. 11, 1978 Sess., p.
4319 (‘‘we would actually be rolling back some of the
coverage of [CUTPA] wherein we would be requiring
a sale of advertised products before the Commissioner
[of Consumer Protection] could become involved’’).
The fact that the legislature sought to ensure that adver-
tising alone—even advertising that never results in a
sale—could constitute a prohibited practice suggests
that an actual business relationship was not deemed to
be a precondition for a CUTPA action following the
1975 amendments.
It is true that the primary concern of those representa-
tives during the 1978 hearings was to prevent the
Department of Consumer Protection (department) from
being stripped of its authority to aggressively enforce
CUTPA violations relating to false or misleading adver-
tising. It is, of course, possible that the legislature
wanted the department to be able to curtail wrongful
advertising campaigns at their inception, without hav-
ing to wait until consumers were harmed before taking
legal action, but intended that private individuals not
have standing to sue unless and until they had pur-
chased goods or services in reliance on such advertise-
ments. It bears emphasis, however, that the legislative
history of CUTPA is replete not only with references
to the broad scope and remedial nature of the act27 but
also with statements specifically indicating a legislative
awareness that the department and the Office of the
Attorney General were not equipped to prosecute every
unfair trade practice and a concomitant belief that it
was important to incentivize broad enforcement action
by private litigants.28 See, e.g., Hinchliffe v. American
Motors Corp., 184 Conn. 607, 615 and nn. 4–5, 618, 440
A.2d 810 (1981).
More directly on point is the testimony of Assistant
Attorney General Arnold Feigen, which was offered on
behalf of Attorney General Carl Ajello and Commis-
sioner of Consumer Protection Mary Heslin, before the
General Law Committee. See Conn. Joint Standing Com-
mittee Hearings, General Law, Pt. 4, 1979 Sess., p. 1159.
Testifying in favor of the 1979 amendment that elimi-
nated the direct purchaser requirement language,
Feigen explained that ‘‘[n]umerous arguments have
been raised in both state and federal courts that [a]
plaintiff, in order to sue, must be a purchaser or a lessee
of a seller . . . .’’ Id. ‘‘The amendment,’’ he opined,
‘‘will now allow a suit by any person who suffers any
ascertainable loss of money or property.’’ Id. Those
statements, although not dispositive of the question
before us, provide support for the plaintiffs’ theory that
the legislature intended to eliminate the business rela-
tionship requirement when it amended CUTPA. See
Vacco v. Microsoft Corp., supra, 260 Conn. 86–87 and
n.30.
The defendants, while implicitly acknowledging that
the plain language of § 42-110g (a) no longer imposes
a business relationship requirement, offer two argu-
ments as to why we should continue to read such a
requirement into the statute. First, they contend that
the trial court properly concluded that our prior cases
and those of the Appellate Court have recognized a
business relationship requirement and that principles
of stare decisis and legislative acquiescence counsel
against departing from those decisions. Second, the
defendants contend that prudential concerns support
limiting CUTPA standing to persons who have a direct
business relationship with the alleged wrongdoer. We
consider each argument in turn.
In support of its conclusion that our cases impose a
business relationship requirement, the trial court relied
on this court’s decisions in Vacco v. Microsoft Corp.,
supra, 260 Conn. 59, 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).
Neither decision compels such a result.
In Vacco, we recognized that the legislature, by
‘‘ ‘deleting all references to ‘‘purchasers, sellers, lessors,
or lessees’’ ’ ’’ in § 42-110g (a) in 1979, had eliminated
CUTPA’s privity requirement. Vacco v. Microsoft Corp.,
supra, 260 Conn. 88. We proceeded to clarify, however,
that the elimination of the privity requirement did not
mean that anyone could bring a CUTPA action, no mat-
ter how attenuated the connection between his or her
injuries and a defendant’s allegedly unfair trade prac-
tices. ‘‘Notwithstanding the elimination of the privity
requirement,’’ we explained, ‘‘it strains credulity to con-
clude that CUTPA is so formless as to provide redress
to any person, for any ascertainable harm, caused by
any person in the conduct of any trade or commerce.’’
(Internal quotation marks omitted.) Id. We further
observed, however, that CUTPA liability could reason-
ably be cabined in the same manner as with common-
law tort actions: ‘‘[N]otwithstanding the broad language
and remedial purpose of CUTPA, we have applied tradi-
tional common-law principles of remoteness and proxi-
mate causation to determine whether a party has
standing to bring an action under CUTPA.’’ (Footnote
omitted.) Id. Notably, we cited Ganim v. Smith & Wes-
son Corp., 258 Conn. 313, 780 A.2d 98 (2001), as an
example of a case in which the alleged harms suffered
by the plaintiffs—the city of Bridgeport and its mayor—
as a result of gun violence were ‘‘too remote and deriva-
tive’’ with respect to the challenged conduct for the
plaintiffs to have standing to bring a CUTPA claim.
Vacco v. Microsoft Corp., supra, 88–89, citing Ganim
v. Smith & Wesson Corp., supra, 344, 365. We proceeded
in Vacco to apply the same three part remoteness analy-
sis that we had applied in Ganim, ultimately concluding
that the plaintiff lacked standing because his injuries
were too remote in relation to the defendant’s allegedly
anticompetitive conduct. Vacco v. Microsoft Corp.,
supra, 90–92; see Ganim v. Smith & Wesson Corp.,
supra, 353. Accordingly, Vacco stands for the proposi-
tion that standing to bring a CUTPA claim will lie only
when the purportedly unfair trade practice is alleged
to have directly and proximately caused the plaintiff’s
injuries. This remoteness requirement serves the same
function as a privity requirement, as it mitigates any
concerns associated with imposing limitless liability on
CUTPA defendants.
Although our decision in Ventres could be read to
suggest that the plaintiff must have a business relation-
ship with the defendant, a closer review indicates that
it does not stand for this sweeping proposition. In that
case, a land trust and a conservancy (property owners)
alleged that the named defendant, Goodspeed Airport,
LLC, among other defendants, had violated CUTPA by
trespassing on the property owners’ land. See Ventres
v. Goodspeed Airport, LLC, supra, 275 Conn. 109, 112.
We concluded, as a matter of law, that, even if the
property owners had been able to prove their allega-
tions, none of the alleged conduct would have risen to
the level of a CUTPA violation. See id., 156–58.
As an alternative, independent basis for upholding
the trial court’s decision to strike the property owners’
CUTPA claims, we briefly considered the property own-
ers’ contention that a CUTPA plaintiff is not required
to allege any business relationship with a defendant,
summarily rejecting that claim on the ground that the
property owners had provided no authority for the prop-
osition. Id., 157–58. Significantly, in contrast to the pre-
sent case, Ventres did not involve allegations that a
business relationship between the defendants and a
third party had resulted in the harm alleged. Therefore,
we had no occasion to discuss or apply the proximate
cause analysis set forth in Vacco. See Vacco v. Microsoft
Corp., supra, 260 Conn. 90–92. In other words, there
was no business relationship that could result in any
causal connection to the injury alleged.
Accordingly, the court in Ventres did not hold that
every CUTPA claim requires a business relationship
between a plaintiff and a defendant. Indeed, we did not
analyze that issue, and at no point did we examine
either the text or the legislative history of the statute,
both of which, as we previously explained, strongly
suggest that the legislature did not intend to impose a
privity requirement. We thus conclude that the princi-
ples of stare decisis and legislative acquiescence do not
preclude us from construing § 42-110g (a) de novo in
the present case to address this question. See Igartua
v. Obama, 842 F.3d 149, 160 (1st Cir. 2016) (Torruella,
J., concurring in part and dissenting in part) (‘‘[c]onsid-
ering the cursory treatment given to this issue by the
. . . panel [in the prior decision], our hands are not
tied by stare decisis’’), cert. denied sub nom. Igartua
v. Trump, U.S. , 138 S. Ct. 2649, 201 L. Ed. 2d
1050 (2018).
Next, we consider the defendants’ argument that this
court has, for prudential reasons, set various limitations
on the types of parties that may bring CUTPA claims.
The defendants contend that similar policy rationales
counsel in favor of imposing a business relationship
requirement. In two of the cases that the defendants
cite in support of this proposition, however, this court
concluded that CUTPA simply did not govern the con-
duct at issue, and, therefore, we did not consider the
question of standing. See Haynes v. Yale-New Haven
Hospital, 243 Conn. 17, 34, 699 A.2d 964 (1997) (medical
malpractice claims are not subject to CUTPA); Russell
v. Dean Witter Reynolds, Inc., 200 Conn. 172, 180, 510
A.2d 972 (1986) (CUTPA does not apply to deceptive
practices in purchase and sale of securities). In the third
case on which the defendants rely, namely, Jackson v.
R. G. Whipple, Inc., 225 Conn. 705, 627 A.2d 374 (1993),
this court concluded that third parties lacked CUTPA
standing only in the context of the unique professional
relationship between attorneys and their clients. See
id., 729. Accordingly, the cases that the defendants cite,
which address unique professional service contexts and
relationships, provide little support for the general
proposition that CUTPA does not confer standing out-
side the limited confines of a business relationship
between the CUTPA plaintiff and defendant.
We need not decide today whether there are other
contexts or situations in which parties who do not share
a consumer, commercial, or competitor relationship
with an alleged wrongdoer may be barred, for pruden-
tial or policy reasons, from bringing a CUTPA action.
What is clear is that none of the rationales that underlie
the standing doctrine, either generally or in the specific
context of unfair trade practice litigation, supports the
denial of standing to the plaintiffs in this case. ‘‘Standing
. . . is a practical concept designed to ensure that
courts and parties are not vexed by suits brought to
vindicate nonjusticable interests and that judicial deci-
sions [that] may affect the rights of others are forged
in hot controversy, with each view fairly and vigorously
represented.’’ (Internal quotation marks omitted.)
Slimp v. Dept. of Liquor Control, 239 Conn. 599, 609, 687
A.2d 123 (1996). As we explained in Ganim v. Smith &
Wesson Corp., supra, 258 Conn. 313, there are several
reasons why standing traditionally has been restricted
to those parties directly injured by a defendant’s con-
duct: ‘‘First, the more indirect an injury is, the more
difficult it becomes to determine the amount of [the]
plaintiff’s damages attributable to the wrongdoing as
opposed to other, independent factors. Second, recog-
nizing claims by the indirectly injured would require
courts to adopt complicated rules apportioning dam-
ages among plaintiffs removed at different levels of
injury from the violative acts, in order to avoid the risk
of multiple recoveries. Third, struggling with the first
two problems is unnecessary [when] there are directly
injured parties who can remedy the harm without these
attendant problems.’’ (Internal quotation marks omit-
ted.) Id., 353.
Ganim, in fact, provides an instructive contrast to
the present case. In Ganim, the mayor and the city of
Bridgeport brought an action against handgun manufac-
turers, trade associations, and retail gun sellers to
recoup various municipal costs associated with gun
violence, including increased police and emergency ser-
vices, loss of investment, and victimization of Bridge-
port’s citizens. Id., 315–16, 326–27. We concluded that
the municipal plaintiffs lacked standing under CUTPA
because the ‘‘harms claimed . . . [were too] indirect,
remote and derivative with respect to the defendants’
conduct . . . .’’ Id., 353. Moreover, we observed that
one easily could identify several sets of potential plain-
tiffs who were more directly harmed by the defendants’
alleged misconduct than was the city: ‘‘[A]ll [of] the
homeowners in Bridgeport who have been deceived
by the defendants’ misleading advertising, all of the
persons who have been assaulted or killed by the misuse
of the handguns, and all of the families of the persons
who committed suicide using those handguns.’’ Id., 359.
In the present case, by contrast, the plaintiffs allege
that the defendants’ wrongful advertising magnified the
lethality of the Sandy Hook massacre by inspiring Lanza
or causing him to select a more efficiently deadly
weapon for his attack. Proving such a causal link at
trial may prove to be a Herculean task.29 But if it can
be proven—and the posture in which this case reaches
us requires that we assume it can30—the link between
the allegedly wrongful conduct and the plaintiffs’ injur-
ies would be far more direct and less attenuated than
in Ganim.
More fundamentally, in this case, unlike in Ganim,
it is the direct victims of gun violence who are challeng-
ing the defendants’ conduct; no private party is better
situated than the plaintiffs to bring the action. A claim
that a defendant’s advertisements unethically promote
illegal conduct is fundamentally different from one
alleging false or misleading advertising. The primary
harm associated with the latter is that a consumer will
rely to his or her detriment on the advertiser’s represen-
tations; it is in the misinformed purchase of the product
or service that the wrong becomes fully manifest. Actual
customers, then, typically will be the parties most
directly and adversely impacted by the alleged wrong.
The gravamen of a wrongful advertising claim, by
contrast, is that an advertisement models or encourages
illegal or unsafe behavior. In such instances, the imme-
diate victims are just as likely to be third parties who
are not customers, whether it be individuals who engage
in inappropriate conduct inspired by the advertisements
or the direct victims of that conduct. For example, when
an especially racy sports car commercial disclaims,
‘‘professional driver, closed course, do not attempt this
at home,’’ the perceived risk is not merely—or even
primarily—that viewers will purchase that particular
vehicle and drive it unsafely as a result of the commer-
cial. Of at least equal concern is the possibility that
noncustomer viewers will emulate the commercial
when driving their own vehicles, violating motor vehicle
laws, and possibly causing injury to themselves or oth-
ers, including passengers or pedestrians.
In the present case, the wrong charged is that the
defendants promoted the use of their civilian assault
rifles for offensive, military style attack missions. The
most directly foreseeable harm associated with such
advertising is that innocent third parties could be shot
as a result. The decedents are the ones who got shot.
If the defendants’ marketing materials did in fact
inspire or intensify the massacre, then there are no
more direct victims than these plaintiffs; nor is there
any customer of the defendants with a better claim to
standing. That is to say, if these plaintiffs cannot test
the legality of the defendants’ advertisements pursuant
to § 42-110g, then no one can. For these reasons, we
conclude that the trial court improperly determined
that the plaintiffs lack standing to assert wrongful death
claims predicated on the defendants’ alleged CUTPA
violations.
B
Statute of Limitations
Having concluded that the plaintiffs have standing to
bring the present action, we must turn our attention to
whether the judgment of the trial court dismissing the
plaintiffs’ action may be affirmed on an alternative
ground. Although its determination that the plaintiffs
lacked standing to bring wrongful death claims predi-
cated on alleged CUTPA violations disposed of the case
before it, the trial court considered, in the interest of
completeness, the defendants’ arguments regarding the
legal sufficiency of the plaintiffs’ CUTPA claims. We
first consider the defendants’ argument that the plain-
tiffs’ claims are time barred because they did not comply
with CUTPA’s three year statute of limitations.
1
Procedural History
The following additional procedural history is rele-
vant to this claim. The complaint alleges that Lanza’s
mother purchased the rifle in question in March, 2010,
and that it was manufactured and distributed sometime
prior to that date. Lanza carried out the Sandy Hook
massacre on December 14, 2012, on which date all of the
decedents died. The plaintiffs delivered their summons
and complaint to a state marshal on December 13, 2014.
The defendants moved to strike the plaintiffs’ wrong-
ful death claims on the theory that those claims are
predicated on underlying CUTPA violations and that
private actions brought pursuant to CUTPA are subject
to a three year statute of limitations. See General Stat-
utes § 42-110g (f).31 They argued that, because all of the
relevant transfers of the rifle occurred no later than
March, 2010, and because the present action was not
initiated until more than four years later, in December,
2014, the plaintiffs’ CUTPA claims are time barred.
The trial court, like the defendants, proceeded on the
theory that the date of the alleged CUTPA violations
was, at the very latest, March, 2010, when the Riverview
defendants sold the rifle to Lanza’s mother. The court
was not persuaded, however, that CUTPA is the control-
ling statute of limitations for purposes of the present
action. Rather, the court emphasized that, although the
plaintiffs’ claims were predicated on a theory of liability
sounding in unfair trade practices, those claims were
brought pursuant to § 52-555, the wrongful death stat-
ute. That statute has its own statute of limitations,
which requires that a wrongful death action ‘‘be brought
. . . within two years from the date of death,’’ and its
own statute of repose, which requires that a wrongful
death action ‘‘be brought [no] more than five years from
the date of the act or omission complained of.’’ General
Statutes § 52-555 (a). Because process was served
within two years of the date of the decedents’ deaths
and within five years of the date on which the rifle was
sold, the court concluded that the action would not be
time barred if the statute of limitations contained in
§ 52-555 (a) controls.
The trial court therefore sought to resolve the appar-
ent conflict between the statutes of limitations con-
tained in §§ 42-110g (f) and 52-555 (a). Relying on the
decision of the Appellate Court in Pellecchia v. Connect-
icut Light & Power Co., 139 Conn. App. 88, 90, 54 A.3d
658 (2012) (adopting trial court’s memorandum of deci-
sion in Pellecchia v. Connecticut Light & Power Co.,
52 Conn. Supp. 435, 54 A.3d 1080 [2011]), cert. denied,
307 Conn. 950, 60 A.3d 740 (2013), the trial court con-
cluded that, when a wrongful death claim is predicated
on an underlying theory of liability that is subject to
its own statute of limitations, it is the wrongful death
statute of limitations that controls. Because the court
concluded that the CUTPA statute of limitations did
not apply, and because the action was brought within
two years of the decedents’ deaths and within five years
of the initial sale of the rifle, the court also concluded
that the plaintiffs’ wrongful death claims were timely.
Accordingly, the court did not have reason to consider
whether the plaintiffs’ claims predicated on a wrongful
advertising theory of liability, which could be premised
on conduct postdating the sale of the rifle, were timely.
2
Legal Principles
Turning to the governing legal principles, we first
consider whether the trial court correctly determined
that, when a wrongful death claim is predicated on an
underlying theory of liability that is subject to its own
statute of limitations, the plaintiffs need only satisfy
the statute of limitations contained in § 52-555 (a). The
trial court was correct that, in the ordinary case, § 52-
555 (a) supplies the controlling statute of limitations
regardless of the underlying theory of liability. This
court applied that rule in Giambozi v. Peters, 127 Conn.
380, 16 A.2d 833 (1940), overruled in part on other
grounds by Foran v. Carangelo, 153 Conn. 356, 216 A.2d
638 (1966), in which the court held that the statute of
limitations of the predecessor wrongful death statute,
rather than the limitations provision applicable to medi-
cal malpractice claims, governed in a wrongful death
action based on malpractice. Id., 385; see also Ecker v.
West Hartford, 205 Conn. 219, 245, 530 A.2d 1056 (1987)
(suggesting that statute of limitations contained in § 52-
555 may control in wrongful death actions predicated
on contract and warranty theories of liability). The legis-
lative history of the 1991 amendments to the wrongful
death statute reflecting the current statutory language;
Public Acts 1991, No. 91-238, § 1; makes clear that
Giambozi continues to accurately reflect the intent of
the legislature in this respect. See 34 H.R. Proc., Pt.
14, 1991 Sess., pp. 5170–72, remarks of Representative
Michael P. Lawlor (expressing view that there would
be cases in which plaintiffs would be able to maintain
wrongful death action under 1991 amendment to § 52-
555 even though statute of limitations applicable to
underlying medical malpractice would have run).
As the defendants emphasize, however, it is well
established that different rules apply to statutes, such
as CUTPA, that create a right of action that did not
exist at common law. See Greco v. United Technologies
Corp., 277 Conn. 337, 345 n.12, 890 A.2d 1269 (2006).
For such statutes, we have said that the limitations
provision ‘‘embodies an essential element of the cause
of action created—a condition attached to the right to
sue at all. The liability and the remedy are created by
the same statutes, and the limitations of the remedy
are, therefore, to be treated as limitations of the right.
. . . It follows that the statutory provision or provisions
prescribing the limitation must be strictly observed if
liability is to attach to the claimed offender. Failure to
show such observance results in a failure to show the
existence of a good cause of action.’’ (Internal quotation
marks omitted.) Blakely v. Danbury Hospital, 323
Conn. 741, 748–49, 150 A.3d 1109 (2016); see also id.,
749 (time limitation is ‘‘essential and integral’’ to exis-
tence of cause of action); Avon Meadow Condominium
Assn., Inc. v. Bank of Boston Connecticut, 50 Conn.
App. 688, 699–700, 719 A.2d 66 (time limitation that is
contained within statute that creates right of action that
did not exist at common law is limitation of liability
itself, and, accordingly, CUTPA statute of limitations is
jurisdictional), cert. denied, 247 Conn. 946, 723 A.2d
320 (1998), and cert. denied, 247 Conn. 946, 723 A.2d
320 (1998).
The plaintiffs respond that, regardless of whether the
statute of limitations contained in § 42-110g (f) amounts
to an essential element of a CUTPA cause of action, it
need not be satisfied in the present case because this
is not a CUTPA action. Rather, their claims are wrongful
death claims, for which CUTPA merely provides the
underlying theory of wrongfulness.
That argument, although perhaps facially attractive,
is precluded by a long line of cases holding that Con-
necticut’s wrongful death statute does not create a new
cause of action, independent of any claims that the
decedent might have had during his or her life. Rather,
the wrongful death statute merely allows the adminis-
trator of an estate to append to an already valid claim
an additional element of damages consisting of costs
associated with the decedent’s death. See, e.g., Sand-
erson v. Steve Snyder Enterprises, Inc., 196 Conn. 134,
149, 491 A.2d 389 (1985); Foran v. Carangelo, supra,
153 Conn. 360; Shaker v. Shaker, 129 Conn. 518, 520–21,
29 A.2d 765 (1942); see also Kling v. Torello, 87 Conn.
301, 305–306, 87 A. 987 (1913). A necessary consequence
of this principle is that a cause of action for wrongful
death predicated on a CUTPA violation will lie only
insofar as the decedent, had he or she survived, could
have satisfied all of the essential elements of the CUTPA
claim. See, e.g., Roque v. United States, 676 F. Supp.
2d 36, 42 (D. Conn. 2009) (plaintiff must prove elements
of negligence claim in wrongful death action predicated
on negligence); Nolan v. Morelli, 154 Conn. 432, 435, 226
A.2d 383 (1967) (plaintiff must establish that decedent
could recover damages under Dram Shop Act in wrong-
ful death action predicated on that statute); see also
Schwarder v. United States, 974 F.2d 1118, 1129 (9th
Cir. 1992) (Alarcon, J., concurring in part and dissenting
in part) (‘‘[a] majority of the state courts that have
considered the question have held that a survivor can-
not bring a wrongful death action if the decedent was
barred from [bringing a claim for his injuries] in his
lifetime, because the wrongful death claim is essentially
derivative of the injury to the decedent’’); W. Keeton
et al., Prosser and Keeton on the Law of Torts (5th Ed.
1984) § 127, p. 955 (‘‘[t]he wrongful death action for
the benefit of survivors is, like other actions based on
injuries to others, derivative in nature, arising out of
and dependent [on] the wrong done to the injured per-
son and thus barred when his claim would be barred’’
[footnote omitted]). It is clear, then, that the plaintiffs’
wrongful death claims must comply not only with the
statute of limitations that governs wrongful death
actions but also with CUTPA’s statute of limitations.
Accordingly, because it is undisputed that the manufac-
ture, distribution, and final sale of the rifle to Lanza’s
mother all occurred at least three years prior to the
commencement of the present action, we conclude that
the trial court should have struck as time barred the
plaintiffs’ wrongful death claims predicated on a theory
that any sale to the civilian market of military style
assault weapons such as the AR-15 represents an unfair
trade practice. Cf. footnote 14 of this opinion.
That determination, however, is not fatal to all of the
plaintiffs’ claims. As we discussed, the plaintiffs also
pleaded, in the alternative, that the defendants violated
CUTPA by advertising and marketing the XM15-E2S in
an unethical, oppressive, immoral, and unscrupulous
manner. Although the complaint does not specifically
allege on what dates or over what period of time such
marketing activities occurred, most of the plaintiffs’
wrongful marketing claims are phrased in the present
tense and, therefore, may be understood to allege that
those activities continued through the time the com-
plaint was filed. In addition, the plaintiffs’ allegation
that Lanza selected the XM15-E2S on the morning of
the assault ‘‘because of its marketed association with
the military’’ reasonably could be interpreted to mean
that such marketing schemes remained in place at the
time of the massacre, during the limitation period.
Accordingly, because we are compelled to construe the
complaint liberally, in the manner most favorable to
sustaining its legal sufficiency, we conclude that, for
present purposes, the plaintiffs’ wrongful advertising
theory is not barred by CUTPA’s statute of limitations.32
C
Connecticut Product Liability Act Preemption
We next consider whether the trial court correctly
determined that § 52-572n (a), the exclusivity provision
of the Product Liability Act, does not bar the plaintiffs’
CUTPA claims. Section 52-572n (a) provides that ‘‘[a]
product liability claim as provided in [the Product Lia-
bility Act] may be asserted and shall be in lieu of all
other claims against product sellers, including actions
of negligence, strict liability and warranty, for harm
caused by a product.’’ The defendants contend that all
of the plaintiffs’ CUTPA claims ultimately boil down
to the argument that the XM15-E2S is unreasonably
dangerous for sale to the civilian market and, therefore,
that manufacturers and distributors of that weapon
should be held strictly liable for any injuries resulting
from its misuse. They contend that this is ‘‘nothing more
than a [P]roduct [L]iability [A]ct claim dressed in the
robes of CUTPA’’; Gerrity v. R.J. Reynolds Tobacco
Co., 263 Conn. 120, 129, 818 A.2d 769 (2003); and that,
pursuant to § 52-572n (a), the Product Liability Act pro-
vides the exclusive remedy. We are not persuaded.
As we have explained, the plaintiffs’ wrongful death
claims are predicated on two distinct theories of unfair
trade practice: (1) the sale of assault rifles such as the
XM15-E2S to the civilian market is inherently unreason-
able and dangerous; and (2) the defendants marketed
and promoted the XM15-E2S in an unethical, oppres-
sive, immoral, and unscrupulous manner. The defen-
dants’ primary argument with respect to the Product
Liability Act relates to the plaintiffs’ first theory of liabil-
ity. Because we have concluded that claims predicated
on the plaintiffs’ first CUTPA based theory of liability
are time barred, however, we need not determine
whether those claims also are precluded by § 52-572n
(a). Cf. footnote 14 of this opinion.
With respect to the plaintiffs’ second theory of liabil-
ity, the defendants fail to offer any explanation as to
why the allegation that they wrongfully marketed the
XM15-E2S by promoting the gun’s use for illegal pur-
poses—offensive, military style assault missions—
amounts to a product defect claim.33 There is no allega-
tion in the present case, for example, that the marketing
for the XM15-E2S contained inadequate warnings that
made the weapon unreasonably dangerous.
The defendants’ sole argument in this regard is their
contention that, in Merrill v. Navegar, Inc., supra, 26
Cal. 4th 465, the California Supreme Court rejected
allegations of wrongful firearms marketing as disguised
product liability claims. We read Merrill differently. It
is true that the California Supreme Court concluded
that many of the negligent marketing and distribution
claims at issue in that case were barred by a California
statute that provided that a gun manufacturer may not
be held liable in a product liability action on the basis
that the benefits of its product fail to outweigh the
product’s risk of injury when discharged. Id., 470; see
Cal. Civ. Code § 1714.4 (a) (Deering 1994) (repealed in
2002). But the claims in Merrill, while dressed in terms
of negligent marketing and distribution, were substan-
tially similar to the claims of the plaintiffs in the present
case, namely, that the sale of assault weapons to the
civilian market is inherently unreasonable because
those weapons have no legitimate civilian purpose. See
Merrill v. Navegar, Inc., supra, 470, 480–81.
The only claims at issue in Merrill that were akin to
the plaintiffs’ immoral advertising claims were their
allegations that Navegar, Inc. (Navegar), a gun manufac-
turer, advertised its semiautomatic assault pistols ‘‘as
tough as your toughest customer’’ and as featuring
‘‘excellent resistance to finger prints,’’ which might have
suggested that the weapons were especially well suited
for criminal use. (Internal quotation marks omitted.)
Id., 471. In holding that the trial court had properly
granted Navegar’s motion for summary judgment with
respect to those ‘‘more inflammatory aspects of Naveg-
ar’s advertising’’; id., 489; however, the California
Supreme Court relied not on the immunity provision
in California’s product liability statute but, rather, on
the facts that (1) the plaintiffs in Merrill expressly disa-
vowed any claims based on the specific content of
Navegar’s advertising; id., 474, 487–88; and (2) there
was no evidence that the shooter in that case ever had
seen, let alone had been inspired by, any of Navegar’s
allegedly inappropriate promotional materials. Id., 471,
473, 488–91. Accordingly, we do not read Merrill as
supporting the defendants’ contention that the wrong-
ful advertising claims in the present case are merely
masked product defect claims.
The defendants have offered no other arguments as
to why the plaintiffs’ wrongful advertising claims repre-
sent veiled product liability claims. Accordingly, we
conclude that those claims are not precluded by § 52-
572n (a). See Gerrity v. R.J. Reynolds Tobacco Co.,
supra, 263 Conn. 124, 128 (analyzing language of exclu-
sivity provision and concluding that claim that tobacco
companies violated CUTPA by targeting minors with
their cigarette advertising did not allege product defect
and, therefore, was not precluded by Product Liabil-
ity Act).
D
CUTPA Personal Injury Damages
We next consider the defendants’ argument that per-
sonal injuries resulting in death do not give rise to
cognizable damages for purposes of CUTPA.34 As we
explained, an action for wrongful death will lie only if
the deceased, had he or she survived, would have had
a valid claim for the injuries that resulted in death. See
part IV B of this opinion. For that reason, the plaintiffs
can prevail on their CUTPA based wrongful death
claims only if CUTPA permits the recovery of damages
for the decedents’ injuries. As a matter of first impres-
sion, we hold that CUTPA permits recovery for personal
injuries that result directly from wrongful advertising
practices.35
Whether personal injuries give rise to cognizable
CUTPA damages presents a question of statutory inter-
pretation. We begin by setting forth the relevant statu-
tory language. Subsection (a) of § 42-110g contains two
clauses potentially relevant to the issue before us. First,
subsection (a) creates a private right of action for ‘‘[a]ny
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 . . . .’’ This provision is known as the
ascertainable loss clause. Second, subsection (a) pro-
vides that any person so injured ‘‘may bring an action
. . . to recover actual damages.’’ This provision of sub-
section (a) is known as the actual damages clause.
The view of the plaintiffs is that these two clauses
serve distinct, independent functions within the statute
and that only the actual damages clause restricts the
types of damages that are available. Specifically, they
contend that, although one must suffer some ascertain-
able loss of money or property in order to have standing
to bring a CUTPA action, once the standing require-
ments set by the ascertainable loss clause have been
satisfied, a successful plaintiff may recover not only for
those financial losses but for any and all actual dam-
ages. Relying on DiNapoli v. Cooke, 43 Conn. App. 419,
427, 682 A.2d 603, cert. denied, 239 Conn. 951, 686 A.2d
124 (1996), cert. denied, 520 U.S. 1213, 117 S. Ct. 1699,
137 L. Ed. 2d 825 (1997), the plaintiffs further contend
that the term ‘‘actual damages’’ is synonymous with
compensatory or general damages and excludes only
special damages such as nominal and punitive damages.
Certainly, they contend, that term is sufficiently expan-
sive to encompass personal injuries.
The defendants, by contrast, argue that the ascertain-
able loss clause modifies and cabins the meaning of
the actual damages clause. In their view, the fact that
a plaintiff must have suffered some manner of financial
loss to bring a CUTPA action implies that the legislature
intended to limit recovery to damages of that sort. Inso-
far as both of these interpretations of the statutory
language are facially plausible,36 we conclude that the
statute is ambiguous and that we may properly look
to extratextual sources to ascertain the intent of the
legislature. See General Statutes § 1-2z.
The legislative histories of CUTPA and of the model
legislation on which CUTPA is based are largely silent
with respect to the question of personal injury damages.
R. Langer et al., 12 Connecticut Practice Series: Con-
necticut Unfair Trade Practices, Business Torts and
Antitrust (2018–19 Ed.) § 6.7, pp. 849, 851. Nevertheless,
four considerations persuade us that the legislature did
not intend to bar plaintiffs from recovering for personal
injuries resulting from unfair trade practices, at least
under circumstances such as those presented here.
First, although both the plaintiffs’ and the defendants’
interpretations of the statutory language are facially
plausible, the plaintiffs’ reading of § 42-110g (a) is more
reasonable. While the term ‘‘actual damages’’ is not
defined in CUTPA, the term is used in other statutes in
such a manner as to leave no doubt that actual damages
include personal injuries. For example, General Stat-
utes § 53-452 (a) provides in relevant part that ‘‘[a]ny
person whose property or person is injured by [a com-
puter crime committed in violation of] section 53-451
may bring a civil action in the Superior Court to enjoin
further violations and to recover the actual damages
sustained by reason of such violation . . . .’’ (Empha-
sis added.)
In addition, the plaintiffs’ interpretation of the statute
better comports with our analysis in Hinchliffe v. Amer-
ican Motors Corp., supra, 184 Conn. 612–20. In that
case, we considered the closely related question of
whether the ‘‘ascertainable loss’’ requirement means
that a CUTPA plaintiff must be able to prove that he
or she has suffered actual damages in a particular
amount. Id., 612–13. We rejected that reading of the
statute, concluding that the ascertainable loss and
actual damage clauses of § 42-110g (a) serve distinct
purposes and that the legislature did not intend the
term ‘‘ascertainable’’ to modify ‘‘actual damages.’’ Id.,
613–15. We also cited favorably the view of one legal
scholar that ‘‘the only function served by a threshold
‘loss’ requirement in a consumer protection statute is
to guard against vicarious suits by self-constituted attor-
neys general when they spot an apparently deceptive
advertisement in the newspaper, on television or in a
store window.’’ Id., 615 n.6, citing D. Rice, ‘‘New Private
Remedies for Consumers: The Amendment of Chapter
93A,’’ 54 Mass. L.Q. 307, 314 (1969). That view, if correct,
strongly supports the conclusion that the presence of
the ascertainable loss clause in the statute in no way
restricts the damages that are available to plaintiffs who
have been directly and personally injured by an unfair
trade practice.
Second, we frequently have remarked that ‘‘CUTPA’s
coverage is broad and its purpose remedial.’’ (Internal
quotation marks omitted.) Cheshire Mortgage Service,
Inc. v. Montes, 223 Conn. 80, 113–14, 612 A.2d 1130
(1992); see also 12 R. Langer et al., supra, § 2.5, p. 81.
As we explained in part IV A of this opinion, whereas
unfair trade practices such as false advertising and
other forms of commercial deception tend to result
primarily in financial harm, a principal evil associated
with unethical and unscrupulous advertising is that
viewers or innocent third parties will be physically
injured as a result of dangerous or illegal conduct
depicted in the advertisements. See, e.g., Lorillard
Tobacco Co. v. Reilly, 533 U.S. 525, 556–61, 121 S. Ct.
2404, 150 L. Ed. 2d 532 (2001). That is precisely what
the plaintiffs in the present case allege. If personal injur-
ies are not recoverable under those circumstances, then
no recovery will be available for a substantial category
of unfair trade practices, and the threat of private litiga-
tion will not serve as a deterrent to such conduct. That
outcome would be inconsistent with the stated intent of
the legislature to provide broad protection from unfair
trade practices and to incentivize private enforcement
of the law.
Third, it is well established that the legislature
intended that Federal Trade Commission (FTC) rulings
and cases decided under the Federal Trade Commission
Act (FTC Act), 15 U.S.C. § 41 et seq. (2012 and Supp.
V 2017), would ‘‘serve as a lodestar’’ for interpreting
CUTPA’s open-ended language.37 Russell v. Dean Witter
Reynolds, Inc., 200 Conn. 172, 179, 510 A.2d 972 (1986).38
Notably, the FTC itself has construed the FTC Act as
prohibiting practices that are physically dangerous to
consumers. See J. Beales III, ‘‘Advertising to Kids and
the FTC: A Regulatory Retrospective That Advises the
Present,’’ 12 Geo. Mason L. Rev. 873, 876 (2004). In In
re International Harvester Co., 104 F.T.C. 949 (1984),
for example, the FTC held that a manufacturer’s failure
to adequately disclose safety risks associated with fuel
geysering in its tractors represented an unfair trade
practice that violated the FTC Act. See id., 1066–67. In
reaching this conclusion, the FTC relied on the fact that
fuel geysering is a hazard that creates a substantial
risk of injury or death: ‘‘There clearly has been serious
consumer injury. At least one person has been killed
and eleven others burned. . . . Many of the burn injur-
ies have been major ones, moreover, resulting in mobil-
ity limitations, lasting psychological harm, and severe
disfigurement. . . . These injuries are of a kind that
satisfies the . . . unfairness test. It is true that they
involve physical rather than economic injury, but the
[u]nfairness [s]tatement reaches such matters.’’ (Cita-
tions omitted.) Id., 1064; see also In re LabMD, Inc.,
Docket No. 9357, 2016 WL 521327, *12 (F.T.C. January
14, 2016) (‘‘unquantifiable health and safety risks’’ can
give rise to unfair trade practice injuries).
Of particular relevance to the present action, the FTC
has, on multiple occasions, found violations of the FTC
Act when companies have advertised or promoted their
products in a manner that is likely to result in physical
injury, even in the absence of product sales. For exam-
ple, the FTC has required companies to refrain from
advertising that depicts young children operating bicy-
cles and tricycles in an unsafe or unlawful manner; In
re AMF, Inc., 95 F.T.C. 310, 313–15 (1980); adver-
tising the use of electric hairdryers by children in close
proximity to a filled bathroom sink; See In re Mego
International, Inc., 92 F.T.C. 186, 187, 189–90 (1978);
and advertising that depicts children attempting to
cook food without close adult supervision; In re Uncle
Ben’s, Inc., 89 F.T.C. 131, 136 (1977); as well as promo-
tional giveaways that expose young children to
unguarded razor blades. See In re Philip Morris, Inc.,
82 F.T.C. 16, 19 (1973). The FTC concluded that such
marketing activities had the tendency to induce behav-
ior that involves an unreasonable risk of harm to person
or property and, therefore, constituted unfair trade
practices.
In 1997, Federal Trade Commissioner Roscoe B.
Starek III underscored the FTC’s interest in combat-
ing unfair trade practices that may result in physical
injuries to children: ‘‘Although injury must be both sub-
stantial and likely’’ to draw the FTC’s attention, ‘‘unwar-
ranted health or safety risks can suffice.’’ R. Starek
III, ‘‘The ABCs at the FTC: Marketing and Advertis-
ing to Children,’’ Address at the Minnesota Institute
of Legal Education (July 25, 1997), available at
https://www.ftc.gov/public-statements/1997/07/abcs-
ftc-marketing-and-advertising-children (last visited
March 8, 2019). More recently, the FTC has taken an
interest in the marketing of violent movies, songs, and
video games to children. See, e.g., Federal Trade Com-
mission, Report to Congress, ‘‘Marketing Violent Enter-
tainment to Children: A Sixth Follow-up Review of
Industry Practices in the Motion Picture, Music
Recording & Electronic Game Industries (December,
2009), available at 2009 WL 5427633. It is clear, then,
that wrongful advertising that poses a genuine risk of
physical harm falls under the broad purview of the FTC
Act and, by incorporation, CUTPA.
Fourth, we observe that courts in several of our sister
states have concluded that victims of unfair trade prac-
tices may recover for personal injuries. See, e.g., Pope
v. Rollins Protective Services Co., 703 F.2d 197, 203 (5th
Cir. 1983) (applying Texas law); Maurer v. Cerkvenik-
Anderson Travel, Inc., 181 Ariz. 294, 297–98, 890 P.2d
69 (App. 1994); Maillet v. ATF-Davidson Co., 407 Mass.
185, 192, 552 N.E.2d 95 (1990). Although we recognize
that the statutory language at issue in those cases was
not identical to the language at issue in this case, we
nevertheless find it significant that sister courts have
understood personal injuries to fall within the scope of
the harms to which broadly worded consumer protec-
tion statutes are directed. In addition, we note that a
majority of Connecticut trial courts addressing the issue
have concluded that damages for personal injuries can
be recovered under CUTPA. 12 R. Langer et al., supra,
§ 6.7, p. 850. For all of these reasons, we conclude that,
at least with respect to wrongful advertising claims,
personal injuries alleged to have resulted directly from
such advertisements are cognizable under CUTPA.
V
WRONGFUL DEATH AND CUTPA:
ISSUES OF FEDERAL LAW
Having concluded that the plaintiffs have pleaded
legally cognizable CUTPA claims sounding in wrongful
marketing, we next consider whether the trial court
properly determined that PLCAA does not bar the plain-
tiffs’ wrongful death claims. Our review of the federal
statute persuades us that the trial court correctly con-
cluded that CUTPA, as applied to the plaintiffs’ allega-
tions, falls within one of PLCAA’s exceptions.
A
PLCAA Overview
PLCAA generally affords manufacturers and sellers
of firearms39 immunity from civil liability arising from
the criminal or unlawful use of their products by third
parties. 15 U.S.C. §§ 7902 (a) and 7903 (5) (A) (2012).40
Congress carved out six exceptions to this immunity,
pursuant to which firearms sellers may be held liable
for third-party crimes committed with their products.
See 15 U.S.C. § 7903 (5) (A) (2012). The exception at
issue in the present case, the predicate exception; see
footnote 12 of this opinion and accompanying text; per-
mits civil actions alleging that ‘‘a manufacturer or seller
of a [firearm] knowingly violated a State or Federal
statute applicable to the sale or marketing of the [fire-
arm], and the violation was a proximate cause of the
harm for which relief is sought . . . .’’ 15 U.S.C. § 7903
(5) (A) (iii) (2012). The question presented by this
appeal is whether CUTPA qualifies as such a predicate
statute, that is, a ‘‘statute applicable to the sale or mar-
keting of [firearms] . . . .’’ (Emphasis added.) 15
U.S.C. § 7903 (5) (A) (iii) (2012). The answer to this
question necessarily hinges on the meaning and scope
of the statutory term ‘‘applicable.’’ See Ileto v. Glock,
Inc., 565 F.3d 1126, 1133 (9th Cir. 2009), cert. denied,
560 U.S. 924, 130 S. Ct. 3320, 176 L. Ed. 2d 1219 (2010).
‘‘[W]e begin by setting forth the rules and principles
that govern our interpretation of federal law. With
respect to the construction and application of federal
statutes, principles of comity and consistency require
us to follow the plain meaning rule . . . .’’ (Internal
quotation marks omitted.) CCT Communications, Inc.
v. Zone Telecom, Inc., 327 Conn. 114, 140, 172 A.3d
1228 (2017). ‘‘Under the [federal] plain meaning rule,
[l]egislative history and other tools of interpretation
may be relied [on] only if the terms of the statute are
ambiguous.’’ (Internal quotation marks omitted.) Web-
ster Bank v. Oakley, 265 Conn. 539, 555, 830 A.2d 139
(2003), cert. denied, 541 U.S. 903, 124 S. Ct. 1603, 158
L. Ed. 2d 244 (2004). ‘‘If the text of a statute is ambigu-
ous, then we must construct an interpretation consis-
tent with the primary purpose of the statute as a whole.
. . . Thus, our interpretive process will begin by inquir-
ing whether the plain language of [the] statute, when
given its ordinary, common meaning . . . is ambigu-
ous.’’ (Citations omitted; internal quotation marks omit-
ted.) Id., 555–56. In assessing ambiguity, the meaning
of the statute must be evaluated not only by reference
to the language itself but also in the specific context
in which that language is used, as well as in the broader
context of the statute as a whole. New York v. Beretta
U.S.A. Corp., 524 F.3d 384, 400 (2d Cir. 2008), cert.
denied, 556 U.S. 1104, 129 S. Ct. 1579, 173 L. Ed. 2d
675 (2009).
B
The Plain Language of the Statute
Both the plaintiffs and the defendants contend that
the plain language of the predicate exception, read in
the context of the broader statute, unambiguously
favors their position. In this part of the opinion, we
explain why the plaintiffs’ interpretation of the statutory
language is plainly the more reasonable one. We con-
sider the text of the predicate exception itself, the
broader statutory framework, the congressional state-
ment of findings and purposes, and the defendants’
argument that treating CUTPA as a predicate statute
would lead to absurd results.
Although we agree with the plaintiffs that their read-
ing of the statutory language is the better one, we recog-
nize that the defendants’ interpretation is not implau-
sible. Therefore, in part V C of the opinion, we also
review various extrinsic sources of congressional intent
to resolve any ambiguities. Our review of both the statu-
tory language and these extrinsic sources persuades us
that Congress did not mean to preclude actions alleging
that firearms companies violated state consumer pro-
tection laws by promoting their weapons for illegal,
criminal purposes.
1
The Predicate Exception
When construing a federal law in which key terms
are undefined, we begin with the ordinary, dictionary
meaning of the statutory language. See, e.g., Maslenjak
v. United States, U.S. , 137 S. Ct. 1918, 1924,
198 L. Ed. 2d 460 (2017). Looking to dictionaries that
were in print around the time PLCAA was enacted,
we find that the principal definition of ‘‘applicable’’ is
simply ‘‘[c]apable of being applied . . . .’’ Black’s Law
Dictionary (10th Ed. 2014) p. 120; accord Webster’s
Third New International Dictionary (2002) p. 105.
If Congress had intended to create an exception to
PLCAA for actions alleging a violation of any law that
is capable of being applied to the sale and marketing
of firearms, then there is little doubt that state consumer
protection statutes such as CUTPA would qualify as
predicate statutes. CUTPA prohibits ‘‘unfair methods
of competition and unfair or deceptive acts or practices
in the conduct of any trade or commerce.’’ (Emphasis
added.) General Statutes § 42-110b (a). Accordingly, the
statute clearly is capable of being applied to the sale
and marketing of firearms. The only state appellate
court to have reviewed the predicate exception con-
strued it 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 market-
ing of firearms), transfer denied, 915 N.E. 978 (Ind.
2009).
It is true that secondary dictionary definitions of
‘‘applicable’’ might support a narrower reading of the
predicate exception. Webster’s Third New International
Dictionary, for example, also defines ‘‘applicable’’ as
‘‘fit, suitable, or right to be applied: appropriate . . .
relevant . . . .’’ Webster’s Third New International Dic-
tionary, supra, p. 105. Pursuant to such definitions, the
Ninth Circuit concluded, it would not be unreasonable
to read PLCAA to exempt only those state laws that
are exclusively relevant to the sale or marketing of
firearms. See Ileto v. Glock, Inc., supra, 565 F.3d 1134.
If Congress had intended to limit the scope of the
predicate exception to violations of statutes that are
directly, expressly, or exclusively applicable to fire-
arms, however, it easily could have used such language,
as it has on other occasions.41 The fact that the drafters
opted instead to use only the term ‘‘applicable,’’ which
is susceptible to a broad reading, further supports the
plaintiffs’ interpretation. See, e.g., Scholastic Book
Clubs, Inc. v. Commissioner of Revenue Services, 304
Conn. 204, 219, 38 A.3d 1183 (‘‘the legislature knows
how to . . . use broader or limiting terms when it
chooses to do so’’ [citation omitted]), cert. denied, 568
U.S. 940, 133 S. Ct. 425, 184 L. Ed. 2d 255 (2012).
2
The Statutory Framework
In construing the predicate exception, we also must
consider the broader statutory framework. The plain-
tiffs’ contention that CUTPA qualifies as a predicate
statute as applied to their wrongful marketing claims
finds additional support in the repeated statutory refer-
ences to laws that govern the marketing of firearms.
There is no doubt that statutes that govern the adver-
tising and marketing of firearms potentially qualify as
predicate statutes. The predicate exception expressly
provides that the ‘‘qualified civil liability actions’’ from
which firearms sellers are immune shall not include ‘‘an
action in which a manufacturer or seller of a [firearm]
knowingly violated a State or Federal statute applicable
to the sale or marketing of the [firearm] . . . .’’42
(Emphasis added.) 15 U.S.C. § 7903 (5) (A) (iii) (2012).
Importantly, however, at the time PLCAA was
enacted, no federal statutes directly or specifically
regulated the marketing or advertising of firearms. In
addition, only a handful of states have enacted firearm
specific laws that address in any way the marketing
function, and none of those purports to comprehen-
sively regulate the advertising of firearms.43 It would
have made little sense for the drafters of the legislation
to carve out an exception for violations of laws applica-
ble to the marketing of firearms if no such laws existed.44
If Congress intended the predicate exception to
encompass laws that prohibit the wrongful marketing
of firearms, and if no laws expressly and directly do
so, then the only logical reading of the statute is that
Congress had some other type of law in mind. What
type? At both the federal and state levels, false, decep-
tive, and other forms of wrongful advertising are regu-
lated principally through unfair trade practice laws such
as the FTC Act and its state analogues.45 We must pre-
sume that Congress was aware, when it enacted PLCAA,
that both the FTC Act and state analogues such as
CUTPA have long been among the primary vehicles for
litigating claims that sellers of potentially dangerous
products such as firearms have marketed those prod-
ucts in an unsafe and unscrupulous manner. See Good-
year Atomic Corp. v. Miller, 486 U.S. 174, 185, 108 S.
Ct. 1704, 100 L. Ed. 2d 158 (1988) (Congress is presump-
tively knowledgeable about pertinent federal and state
law). CUTPA, for example, has long been construed to
incorporate the FTC’s traditional ‘‘cigarette rule,’’ which
prohibits as unfair advertising that is, among other
things, ‘‘immoral, unethical, oppressive and unscrupu-
lous.’’46 Ivey, Barnum & O’Mara v. Indian Harbor Prop-
erties, Inc., 190 Conn. 528, 539 and n.13, 461 A.2d
1369 (1983).
Reading the predicate exception to encompass
actions brought to remedy illegal and unscrupulous
marketing practices under state consumer protection
laws is consistent with the approach followed by the
United States Court of Appeals for the Second Circuit,
whose decisions ‘‘carry particularly persuasive weight
in the interpretation of federal statutes by Connecticut
state courts.’’ (Internal quotation marks omitted.) CCT
Communications, Inc. v. Zone Telecom, Inc., supra,
327 Conn. 140. In New York v. Beretta U.S.A. Corp.,
supra, 524 F.3d 384, the Second Circuit considered
whether PLCAA barred the municipal plaintiffs’ action
alleging that distribution practices of the defendant fire-
arms manufactures and sellers violated a New York
criminal nuisance statute; see N.Y. Penal Law § 240.45
(McKinney 2008); by marketing guns to legitimate buy-
ers with the knowledge that those guns will be diverted
into illegal markets. See New York v. Beretta U.S.A.
Corp., supra, 389–90. The court concluded that the
action should have been dismissed because the nui-
sance statute was a law of general applicability that
had never been applied to the firearms trade and simply
did not ‘‘encompass the conduct of firearms manufac-
turers of which the [municipal plaintiffs] complain[ed].’’
Id., 400. Notably, in reaching that conclusion, the Sec-
ond Circuit held that the predicate exception encom-
passes not only laws that expressly regulate commerce
in firearms but also those that ‘‘clearly can be said to
implicate the purchase and sale of firearms,’’ as well
as laws of general applicability that ‘‘courts have applied
to the sale and marketing of firearms . . . .’’47 Id., 404.
CUTPA falls squarely into both of these categories.
Statutes such as the FTC Act and state analogues
that prohibit the wrongful marketing of dangerous con-
sumer products such as firearms represent precisely the
types of statutes that implicate and have been applied
to the sale and marketing of firearms. In the early 1970s,
for example, the FTC entered into consent decrees with
three firearms sellers relating to allegations that they
had precluded their dealers from advertising their guns
at lower than established retail prices.48 A few years
later, the FTC ordered Emdeko International, Inc., a
marketing company, to refrain from predatory and mis-
leading advertising regarding various consumer prod-
ucts, including firearms. See In re National House-
wares, Inc., 90 F.T.C. 512, 516, 587–88, 601–603 (1977).
CUTPA also has been applied to the sale of firearms.
For example, in Salomonson v. Billistics, Inc., Superior
Court, Judicial District of New London, Docket No. CV-
88-508292 (September 27, 1991), the plaintiff prevailed
on his claim that the defendant gun dealer’s sales prac-
tices relating to the sale of a Ruger pistol and three
remanufactured semiautomatic rifles violated CUTPA.49
Id. The court specifically found that the defendant’s
conduct was ‘‘oppressive’’ and, therefore, violated the
second prong of the cigarette rule, the same standard
at issue in the present case. Id.
Equally important, regulation of firearms advertising
in our sister states frequently has been accomplished
under the auspices of state consumer protection and
unfair trade practice laws.50 It is clear, therefore, that
consumer protection statutes such as CUTPA long have
been an established mechanism for regulating the mar-
keting and advertising schemes of firearms vendors.
The FTC Act and its various state analogues also have
been applied in numerous instances to the wrongful
marketing of other potentially dangerous consumer
products, especially with respect to advertisements that
promote unsafe or illegal conduct.51 See S. Calkins,
‘‘FTC Unfairness: An Essay,’’ 46 Wayne L. Rev. 1935,
1962, 1974 (2000). Although Congress temporarily cur-
tailed the FTC’s authority to regulate unfair commercial
advertising in 1980, that authority was reinstated in
1994. Id., 1954–55.
Subsequently, just a few years before Congress began
considering predecessor legislation to PLCAA, the FTC
entered into a new consent decree addressing wrongful
advertising. In In re Beck’s North America, Inc., Docket
No. C-3859, 1999 FTC LEXIS 40 (F.T.C. March 25, 1999),
the commission prohibited the publication of advertise-
ments that portrayed young adult passengers consum-
ing alcohol while sailing, in a manner that was unsafe
and depicted activities that ‘‘may also violate federal
and state boating safety laws.’’ Id., *2. The consent
decree prohibited the ‘‘future dissemination . . . of
any . . . advertisement that . . . depicts activities
that would violate [federal laws that make] it illegal to
operate a vessel under the influence of alcohol or illegal
drugs.’’ (Citations omitted.) In re Beck’s North America,
Inc., File No. 982-3092, 1998 FTC LEXIS 83, *15–16
(F.T.C. August 6, 1998). More generally, the FTC cau-
tioned that it ‘‘ha[d] substantial concern about advertis-
ing that depicts conduct that poses a high risk to health
and safety. As a result, the [FTC] will closely scrutinize
such advertisements in the future.’’ Id., *15.52
Because Congress clearly intended that laws govern-
ing the marketing of firearms would qualify as predicate
statutes, and because Congress is presumed to be aware
that the wrongful marketing of dangerous items such
as firearms for unsafe or illegal purposes traditionally
has been and continues to be regulated primarily by
consumer protection and unfair trade practice laws
rather than by firearms specific statutes, we conclude
that the most reasonable reading of the statutory frame-
work, in light of the decision of the Second Circuit in
New York v. Beretta U.S.A. Corp., supra, 524 F.3d 384,
is that laws such as CUTPA qualify as predicate statutes,
insofar as they apply to wrongful advertising claims.53
3
The Statement of Findings and Purposes
When it drafted PLCAA, Congress included a state-
ment of findings and purposes. See 15 U.S.C. § 7901
(2012). In his dissenting opinion, Justice Robinson reads
this statement to support the position of the defendants.
On balance, however, we conclude, for the following
reasons, that the congressional findings and purposes
also lend support to the plaintiffs’ interpretation of the
statute.
First, Title 15 of the 2012 edition of the United States
Code, § 7901 (a) (4), provides that ‘‘[t]he manufacture,
importation, possession, sale, and use of firearms and
ammunition in the United States are heavily regulated
by Federal, State, and local laws . . . [s]uch [as] . . .
the Gun Control Act of 1968, the National Firearms Act
. . . and the Arms Export Control Act . . . .’’ (Cita-
tions omitted; emphasis added.) Notably, this provision,
which expressly references various firearms specific
laws, makes no mention of the marketing function. By
contrast, the very next finding expressly references the
‘‘lawful . . . marketing . . . of firearms . . . .’’54 15
U.S.C. § 7901 (a) (5) (2012). Reading these two findings
in concert, it is clear that Congress chose not to abro-
gate the well established duty of firearms sellers to
market their wares legally and responsibly, even though
no federal laws specifically govern the marketing of
firearms.
Second, although the findings indicate that Congress
sought to immunize the firearms industry from liability
for third-party criminal conduct, they emphasize that
that immunity extended only to ‘‘harm that is solely
caused by others . . . .’’ (Emphasis added.) 15 U.S.C.
§ 7901 (a) (6) (2012); see also 15 U.S.C. § 7901 (b) (1)
(2012) (principal purpose of PLCAA is to prohibit
causes of action ‘‘for the harm solely caused by the
criminal or unlawful misuse of firearm products’’
[emphasis added]); Ileto v. Glock, Inc., supra, 565 F.3d
1158 (Berzon, J., concurring in part and dissenting in
part) (same). The statement of findings and purposes
further provides that the purpose of PLCAA is ‘‘[t]o
preserve a citizen’s access to a supply of firearms and
ammunition for all lawful purposes, including hunting,
self-defense, collecting, and competitive or recreational
shooting.’’ (Emphasis added.) 15 U.S.C. § 7901 (b) (2)
(2012). In the present case, the plaintiffs allege that the
defendants illegally marketed the XM15-E2S by promot-
ing its criminal use for offensive civilian assaults, and
that this wrongful advertising was a direct cause of the
Sandy Hook massacre. At no time and in no way does
the congressional statement indicate that firearm sell-
ers should evade liability for the injuries that result if
they promote the illegal use of their products.
Third, the findings make clear that Congress sought
to preclude only novel civil actions that are ‘‘based on
theories without foundation in hundreds of years of the
common law and jurisprudence of the United States
and do not represent a bona fide expansion of the com-
mon law,’’ recognition of which ‘‘would expand civil
liability in a manner never contemplated . . . by Con-
gress . . . or by the legislatures of the several States.’’
15 U.S.C. § 7901 (a) (7) (2012). As we previously dis-
cussed, however, it is well established that the FTC Act
and state analogues such as CUTPA not only govern the
marketing of firearms, but also prohibit advertisements
that promote or model the unsafe or illegal use of poten-
tially dangerous products. Accordingly, there is simply
no reason to think that the present action represents the
sort of novel civil action that Congress sought to bar.55
The dissent relies on one other provision of the state-
ment of findings and purposes that purportedly dis-
qualifies CUTPA, as applied to the plaintiffs’ wrongful
marketing theory, as a potential predicate statute. Spe-
cifically, the statement emphasizes the importance of
preserving the rights enshrined in the second amend-
ment to the United States constitution. See 15 U.S.C.
§ 7901 (a) (1), (2) and (6) (2012).
There is no doubt that congressional supporters of
PLCAA were committed to Americans’ second amend-
ment freedoms and sought to secure those freedoms
by immunizing firearms companies from frivolous
lawsuits. It is not at all clear, however, that the second
amendment’s protections even extend to the types of
quasi-military, semiautomatic assault rifles at issue in
the present case. See District of Columbia v. Heller,
554 U.S. 570, 627, 128 S. Ct. 2783, 171 L. Ed. 2d 637
(2008) (indicating that second amendment’s protection
does not extend to ‘‘ ‘dangerous and unusual weapons’ ’’
and, therefore, that M16s and related military style rifles
may be banned); Kolbe v. Hogan, 849 F.3d 114, 143 (4th
Cir.) (reading Heller to mean that second amendment
does not protect right to possess assault weapons fea-
turing high capacity magazines, such as AR-15), cert.
denied, U.S. , 138 S. Ct. 469, 199 L. Ed. 2d 374
(2017); New York State Rifle & Pistol Assn., Inc. v.
Cuomo, 804 F.3d 242, 257 (2d Cir. 2015) (assuming for
sake of argument that second amendment does apply
to semiautomatic assault weapons such as AR-15 but
upholding outright prohibitions against civilian owner-
ship of such weapons), cert. denied sub nom. Shew v.
Malloy, U.S. , 136 S. Ct. 2486, 195 L. Ed. 2d 822
(2016); see also Friedman v. Highland Park, 784 F.3d
406, 410–12 (7th Cir.), cert. denied, U.S. , 136 S.
Ct. 447, 193 L. Ed. 2d 483 (2015); Fyock v. Sunnyvale,
779 F.3d 991, 999 (9th Cir. 2015); Heller v. District of
Columbia, 670 F.3d 1244, 1261 (D.C. Cir. 2011). Accord-
ingly, we conclude that, on balance, PLCAA’s statement
of findings and purposes also bears out the plaintiffs’
interpretation of the statute, namely, that illegal market-
ing is not protected.56
4
Absurd Result
We next address the defendants’ argument that con-
struing a statute of general applicability such as CUTPA
to be a predicate statute would lead to an absurd result.
As one judge has articulated, ‘‘the predicate exception
cannot possibly encompass every statute that might be
‘capable of being applied’ to the sale or manufacture
of firearms; if it did, the exception would swallow the
rule, and no civil lawsuits would ever be subject to
dismissal under . . . PLCAA.’’ (Emphasis omitted.)
Ileto v. Glock, Inc., supra, 565 F.3d 1155 (Berzon, J.,
concurring in part and dissenting in part).
Of course, to surmount PLCAA immunity via the pred-
icate exception, there must be at least a colorable claim
that a defendant has, in fact, violated some statute,
resulting in harm to the plaintiff. Accordingly, Judge
Berzon’s argument appears to be predicated on the
assumptions that (1) most states have public nuisance
statutes or similar laws, such as the California nuisance
statutes at issue in Ileto, and (2) virtually any action
seeking to hold firearms sellers liable for third-party
gun violence could allege a colorable violation of those
statutes because the mere act of selling the weapons
involved might be deemed to create a public nuisance.
We will assume, without deciding, that Judge Berzon
is correct that, as a general matter, the predicate excep-
tion cannot be so expansive as to fully encompass laws
such as public nuisance statutes insofar as those laws
reasonably might be implicated in any civil action aris-
ing from gun violence.57 Although we believe that the
plaintiffs’ primary allegations—that any sale of assault
weapons to the civilian market constitutes an unfair
trade practice—would falter on this shoal, we need not
address that issue more fully in light of our determina-
tion that those allegations are time barred. See part IV
B of this opinion. What is clear, however, is that the
plaintiffs’ wrongful marketing allegations may proceed
without crippling PLCAA. Those claims allege only that
one specific family of firearms sellers advertised one
particular line of assault weapons in a uniquely unscru-
pulous manner, promoting their suitability for illegal,
offensive assaults. As we have stated throughout this
opinion, we do not know whether the plaintiffs will be
able to prove those allegations to a jury. But we are
confident that this sort of specific, narrowly framed
wrongful marketing claim alleges precisely the sort of
illegal conduct that Congress did not intend to immu-
nize. For this reason, CUTPA’s prohibition against such
conduct appears to fall squarely within the predicate
exception and does not lead to an absurd result.
C
Extrinsic Evidence of Congressional Intent
Other courts that have construed the predicate excep-
tion are divided as to whether the exception unambigu-
ously encompasses laws, such as CUTPA, that do not
expressly regulate firearms sales and marketing but are
nevertheless capable of being and have been applied
thereto. Compare Ileto v. Glock, Inc., supra, 565 F.3d
1133–35 (predicate exception is ambiguous), and New
York v. Beretta U.S.A. Corp., supra, 524 F.3d 401 (same),
with Smith & Wesson Corp. v. Gary, 875 N.E.2d 422,
431, 434 and n.12 (predicate exception unambiguously
applies), and New York v. Beretta U.S.A. Corp., supra,
405–407 (Katzmann, J., dissenting) (same). In part V B
of this opinion, we explained why the plain text of 15
U.S.C. § 7903 (5) (A) (iii) strongly suggests that CUTPA,
as applied to the plaintiffs’ claims, qualifies as a predi-
cate statute. In this part, we explain why extrinsic indi-
cia of congressional intent support the same conclu-
sion. These indicia include canons of statutory con-
struction, closely related legislation, and the legislative
history of PLCAA.
1
Canons of Statutory Construction
Under the law of the Second Circuit, if the plain
language of a statute is ambiguous, we then consider
whether any ambiguities may be resolved by the appli-
cation of canons of statutory construction and, failing
that, through review of the legislative history. E.g.,
United States v. Rowland, 826 F.3d 100, 108 (2d Cir.
2016), cert. denied, U.S. , 137 S. Ct. 1330, 197
L. Ed. 2d 517 (2017). In the present case, three canons
of construction are potentially relevant.
a
Clear Statement Requirement
We begin with the well established canon that a fed-
eral law is not to be construed to have superseded the
historic police powers of the states unless that was the
clearly expressed and manifest purpose of Congress.
E.g., Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516,
112 S. Ct. 2608, 120 L. Ed. 2d 407 (1992); Rice v. Santa
Fe Elevator Corp., 331 U.S. 218, 230, 67 S. Ct. 1146, 91
L. Ed. 1447 (1947); Federal Housing Finance Agency
v. Nomura Holding America, Inc., 873 F.3d 85, 112 n.30
(2d Cir. 2017), cert. denied, U.S. , 138 S. Ct. 2679,
201 L. Ed. 2d 1073 (2018), and cert. denied sub nom.
Findlay v. Federal Housing Finance Agency, U.S.
, 138 S. Ct. 2697, 201 L. Ed. 2d 1073 (2018). The
regulation of advertising that threatens the public
health, safety, and morals has long been considered a
core exercise of the states’ police powers. See, e.g.,
Altria Group, Inc. v. Good, 555 U.S. 70, 77, 129 S. Ct.
538, 172 L. Ed. 2d 398 (2008); Semler v. Oregon State
Board of Dental Examiners, 294 U.S. 608, 611–12, 55
S. Ct. 570, 79 L. Ed. 1086 (1935); Varney & Green v.
Williams, 155 Cal. 318, 321, 100 P. 867 (1909), overruled
in part on other grounds by Metromedia, Inc. v. San
Diego, 26 Cal. 3d 848, 610 P.2d 407, 164 Cal. Rptr. 510
(1980); State v. Certain Contraceptive Materials, 7
Conn. Supp. 264, 277–78 (1939), rev’d on other grounds,
126 Conn. 428, 11 A.2d 863 (1940). Accordingly, we will
find the plaintiffs’ CUTPA action to be superseded by
PLCAA only if that is the clearly expressed intent of
Congress.58
In the case of PLCAA, there is no indication in the
statutory text or statement of findings and purposes
that Congress intended to restrict the power of the
states to regulate wrongful advertising, particularly
advertising that encourages consumers to engage in
egregious criminal conduct. Indeed, sponsors of the
legislation repeatedly emphasized during the legislative
hearings that they did not intend to abrogate well estab-
lished legal principles.59 Accordingly, in the absence of
a clear statement in the statutory text or legislative
history that Congress intended to supersede the states’
traditional authority to regulate the wrongful advertis-
ing of dangerous products such as firearms, we are
compelled to resolve any textual ambiguities in favor
of the plaintiffs.
b
Ejusdem Generis
The defendants contend that a different canon of
construction, namely, ejusdem generis, essentially
resolves any statutory ambiguity in their favor. Specifi-
cally, from the fact that PLCAA provides two examples
of predicate federal statutes, both of which specifically
relate to firearms, the defendants infer that all predicate
statutes must be of that same ilk.60 We are not per-
suaded.
When it drafted the predicate exception, Congress
set forth two examples of statutes that are applicable
to the sale or marketing of firearms. PLCAA provides
that entities engaged in the firearms business are not
immune from liability with respect to ‘‘an action in
which a manufacturer or seller of a [firearm] knowingly
violated a State or Federal statute applicable to the sale
or marketing of the [firearm] . . . including—
‘‘(I) any case in which the manufacturer or seller
knowingly made any false entry in, or failed to make
appropriate entry in, any record required to be kept
under Federal or State law with respect to the [firearm],
or aided, abetted, or conspired with any person in mak-
ing any false or fictitious oral or written statement with
respect to any fact material to the lawfulness of the
sale or other disposition of a [firearm]; or
‘‘(II) any case in which the manufacturer or seller
aided, abetted, or conspired with any other person to
sell or otherwise dispose of a [firearm], knowing, or
having reasonable cause to believe, that the actual
buyer of the [firearm] was prohibited from possessing
or receiving a firearm . . . under subsection (g) or (n)
of section 922 of title 18 [of the United States Code]
. . . .’’61 15 U.S.C. § 7903 (5) (A) (iii) (2012) (setting
forth record keeping and unlawful buyer exceptions).
The defendants argue that we can discern the scope
of the predicate exception by applying ejusdem generis.
That canon applies when a statute sets forth a general
category of persons or things and then enumerates spe-
cific examples thereof. In those cases, when the scope
of the general category is unclear, a presumption, albeit
a rebuttable one, may arise that the general category
encompasses only things similar in nature to the spe-
cific examples that follow. See, e.g., 2A N. Singer & S.
Singer, Statutes and Statutory Construction (7th Ed.
2014) § 47:17, pp. 364–68. Several courts have acknowl-
edged the potential relevance of the canon when con-
struing the predicate exception. See, e.g., New York v.
Beretta U.S.A. Corp., supra, 524 F.3d 401–402.
It is well established, however, that ejusdem generis,
like other canons of construction, is merely a tool to
assist us in gleaning the intent of Congress; it should
not be applied in the face of a contrary manifestation
of legislative intent. Helvering v. Stockholms Enskilda
Bank, 293 U.S. 84, 88–89, 55 S. Ct. 50, 79 L. Ed. 211
(1934); 2A N. Singer & S. Singer, supra, § 47:22, pp.
400–404. This is particularly true, for example, when
the legislative history of a statute reveals a contrary
intent. See 2A N. Singer & S. Singer, supra, § 47:22,
pp. 404–405.
In the case of PLCAA, the legislative history of the
statute makes clear why Congress specifically chose to
include the record keeping and unlawful buyer excep-
tions when drafting the final version of the predicate
exception. Bills substantially similar to PLCAA had
been introduced in both the 107th Congress and the
108th Congress. See S. 1805, 108th Cong. (2003), H.R.
1036, 108th Cong. (2003); H.R. 2037, 107th Cong. (2001).
Those bills contained the same exemption for ‘‘State
or Federal statute[s] applicable to the sale or marketing
of [firearms]’’ that ultimately was codified at 15 U.S.C.
§ 7903 (5) (A) (iii). H.R. 2037, supra, § 4; accord S. 1805,
supra, § 4; H.R. 1036, supra, § 4. Notably, however, they
did not include the record keeping or the unlawful buyer
exception. Indeed, they did not offer any specific exam-
ples of predicate statutes.
The legislative history indicates that the record keep-
ing and unlawful buyer illustrations were added to the
bill that became law during the 109th Congress not to
define or clarify the narrow scope of the exception but,
rather, because, in 2002, two snipers had terrorized the
District of Columbia and surrounding areas. One of the
snipers allegedly stole a Bushmaster XM-15 semiauto-
matic rifle identical or similar to the one at issue in the
present case from a gun dealer with a history of lax
inventory control procedures.62 In 2003, the families of
the victims of the sniper attacks brought a civil action
against the gun dealer that ultimately resulted in a $2.5
million settlement.63 During the legislative debates,
many of the members who spoke in opposition to the
bill that ultimately became PLCAA argued that the bill
would have prevented victims of the sniper attacks from
bringing an action against that gun dealer, even though
the dealer’s carelessness had allowed the snipers to
obtain the assault weapon.64 Indeed, it was in part for
that very reason, and the public outcry over the sniper
attacks, that prior versions of the bill failed to pass.65
To deflect these potent political attacks, the author
and other supporters of the 2005 incarnation of the bill
pointed to the recently added record keeping and illegal
buyer exception language as evidence that victims of
the sniper attacks would not have been barred from
pursuing their action under the predicate exception.66
Indeed, several legislators strongly suggested that these
examples of predicate statutes were specifically added
to PLCAA to make clear that the lawsuits arising from
the sniper attacks would not have been barred by
PLCAA.67
The most reasonable interpretation of this legislative
history, then, is that the record keeping and unlawful
buyer illustrations were included in the final version of
PLCAA not in an effort to define, clarify, or narrow the
universe of laws that qualify as predicate statutes but,
rather, simply to stave off the politically potent attack
that PLCAA would have barred lawsuits like the one
that had arisen from the widely reported Beltway sniper
attacks. There is no other plausible explanation for
why Congress chose to modify the predicate exception
language contained in the 2001 and 2003 bills, which
otherwise was ‘‘virtually identical’’ to the language in
PLCAA. 151 Cong. Rec. 2561 (2005), remarks of Senator
Larry Edwin Craig; see also id., 18,096, remarks of Sena-
tor Craig (indicating that bill is same for all intents and
purposes as version introduced during 108th Congress,
with addition of clarifying examples).
This conclusion is bolstered by the fact that Congress
was fully aware that there are many types of federal
statutes and regulations, filling ‘‘hundreds of pages,’’
that specifically govern the firearms industry. 151 Cong.
Rec. 18,059 (2005), remarks of Senator Thomas Allen
Coburn. Indeed, 18 U.S.C. § 922 is dedicated to delineat-
ing dozens of different unlawful acts relating to the
production, distribution, and sale of firearms. Congress
could have simply identified 18 U.S.C. § 922, or the
other federal firearms laws to which Senator Coburn
alluded, as examples of predicate statutes. Instead, the
author of PLCAA opted to highlight only the two specific
subsections of 18 U.S.C. § 922—subsection (g) and
(n)—that would have barred the Beltway snipers from
obtaining the weapon used in the shootings.
Under similar circumstances, when it is clear that
examples have been included in a statute for purposes
of emphasis or in response to recent, high profile events,
rather than to restrict the scope of coverage, both the
United States Supreme Court and the lower federal
courts have declined to apply canons, including ejus-
dem generis, to construe a statutory provision overly
narrowly.68 For similar reasons, we conclude that the
ejusdem generis canon is not applicable to the predi-
cate exception.
c
Statutory Exceptions To Be Construed Narrowly
Citing Commissioner of Internal Revenue v. Clark,
489 U.S. 726, 739, 109 S. Ct. 1455, 103 L. Ed. 2d 753
(1989), the defendants rely on another canon, contend-
ing that the predicate exception, like other statutory
exceptions, must be construed narrowly to pre-serve
the primary purpose of PLCAA. As we explained, how-
ever, our review of the statutory language strongly sug-
gests that the defendants have misperceived the
primary purpose of PLCAA, which is not to shield fire-
arms sellers from liability for wrongful or illegal con-
duct. If Congress had intended to supersede state
actions of this sort, it was required to make that pur-
pose clear.69
2
Related Legislation
We also find it instructive that, in early 2005, at
approximately the same time that the proposed legisla-
tion that ultimately became PLCAA was introduced,
bills were introduced in both the House of Representa-
tives and the Senate that would have bestowed PLCAA-
type immunity on fast food restaurant companies to
protect them from lawsuits seeking to hold them liable
for consumers’ obesity and related health problems.70
Both bills contained language that was substantially
similar to PLCAA’s predicate exception: ‘‘A qualified
civil liability action shall not include . . . an action
based on allegations that . . . a manufacturer or seller
of [food] knowingly violated a Federal or State statute
applicable to the marketing, advertisement, or labeling
of [food] with intent for a person to rely on that violation
. . . .’’ S. 908, 109th Cong. § 4 (2005); accord H.R. 554,
109th Cong. § 4 (2005). The House Report accompa-
nying H.R. 554 made clear that ‘‘applicable’’ statutes for
purposes of that bill were not limited to laws, such as
the Federal Food, Drug and Cosmetic Act; 21 U.S.C.
§ 301 et seq. (2012); that directly and specifically regu-
late the food industry. Rather, the report indicated that
state consumer protection laws, such as CUTPA, also
qualified as predicate statutes, even though they are
laws of general applicability that do not expressly
address food and beverage marketing or labeling:
‘‘Every state has its own deceptive trade practices laws,
and a knowing violation of any of such state laws could
allow suits to go forward under the legislation if the
criteria specified . . . are met.’’71 H.R. Rep. No. 109-
130, p. 8 (2005).
We recognize that these bills never became law and
also that food and firearms are different types of prod-
ucts that implicate different risks and concerns. Never-
theless, we cannot ignore the fact that PLCAA and the
fast food bills were introduced at essentially the same
time, with substantially similar language and structure.72
See 2B N. Singer & J. Singer, Statutes and Statutory
Construction (7th Ed. 2012) § 51:4, pp. 275–76 (vetoed
bills and repealed statutes may be construed in pari
materia to assist in interpreting ambiguous legislation).
In light of this fact, there is good reason to believe that
legislators would have understood the term ‘‘statute
applicable to’’ in 15 U.S.C. § 7903 (5) (A) (iii) as similarly
encompassing an action under CUTPA against a com-
pany that unethically markets firearms for illegal pur-
poses.
3
The Legislative History of PLCAA
Finally, to the extent that any ambiguities remain
unresolved, we consider the legislative history of
PLCAA. Although the extensive history of the statute
presents something of a mixed bag, our review per-
suades us that Congress did not intend to limit the
scope of the predicate exception to violations of fire-
arms specific laws or to confer immunity from all claims
alleging that firearms sellers violated unfair trade prac-
tice laws.
During the legislative debates, opponents of the pro-
posed legislation that became PLCAA repeatedly ques-
tioned why it was necessary to confer immunity on the
firearms industry when, in their view, only a very small
number of gun violence related lawsuits had been filed
against firearms manufacturers and distributors, most
of which had been dismissed at the trial court level.73
In response, PLCAA’s sponsor and several of PLCAA’s
cosponsors described the specific types of lawsuits that
the legislation was intended to prohibit. See footnotes
74 and 76 of this opinion. They emphasized that their
primary concern was not with lawsuits such as the
present action, in which individual plaintiffs who have
been harmed in a specific incident of gun violence seek
to hold the sellers responsible for their specific miscon-
duct in selling the weapons involved. See id. Many pro-
ponents indicated that their intent was to preclude the
rising number of instances in which municipalities and
‘‘anti-gun activists’’ filed ‘‘junk’’ or ‘‘frivolous’’ lawsuits
targeting the entire firearms industry.74 As one cospon-
sor of the legislation explained, ‘‘[t]his bill is only
intended to protect law-abiding members of the fire-
arms industry from nuisance suits that have no basis
in current law, that are only intended to regulate the
industry or harass the industry or put it out of business
. . . which are [not] appropriate purposes for a law-
suit.’’75 151 Cong. Rec. 18,104 (2005), remarks of Senator
Max Sieben Baucus.76 In the present action, by contrast,
the private victims of one specific incident of gun vio-
lence seek compensation from the producers and dis-
tributors of a single firearm on the basis of alleged
misconduct in the specific marketing of that firearm.
Few if any of the bill’s sponsors indicated that cases
of this sort were what PLCAA was intended to preclude.
In addition, during the course of the legislative
debates, many legislators either expressly stated or
clearly implied that the only actions that would be
barred by PLCAA would be ones in which a defendant
bore absolutely no responsibility or blame for a plain-
tiff’s injuries and was, in essence, being held strictly
liable for crimes committed with firearms that it had
merely produced or distributed. See Ileto v. Glock, Inc.,
supra, 565 F.3d 1159 (Berzon, J., concurring in part
and dissenting in part). One cosponsor, for example,
emphasized that ‘‘the heart of this bill’’ was that one
can be held liable for violating a statute during the
production, distribution, or sale of firearms, ‘‘[b]ut we
are not going to extend it to a concept where you are
responsible, after you have done everything right, for
what somebody else may do who bought your product
and they did it wrong and it is their fault, not yours.’’
(Emphasis added.) 151 Cong. Rec. 18,920 (2005),
remarks of Senator Lindsey O. Graham. Another
cosponsor explained the essential evil to which the bill
was directed: ‘‘It is out of that fear and concern that
we have mayors and cities passing laws that create
strict liability . . . . [Firearms sellers have] become
. . . insurer[s] against criminal activity by criminals.’’
Id., 18,924, remarks of Senator Jefferson Beauregard
Sessions III. Senator Sessions added: ‘‘That is what we
are trying to curtail here—this utilization of the legal
system . . . .’’ Id.
A common theme running through supporters’ state-
ments was that holding a firearms seller liable for third-
party gun violence for which the seller is wholly blame-
less is no different from holding producers of products
such as automobiles, matches, baseball bats, and knives
strictly liable when those ubiquitous but potentially dan-
gerous items are inappropriately or illegally used to
commit crimes. As the author of PLCAA, Senator Craig,
explained: ‘‘If a gun manufacturer is held liable for the
harm done by a criminal who misuses a gun, then there
is nothing to stop the manufacturers of any product
used in crimes from having to bear the costs resulting
from the actions of those criminals. So as I mentioned
earlier, automobile manufacturers will have to take the
blame for the death of a bystander who gets in the way
of the drunk driver. The local hardware store will have
to be held responsible for a kitchen knife it sold, if later
that knife is used in the commission of a rape. The
baseball team whose bat was used to bludgeon a victim
will have to pay the cost of the crime. The list goes on
and on.’’ Id., 18,085. The implication of this argument
is that legislators’ primary concern was that liability
should not be imposed in situations in which the pro-
ducer or distributor of a consumer product bears abso-
lutely no responsibility for the misuse of that product
in the commission of a crime. There is no indication
that the sponsors of PLCAA believed that sellers of
those consumer products should be shielded from lia-
bility if, for example, an automobile manufacturer
advertised that the safety features of its vehicles made
them ideally suited for drunk driving, or if a sporting
goods dealer ran advertisements encouraging high
school baseball players to hurl their bats at the opposing
pitcher in retaliation for an errant pitch. That is, in
essence, what the plaintiffs have alleged in the present
case.
To the extent that supporters of PLCAA were con-
cerned with lawsuits other than those seeking to hold
firearms sellers strictly liable for gun violence, they
consistently expressed that their intention was to fore-
close novel legal theories that had been developed by
anti-gun activists with the goal of putting firearms sell-
ers out of business.77 The author of the legislation
explained as follows: ‘‘As we have stressed repeatedly,
this legislation will not bar the courthouse doors to
victims who have been harmed by the negligence or
misdeeds of anyone in the gun industry. Well recognized
causes of action are protected by the bill. Plaintiffs can
still argue their cases for violations of law . . . . The
only lawsuits this legislation seeks to prevent are novel
causes of action that have no history or grounding in
legal principle.’’ Id., 18,096, remarks of Senator Craig.
In addition, a number of lawmakers emphasized that
the legislation was primarily directed at heading off
unprecedented tort theories,78 which explains why the
predicate exception expressly preserved liability for
statutory violations. See Ileto v. Glock, Inc., supra, 565
F.3d 1135 (‘‘Congress clearly intended to preempt com-
mon-law claims, such as general tort theories of liabil-
ity’’); id., 1160–61 (Berzon, J., concurring in part and
dissenting in part) (‘‘[PLCAA] was viewed essentially
as a [tort reform] measure, aimed at restraining the
supposed expansion of tort liability’’).
As we discussed previously, the plaintiffs’ theory of
liability is not novel; nor does it sound in tort.79 The
plaintiffs allege that the defendants engaged in unfair
trade practices in violation of CUTPA, a statute that
was enacted in 1973. See P.A. 73-615. Furthermore,
CUTPA, by its express terms, is modeled on the FTC
Act; see General Statutes § 42-110b (b); which has been
in effect for more than one century. See Act of Septem-
ber 26, 1914, Pub. L. No. 63-203, 38 Stat. 717. As we
explained, the FTC Act and its state counterparts have
long been used to regulate not only the sale and market-
ing of firearms but also claims that sellers of other
dangerous products have advertised their wares in a
manner that modeled or promoted unsafe behavior and
created an unreasonable risk that viewers would engage
in unsafe or illegal conduct.80
The defendants, purporting to rely on the decision
of the Ninth Circuit in Ileto, argue that the legislative
history of PLCAA supports a more restrictive view of
the scope of the predicate exception. We read Ileto
differently. As we noted; see footnote 47 of this opinion;
the court in that case concluded that ‘‘congressional
speakers’ statements concerning the scope of . . .
PLCAA reflected the understanding that manufacturers
and sellers of firearms would be liable only for statutory
violations concerning firearm[s] regulations or sales
and marketing regulations.’’ (Emphasis added.) Ileto
v. Glock, Inc., supra, 565 F.3d 1137. Because CUTPA
specifically regulates commercial sales and marketing
activities such as those at issue in the present case;
see, e.g., Izzarelli v. R.J. Reynolds Tobacco Co., 117 F.
Supp. 2d 167, 178 (D. Conn. 2000); it falls squarely within
the predicate exception, as Ileto construed the legisla-
tive history.
We do not dispute that, over the course of the hun-
dreds of pages of coverage of the legislative debates,
a few congressional supporters of PLCAA made a few
brief references to predicate statutes as being firearms
specific.81 What the defendants have overlooked, how-
ever, are the dozens of statements by PLCAA’s drafter
and cosponsors that imply or directly state that the
predicate exception applies far more broadly, such that
firearms companies may be held liable for violation
of any applicable law, and not only those laws that
specifically govern the firearms trade. Indeed, in the
vast majority of instances in which the predicate excep-
tion was discussed during the legislative debates, pro-
ponents spoke in broad, general terms, indicating that
the bill would not immunize firearms companies that
had engaged in any illegal activity.82
Several cosponsors of the bill that became PLCAA
specifically explained that it would not preclude victims
of gun violence from holding firearms companies
accountable for injuries resulting from their gross negli-
gence or reckless conduct, because, essentially, any
such conduct would be in violation of some state or
federal law. See, e.g., 151 Cong. Rec. 18,919 (2005),
remarks of Senator Jon Llewellyn Kyl (‘‘[M]ost of the
acts that would meet the definition of gross negligence
would already be in violation of law. And if they are
in violation of law, they are not exempted from this
legislation. We don’t try to exempt any gun manufac-
turer for conduct [that] is in violation of law. So by
definition that would be an exemption from the provi-
sions of the bill . . . . The bottom line here is that if
there really is a problem, that is to say, the conduct is
so bad that it is a violation of law, no lawsuit is pre-
cluded under our bill in any way. . . . So in fact if the
gross negligence or reckless conduct of a person was
the proximate cause of death or injury—that is the
allegation—you are in court irrespective of this bill
. . . .’’); id., 18,922, remarks of Senator Orrin Grant
Hatch (‘‘[v]irtually any act that would meet the defini-
tion of gross negligence . . . would already be a viola-
tion of [f]ederal, [s]tate or local law, and therefore
would not receive the protection of this law anyway’’).
The clear implication of these comments is that the
predicate exception extends beyond firearms specific
laws and encompasses laws such as CUTPA, which
prohibit wholly irresponsible conduct such as the
wrongful advertising of potentially dangerous products
for criminal or illegal purposes.
The strongest support for the defendants’ reading of
the legislative history is a passing statement by the
author of PLCAA, Senator Craig, that ‘‘[t]his bill does
not shield . . . [those who] have violated existing law
. . . and I am referring to the [f]ederal firearms laws
. . . .’’ Id., 18,085. That statement was made, however,
in the context of a discussion of the federal record
keeping requirements that govern sales of firearms,
requirements that are indisputably specific to that
industry. At no point did Senator Craig suggest that, in
his opinion, the only state laws that qualify as predicate
statutes are those that specifically regulate the firearms
industry. Rather, on numerous occasions during the
legislative debates, Senator Craig categorically stated
that the bill was intended to protect only law abiding
firearms companies that had not violated any federal
or state law.83 ‘‘As we have stressed repeatedly,’’ Senator
Craig emphasized, ‘‘this legislation will not bar the
courthouse doors to victims who have been harmed by
the negligence or misdeeds of anyone in the gun indus-
try. Well recognized causes of action are protected by
the bill. Plaintiffs can still argue their cases for viola-
tions of law . . . .’’84 Id., 18,096. Accordingly, we con-
clude that the legislative history of PLCAA does not
support the defendants’ contention that Congress
intended to shield them from potential liability for the
types of CUTPA violations that the plaintiffs have
alleged.
VI
CONCLUSION
It is, of course, possible that Congress intended to
broadly immunize firearms sellers from liability for the
sort of egregious misconduct that the plaintiffs have
alleged but failed to effectively express that intent in the
language of PLCAA or during the legislative hearings.
If that is the case, and in light of the difficulties that
the federal courts have faced in attempting to distill
a clear rule or guiding principle from the predicate
exception, Congress may wish to revisit the issue and
clarify its intentions.
We are confident, however, that, if there were credi-
ble allegations that a firearms seller had run explicit
advertisements depicting and glorifying school shoot-
ings, and promoted its products in video games, such
as ‘‘School Shooting,’’ that glorify and reward such
unlawful conduct,85 and if a troubled young man who
watched those advertisements and played those games
were inspired thereby to commit a terrible crime like
the ones involved in the Sandy Hook massacre, then
even the most ardent sponsors of PLCAA would not
have wanted to bar a consumer protection lawsuit seek-
ing to hold the supplier accountable for the injuries
wrought by such unscrupulous marketing practices.
That is not this case, and yet the underlying legal princi-
ples are no different. Once we accept the premise that
Congress did not intend to immunize firearms suppliers
who engage in truly unethical and irresponsible market-
ing practices promoting criminal conduct, and given
that statutes such as CUTPA are the only means avail-
able to address those types of wrongs, it falls to a jury
to decide whether the promotional schemes alleged in
the present case rise to the level of illegal trade practices
and whether fault for the tragedy can be laid at their feet.
For the foregoing reasons, we conclude that the trial
court properly determined that, although most of the
plaintiffs’ claims should have been dismissed, PLCAA
does not bar the plaintiffs’ wrongful marketing claims
and that, at least to the extent that it prohibits the
unethical advertising of dangerous products for illegal
purposes, CUTPA qualifies as a predicate statute. Spe-
cifically, if the defendants did indeed seek to expand the
market for their assault weapons through advertising
campaigns that encouraged consumers to use the weap-
ons 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 judgment is reversed with respect to the trial
court’s ruling that the plaintiffs lack standing to bring
a CUTPA claim and its conclusion that the plaintiffs’
wrongful death claims predicated on the theory that
any sale of military style assault weapons to the civilian
market represents an unfair trade practice were not
barred under the applicable statute of limitations, and
the case is remanded for further proceedings according
to law; the judgment is affirmed in all other respects.
In this opinion McDONALD, MULLINS and KAHN,
Js., concurred.
* This case originally was scheduled to be argued before a panel of this
court consisting of Justices Palmer, McDonald, Robinson, Mullins, Kahn,
Vertefeuille and Elgo. Although Justices Robinson and Kahn were not present
when the case was argued before the court, they have read the briefs
and appendices, and listened to a recording of the oral argument prior to
participating in this decision.
The listing of justices reflects their seniority status on this court as of
date of oral argument.
1
Following the Sandy Hook massacre, the legislature added the Bushmas-
ter XM15, among many other assault rifles, to the list of firearms the sale
or transfer of which is prohibited in Connecticut. See Public Acts 2013, No.
13-3, § 25, codified at General Statutes (2014 Supp.) § 53-202a (1) (B) (xxi).
2
The plaintiffs are Donna L. Soto, administratrix of the estate of Victoria
L. Soto; Ian Hockley and Nicole Hockley, coadministrators of the estate of
Dylan C. Hockley; David C. Wheeler, administrator of the estate of Benjamin
A. Wheeler; Mary D’Avino, administratrix of the estate of Rachel M. D’Avino;
Mark Barden and Jacqueline Barden, coadministrators of the estate of Daniel
G. Barden; William D. Sherlach, executor of the estate of Mary Joy Sherlach;
Neil Heslin and Scarlett Lewis, coadministrators of the estate of Jesse
McCord Lewis; Leonard Pozner, administrator of the estate of Noah S.
Pozner; and Gilles J. Rousseau, administrator of the estate of Lauren G.
Rousseau. For convenience, we refer to these plaintiffs simply as ‘‘the dece-
dents’’ with respect to claims brought by the administrators in their fidu-
ciary capacity.
We note that one administrator, William D. Sherlach, also filed suit in his
individual capacity, seeking damages for loss of consortium. The parties
have not specifically briefed and we do not separately address William D.
Sherlach’s loss of consortium claims in this opinion.
We further note that Natalie Hammond, a staff member who was wounded
in but survived the attack, also was named as a plaintiff. Hammond has
abandoned her claims and, therefore, is not a party to this appeal.
3
The Bushmaster defendants are Bushmaster Firearms; Bushmaster Fire-
arms, Inc.; Bushmaster Firearms International, LLC; Remington Outdoor
Company, Inc.; Remington Arms Company, LLC; Bushmaster Holdings, LLC;
and Freedom Group, Inc.
4
The Camfour defendants are Camfour, Inc., and Camfour Holding, LLP,
also known as Camfour Holding, Inc.
5
The Riverview defendants are Riverview Sales, Inc., and David LaGuercia.
6
We will refer to Adam Lanza as Lanza and to Nancy Lanza as his mother.
7
General Statutes § 52-555 provides in relevant part: ‘‘(a) In any action
surviving to or brought by an executor or administrator for injuries resulting
in death, whether instantaneous or otherwise, such executor or administra-
tor may recover from the party legally at fault for such injuries just damages
together with the cost of reasonably necessary medical, hospital and nursing
services, and including funeral expenses, provided no action shall be brought
to recover such damages and disbursements but within two years from the
date of death, and except that no such action may be brought more than
five years from the date of the act or omission complained of. . . .’’
8
The parties and the amici disagree as to whether the term ‘‘assault rifle’’
is an appropriate moniker for this class of weapons. We use the term because
it is how the General Assembly has chosen to refer to semiautomatic fire-
arms. See General Statutes § 53-202a (1) (B) (xxi); see also Merrill v.
Navegar, Inc., 26 Cal. 4th 465, 470 n.3, 28 P.3d 116, 110 Cal. Rptr. 2d 370
(2001) (term has become widely accepted in law).
9
General Statutes § 42-110b (a) provides that ‘‘[n]o person shall engage
in unfair methods of competition and unfair or deceptive acts or practices
in the conduct of any trade or commerce.’’
Other relevant provisions of CUTPA are set forth in part IV of this opinion.
10
The referenced statutory provisions are set forth in part IV of this
opinion.
11
See 15 U.S.C. § 7903 (5) (A) (ii) (2012).
12
See 15 U.S.C. § 7903 (5) (A) (iii) (2012). This exception has come to be
known as the predicate exception because a plaintiff must allege a knowing
violation of a predicate statute.
13
The plaintiffs appealed to the Appellate Court from the judgment of the
trial court, and we transferred the appeal to this court pursuant to General
Statutes § 51-199 (c) and Practice Book § 65-1.
We granted permission to thirteen groups to appear and file amicus curiae
briefs in this appeal. Five of the amici have filed briefs in support of the
defendants’ position: (1) Connecticut Citizens Defense League, Inc.; (2)
Connecticut Defense Lawyers Association; (3) Gun Owners of America,
Inc., Gun Owners Foundation, United States Justice Foundation, The Heller
Foundation, and Conservative Legal Defense and Education Fund; (4)
National Rifle Association of America, Inc.; and (5) National Shooting Sports
Foundation. Eight of the amici have filed briefs in support of the plaintiffs’
position: (1) medical doctors Katie Bakes, William Begg, Barbara Blok,
Kathleen Clem, Christopher Colwell, Marie Crandall, Michael Hirsh, Stacy
Reynolds, Jeffrey Sankoff, and Comilla Sasson (physicians amici); (2) The
Brady Center to Prevent Gun Violence; (3) CT Against Gun Violence and
Tom Diaz; (4) Law Center to Prevent Gun Violence; (5) Newtown Action
Alliance and the Connecticut Association of Public School Superintendents;
(6) law professors Nora Freeman Engstrom, Alexandra D. Lahav, Anita
Bernstein, John J. Donohue III, Michael D. Green, Gregory C. Keating, James
Kwak, Douglas Kysar, Stephan Landsman, Anthony J. Sebok, W. Bradley
Wendel, John Fabian Witt, and Adam Zimmerman; (7) the State of Connecti-
cut and the Department of Consumer Protection; and (8) Trinity Church
Wall Street.
14
Although our conclusion that the plaintiffs’ primary theory—that the
legal sale of the AR-15 assault rifle to the civilian market constitutes an unfair
trade practice—is barred by the relevant statute of limitations disposes of
that theory; see part IV B of this opinion; we believe that that theory, if
timely presented, also would be barred by PLCAA immunity and/or the
Product Liability Act, General Statutes § 52-572n (a).
15
The standard of review regarding motions to strike is well established.
‘‘A motion to strike attacks the legal sufficiency of the allegations in a
pleading. . . . In reviewing the sufficiency of the allegations in a complaint,
courts are to assume the truth of the facts pleaded therein, and to determine
whether those facts establish a valid cause of action. . . . [I]f facts provable
in the complaint would support a cause of action, the motion to strike must
be denied. . . . Thus, we assume the truth of both the specific factual
allegations and any facts fairly provable thereunder. . . . Because a motion
to strike challenges the legal sufficiency of a pleading, and, consequently,
requires no factual findings by the trial court, our review of the court’s
ruling [on a motion to strike] is plenary.’’ (Citations omitted; internal quota-
tion marks omitted.) Himmelstein v. Windsor, 304 Conn. 298, 307, 39 A.3d
1065 (2012).
16
Although the plaintiffs do not specifically allege it, an investigation
revealed that Lanza killed his mother in their home prior to the massacre
and that the massacre ended when he took his own life in the school. Both
of those killings apparently were carried out with other firearms and are
not at issue in this case. See Division of Criminal Justice, State of Connecti-
cut, Report of the State’s Attorney for the Judicial District of Danbury on
the Shootings at Sandy Hook Elementary School and 36 Yogananda Street,
Newtown, Connecticut on December 14, 2012 (November 25, 2013) p. 2.
17
In addition to alleging that the defendants promoted the XM15-E2S for
illegal, offensive use by civilians, the plaintiffs contended in their briefs
and at oral argument before this court that the defendants’ marketing was
unethical and unscrupulous insofar as they (1) marketed the weapon to
unstable, or even mentally ill, teenaged boys who were likely to use the
rifle to commit violent assaults, (2) attempted to circumvent firearms sales
laws by marketing the weapon to legal buyers who would foreseeably pro-
vide them to family members who could not legally purchase such weapons,
and (3) further promoted the weapons for offensive use by unstable young
men by licensing them for placement in violent video games that promote
illegal civilian uses of military type assault rifles. Because these legal theories
are not clearly articulated in the operative complaint, however, we do not
consider them for purposes of this opinion.
18
Although the plaintiffs do not expressly allege it in their complaint, the
physicians amici contend that, according to the medical literature, assault
weapon advertisements may activate people who are predisposed to vio-
lence.
19
Title 15 of the 2012 edition of the United States Code, § 7903 (5) (B),
provides in relevant part: ‘‘[T]he term ‘negligent entrustment’ means the
supplying of a qualified product by a seller for use by another person when
the seller knows, or reasonably should know, the person to whom the
product is supplied is likely to, and does, use the product in a manner
involving unreasonable risk of physical injury to the person or others.’’
20
Title 15 of the 2012 edition of the United States Code, § 7903 (5) (A),
provides in relevant part: ‘‘The term ‘qualified civil liability action’ . . . shall
not include—
***
‘‘(ii) an action brought against a seller for negligent entrustment . . . .’’
21
As we explain hereinafter, there is, of course, a third option: it may be
foreseeable that the direct entrustee will share the dangerous item with a
specific, identifiable third party who is incompetent to use it safely. The
present case does not require us to determine whether and when an action
for negligent entrustment will lie under those circumstances, when the nexus
between the entrustor and the ultimate user is less attenuated than it is in
the present case.
22
See, e.g., The Republic of Plato (H. Davis trans., M. Walter Dunne 1901)
c. 5, p. 33 (arguing that, having taken temporary possession of weapons
from friend who was then in his right mind, it would be unjust to return
those weapons if friend, having since gone mad, demanded them back).
23
The plaintiffs expressly disclaim any allegation that Riverview’s employ-
ees were careless in their decision to sell the rifle to Lanza’s mother.
24
See, e.g., Dillon v. Suburban Motors, Inc., 212 Cal. Rptr. 360, 362–67
(Cal. App.), cause dismissed, 705 P.2d 1260, 218 Cal. Rptr. 584 (Cal. 1985);
Semeniuk v. Chentis, 1 Ill. App. 2d 508, 510, 117 N.E.2d 883 (1954); Sickles
v. Montgomery Ward & Co., 6 Misc. 2d 1000, 1001, 167 N.Y.S.2d 977 (1957);
Corey v. Kaufman & Chernick, Inc., 70 R.I. 27, 30–31, 36 A.2d 103 (1944).
25
The plaintiffs have drawn our attention to several cases in which the
dangerous instrumentality at issue was misused by someone other than the
direct entrustee. In each of those cases, however, the defendants had specific
reason to know or believe that the direct entrustee should not be trusted
with the instrumentality. See, e.g., Collins v. Arkansas Cement Co., 453 F.2d
512, 513–14 (8th Cir. 1972) (defendant’s employee who gave explosive to
children had history of horseplay with such explosives); LeClaire v. Com-
mercial Siding & Maintenance Co., 308 Ark. 580, 581–82, 826 S.W.2d 247
(1992) (defendant knew that employee, who allowed another driver to use
defendant’s vehicle, leading to accident, had history of intoxication and
moving violations); Rios v. Smith, 95 N.Y.2d 647, 653, 744 N.E.2d 1156, 722
N.Y.S.2d 220 (2001) (defendant knew that son often drove defendant’s all-
terrain vehicle [ATV] in unsafe manner and that son’s friend, whose misuse
of ATV injured plaintiff, was frequent visitor and previously had ridden ATV
with son).
26
General Statutes (Rev. to 1975) § 42-110b (a) provided in relevant part:
‘‘No person shall engage in unfair methods of competition . . . in the con-
duct of any trade or commerce. . . .’’ General Statutes (Rev. to 1975) § 42-
110a (4) defined ‘‘trade and commerce’’ as ‘‘the advertising, offering for sale,
sale, or distribution of any services and any property . . . .’’
27
See, e.g., 19 H.R. Proc., Pt. 6, 1976 Sess., pp. 2186–87, remarks of Repre-
sentative Ferrari.
28
See, e.g., 22 S. Proc., Pt. 8, 1979 Sess., p. 2575, remarks of Senator Steven
C. Casey; 19 S. Proc., Pt. 6, 1976 Sess., pp. 2276–78, remarks of Senator
Louis Ciccarello.
29
See, e.g., Bubalo v. Navegar, Inc., Docket No. 96 C 3664, 1997 WL 337218,
*9 (N.D. Ill. June 13, 1997), modified on other grounds, 1998 WL 142359
(N.D. Ill. March 20, 1998); S. Calkins, ‘‘FTC Unfairness: An Essay,’’ 46 Wayne
L. Rev. 1935, 1975–76 n.182 (2000); T. Lytton, ‘‘Halberstam v. Daniel and
the Uncertain Future of Negligent Marketing Claims Against Firearms Manu-
facturers,’’ 64 Brook. L. Rev. 681, 704–705 (1998).
30
We note that other courts and commentators have deemed this to be
a plausible theory of causation. See Friedman v. Highland Park, 784 F.3d
406, 411 (7th Cir.) (ban on assault weapons and large capacity magazines
may reduce carnage if mass shooting occurs), cert. denied, U.S. ,
136 S. Ct. 447, 193 L. Ed. 2d 483 (2015); Merrill v. Navegar, Inc., supra, 26
Cal. 4th 517 (Werdegar, J., dissenting) (reasonable juror could find that
features of assault pistol allowed shooter to kill and injure more victims
than would have been possible with conventional weapons); T. Lytton,
‘‘Halberstam v. Daniel and the Uncertain Future of Negligent Marketing
Claims Against Firearms Manufacturers,’’ 64 Brook. L. Rev. 681, 706 (1998)
(‘‘[i]f plaintiffs can somehow prove that a defendant’s marketing efforts
create a new market among individuals known to be likely to engage in
criminal activity who, but for the defendant’s efforts, would be less likely
to purchase a weapon . . . with the firepower of the defendant’s, then
[those] plaintiffs may be able to convince a jury on the issues of breach
and causation’’).
31
General Statutes § 42-110g (f) provides: ‘‘An action under this section
may not be brought more than three years after the occurrence of a violation
of this chapter.’’
32
Of course, on remand the defendants are not foreclosed from attempting
to demonstrate, in the context of a motion for summary judgment, that they
did not engage in any of the allegedly wrongful marketing activities within
three years prior to the date of the massacre.
33
We note that, although a ‘‘ ‘[p]roduct liability claim’ includes all claims
or actions brought for personal injury, death or property damage caused
by [among other things] the . . . marketing . . . of any product’’; General
Statutes § 52-572m (b); it is well established that the exclusivity provision
of the Product Liability Act applies only to those claims seeking to recover
damages caused by a defective product. Gerrity v. R.J. Reynolds Tobacco
Co., supra, 263 Conn. 128.
34
Although the defendants frame the issue as whether damages for wrong-
ful death are recoverable under CUTPA, the issue is more accurately charac-
terized as whether CUTPA permits recovery for personal injuries, fatal or
otherwise. Because death itself was not a recognized type of damage at
common law, ‘‘[d]eath and its direct consequences can constitute recover-
able elements of damages only if, and to the extent that, they are made so
by statute.’’ Lynn v. Haybuster Mfg., Inc., 226 Conn. 282, 295, 627 A.2d 1288
(1993). In fact, ‘‘[t]he wrongful death statute . . . is the sole basis [on]
which an action that includes as an element of damages a person’s death
or its consequences can be brought.’’ (Citation omitted.) Id. There is no
question, then, that CUTPA itself does not authorize the recovery of damages
for wrongful death.
35
We express no opinion as to under what other circumstances CUTPA
may allow recovery for personal injuries.
36
See R. Langer et al., 12 Connecticut Practice Series: Connecticut Unfair
Trade Practices, Business Torts and Antitrust (2018–19 Ed.) § 6.7, p. 850
(noting that Connecticut’s trial courts are divided on this question).
37
General Statutes § 42-110b (b) provides in relevant part that ‘‘[i]t is the
intent of the legislature that in construing subsection (a) of this section,
the commissioner and the courts of this state shall be guided by interpreta-
tions given by the Federal Trade Commission and the federal courts to
Section 5 (a) (1) of the Federal Trade Commission Act . . . .’’
38
We recognize that the FTC Act does not authorize a private right of action
and, therefore, that neither the FTC nor the federal courts, in construing
the FTC Act, have confronted the issue of whether a plaintiff harmed by
immoral marketing practices may recover for resulting personal injuries.
Nevertheless, we find it instructive that the FTC Act has been construed
to apply to unethical and unscrupulous marketing and other unfair trade
practices that are likely to result in primarily physical harms. See, e.g., In
re International Harvester Co., supra, 104 F.T.C. 1064.
39
The statute applies to sales of both firearms and ammunition. See, e.g.,
15 U.S.C. § 7903 (4) (2012). In the interest of simplicity, we use the term
‘‘firearm’’ to encompass ammunition as well.
40
The law provides that ‘‘[a] qualified civil liability action may not be
brought in any Federal or State court.’’ 15 U.S.C. § 7902 (a) (2012). ‘‘The
term ‘qualified civil liability action’ means a civil action or proceeding or
an administrative proceeding brought by any person against a manufacturer
or seller of a [firearm], or a trade association, for damages, punitive damages,
injunctive or declaratory relief, abatement, restitution, fines, or penalties,
or other relief, resulting from the criminal or unlawful misuse of a [firearm]
by the person or a third party . . . .’’ 15 U.S.C. § 7903 (5) (A) (2012).
41
See, e.g., 15 U.S.C. § 6211 (9) (2012) (for purposes of international
antitrust enforcement assistance, defining ‘‘regional economic integration
organization’’ as ‘‘an organization that is constituted by, and composed of,
foreign states, and on which such foreign states have conferred sovereign
authority to make decisions that are . . . directly applicable to and binding
on persons within such foreign states’’); 22 U.S.C. § 283ii (a) (2012) (‘‘securi-
ties guaranteed by the [Inter-American Investment] Corporation as to both
principal and interest to which the commitment in article II, section 2 (e)
of the agreement [establishing that Corporation] is expressly applicable,’’
are exempt from rules governing domestic securities); 26 U.S.C. § 833 (c)
(4) (B) (i) (2012) (health insurance organization is treated as existing Blue
Cross or Blue Shield organization for tax purposes if it is ‘‘organized under,
and governed by, State laws which are specifically and exclusively applicable
to not-for-profit health insurance or health service type organizations’’).
42
We recognize that the term ‘‘marketing’’ is facially ambiguous. One
dictionary in print at the time the statute was enacted defines ‘‘marketing’’
as follows: ‘‘1. The act or process of buying and selling in a market. 2.
The commercial functions involved in transferring goods from producer to
consumer. 3. The promotion of sales of a product, as by advertising and
packaging.’’ The American Heritage College Dictionary (4th Ed. 2007) p.
847. Notably, whereas the first two definitions are roughly synonymous
with the general concepts of distribution and sales, the third is limited to
advertising and other purely promotional functions.
In context, however, it is clear that the term ‘‘marketing’’ is used in PLCAA
in the third, narrower sense. As we noted, the predicate exception refers
to statutes ‘‘applicable to the sale or marketing of’’ firearms. 15 U.S.C. § 7903
(5) (A) (iii) (2012). Elsewhere, PLCAA refers to ‘‘[b]usinesses in the United
States that are engaged in interstate and foreign commerce through the
lawful design, manufacture, marketing, distribution, importation, or sale to
the public of firearms or ammunition products . . . .’’ 15 U.S.C. § 7901 (a)
(5) (2012). If the term ‘‘marketing’’ had been meant to encompass sales and
distribution, as well as advertising and the like, then Congress’ inclusion of
the terms ‘‘sale’’ and ‘‘distribution’’ would be superfluous. See, e.g., Milner
v. Dept. of the Navy, 562 U.S. 562, 575, 131 S. Ct. 1259, 179 L. Ed. 2d 268
(2011) (citing TRW, Inc. v. Andrews, 534 U.S. 19, 31, 122 S. Ct. 441, 151 L.
Ed. 2d 339 [2001], for proposition that statutes should be read to avoid
making any provision superfluous).
In addition, there are several other provisions of the statute in which the
drafters referred to the ‘‘sale’’ and ‘‘distribution’’ of firearms but did not
mention ‘‘marketing.’’ See, e.g., 15 U.S.C. § 7901 (a) (4) (2012); 15 U.S.C.
§ 7903 (1) (2012). We must assume that the drafters selected their language
with conscious intent, and that the use of the additional term ‘‘marketing’’
in the predicate exception is meant to import a distinct meaning. See, e.g.,
Russello v. United States, 464 U.S. 16, 23, 104 S. Ct. 296, 78 L. Ed. 2d 17 (1983).
Our conclusion that the meaning of the term ‘‘marketing’’ is limited to
advertising and promotional functions in the context of PLCAA finds addi-
tional support in the 2018 edition of 22 C.F.R. § 123.4 (a) (3), which permits
the temporary importation of certain defense articles, including arms, if an
item ‘‘[i]s imported for the purpose of exhibition, demonstration or marketing
in the United States and is subsequently returned to the country from which
it was imported . . . .’’ This is consistent with the more restrictive definition
of ‘‘marketing’’ in other federal regulations. See, e.g., 45 C.F.R. § 164.501
(2018). Several recently proposed federal bills that would have regulated
the firearms industry provide further support. H.R. 5093, 113th Cong. (2014),
for example, which would have directed the FTC to ‘‘promulgate rules . . .
to prohibit any person from marketing firearms to children’’; id., § 2 (a);
barred advertising practices such as ‘‘the use of cartoon characters to pro-
mote firearms and firearms products.’’ Id., § 2 (a) (1). Also instructive is
H.R. 2089, 115th Cong. (2017). One provision of that bill would have prohib-
ited ‘‘the manufacture, importation, sale, or purchase by civilians of the
Five-seveN Pistol . . . .’’ Id., § 2 (b) (2). Another provision references ‘‘the
current or historical marketing of the firearm’s capabilities . . . .’’ Id.,
§ 3 (b).
43
See Cal. Bus. & Prof. Code § 5272.1 (c) (2) (Deering Supp. 2018) (prohib-
iting firearms advertisements at public, multimodal transit facilities); N.J.
Admin. Code § 13:54-5.6 (2007) (establishing requirements for newspaper
advertisements of machine guns, assault firearms, and semiautomatic rifles);
R.I. Gen. Laws § 11-47-40 (b) (2002) (regulating advertisement of conceal-
able firearms).
44
Clearly, as one original cosponsor of the bill that became PLCAA; S.
397, 109th Cong. (2005); explained, legislators were of the view that such
laws do exist: ‘‘[P]laintiffs are demanding colossal monetary damages and
a broad range of injunctive relief . . . . These injunctions would relate to
the design, manufacture, distribution, marketing, and the sale of firearms.
We already have laws that cover all of that.’’ (Emphasis added.) 151 Cong.
Rec. 17,371 (2005), remarks of Senator Jefferson Beauregard Sessions III.
45
See, e.g., R. Petty, ‘‘Supplanting Government Regulation with Competitor
Lawsuits: The Case of Controlling False Advertising,’’ 25 Ind. L. Rev. 351,
359 (1991); M. Meaden, Comment, ‘‘Joe Camel and the Targeting of Minors
in Tobacco Advertising: Before and After 44 Liquormart v. Rhode Island,’’
31 New Eng. L. Rev. 1011, 1026–27 (1997).
46
The plaintiffs’ CUTPA claim is predicated on their contention that the
defendants ‘‘unethically, oppressively, immorally, and unscrupulously pro-
moted’’ the XM15-E2S. Commonly known as the ‘‘cigarette rule,’’ that stan-
dard originated in a policy statement of the Federal Trade Commission
issued more than one-half century ago; see Unfair or Deceptive Advertising
and Labeling of Cigarettes in Relation to the Health Hazards of Smoking,
29 Fed. Reg. 8324, 8355 (July 2, 1964); and rose to prominence when men-
tioned in a footnote in Federal Trade Commission v. Sperry & Hutchinson
Co., 405 U.S. 233, 244–45 n.5, 92 S. Ct. 898, 31 L. Ed. 2d 170 (1972). The
decades since have seen a move away from the cigarette rule at the federal
level. See Ulbrich v. Groth, 310 Conn. 375, 474–77, 78 A.3d 76 (2013) (Zarella,
J., concurring in part and dissenting in part); 12 R. Langer et al., supra,
§ 2.2, pp. 39–45. That move culminated with a revision of the FTC Act by
Congress in 1994, which codified the limitations on the FTC’s authority to
regulate unfair practices. See Federal Trade Commission Act Amendments
of 1994, Pub. L. No. 103-312, § 9, 108 Stat. 1691, 1695, codified at 15 U.S.C.
§ 45 (n) (1994). This court has characterized the federal standard for unfair
trade practices contained therein as ‘‘a more stringent test known as the
substantial unjustified injury test,’’ under which ‘‘an act or practice is unfair
if it causes substantial injury, it is not outweighed by countervailing benefits
to consumers or competition, and consumers themselves could not reason-
ably have avoided it.’’ Artie’s Auto Body, Inc. v. Hartford Fire Ins. Co., 317
Conn. 602, 622 n.13, 119 A.3d 1139 (2015).
The defendants have not asked us to reexamine our continued application
of the cigarette rule as the standard governing unfair trade practice claims
brought under CUTPA, and, therefore, the issue is not presently before us.
We recognize, however, that a question exists as to whether the cigarette
rule should remain the guiding rule as a matter of state law. See, e.g., id.,
(‘‘[i]n light of our conclusion . . . that the plaintiffs’ CUTPA claim fails
even under the more lenient cigarette rule, it is unnecessary for us to decide
whether that rule should be abandoned in favor of the federal test’’); Ulbrich
v. Groth, supra, 310 Conn. 429 (declining to review ‘‘the defendants’ unpre-
served claim that the cigarette rule should be abandoned in favor of the
substantial unjustified injury test’’); State v. Acordia, Inc., 310 Conn. 1, 29
n.8, 73 A.3d 711 (2013) (declining to ‘‘address the issue of the viability of
the cigarette rule until it squarely has been presented’’). At the same time,
notwithstanding the questions raised in those decisions, we have continued
to apply the cigarette rule as the law of Connecticut; see, e.g., Landmark
Investment Group, LLC v. CALCO Construction & Development Co., 318
Conn. 847, 880, 124 A.3d 847 (2015); and, even though we have flagged the
issue for reexamination by the legislature; see Artie’s Auto Body, Inc. v.
Hartford Fire Ins. Co., supra, 317 Conn. 622 n.13; the legislature has contin-
ued to acquiesce in our application of the cigarette rule.
In any event, even if we were to adopt the current federal standard
governing unfair advertising, it would not bar the plaintiffs’ CUTPA claims,
as they have alleged that the defendants engaged in trade practices that
caused substantial, unavoidable injury and that were not outweighed by
countervailing benefits. Still, on remand, the defendants are not foreclosed
from arguing that a different standard should govern the plaintiffs’
CUTPA claims.
47
Although the Ninth Circuit construed the predicate exception more
narrowly, that court also rejected a reading that would limit predicate stat-
utes to those that pertain exclusively to the sale or marketing of firearms,
recognizing that other statutes that regulate ‘‘sales and manufacturing activi-
ties’’ could qualify. Ileto v. Glock, Inc., supra, 565 F.3d 1134; see also id.,
1137 (legislative history indicates intent to restrict liability to ‘‘statutory
violations concerning firearm[s] regulations or sales and marketing regula-
tions’’ [emphasis added]). In Ileto, the Ninth Circuit held that the California
laws at issue did not qualify as predicate statutes, but it reached that conclu-
sion primarily because (1) California had codified its common law of tort,
which remained subject to judicial evolution; id., 1135–36; and (2) during
the legislative debates, members of Congress had referenced that very case
as an example of one that PLCAA would preclude. Id., 1137. In other words,
the fact the California statutes at issue were, in a sense, merely general tort
theories masquerading as statutes meant that the plaintiffs’ claims were
precisely the sort that Congress intended to preempt.
48
See In re Colt Industries Operating Corp., 84 F.T.C. 58, 61–62 (1974);
In re Browning Arms Co., 80 F.T.C. 749, 752 (1972); In re Ithaca Gun Co.,
78 F.T.C. 1104, 1107–1108 (1971).
49
In another Connecticut case, Ganim v. Smith & Wesson Corp., supra,
258 Conn. 313, the plaintiffs asserted CUTPA claims similar to those at
issue in the present case, alleging, among other things, that misleading and
unscrupulous firearms advertising contributed to gun violence. Id., 334–35.
Because the municipal plaintiffs lacked standing, however, we did not rule
on the validity of their CUTPA claims. See id., 343, 373.
A CUTPA violation also was alleged on the basis of conduct similar to
that at issue in the present case in Wilson v. Midway Games, Inc., 198 F.
Supp. 2d 167 (D. Conn. 2002). In that case, the plaintiff’s son had been
stabbed to death by a friend who had become obsessed with a violent
interactive video game. Id., 169. The plaintiff alleged, among other things,
that the defendant manufacturer of that game violated CUTPA by aggres-
sively and inappropriately marketing the game to a vulnerable adolescent
audience. See id., 175–76. The court dismissed the CUTPA claim for failure
to comply with CUTPA’s statute of limitations. Id., 176. In Izzarelli v. R.J.
Reynolds Tobacco Co., 117 F. Supp. 2d 167, 170–71 (D. Conn. 2000), by
contrast, the court denied a motion to dismiss the plaintiff’s claim that
the defendant violated CUTPA by unethically marketing tobacco products
to minors.
50
See, e.g., Melton v. Century Arms, Inc., 243 F. Supp. 3d 1290, 1306 (S.D.
Fla. 2017) (defective design action in which plaintiffs stated cognizable claim
under Florida unfair trade practice law that, among other things, advertising
falsely represented that AK-47 rifles are safe); Beretta U.S.A. Corp. v. Federal
Ins. Co., 117 F. Supp. 2d 489, 490, 492 (D. Md. 2000) (firearms manufacturer
sought defense and indemnification in underlying state actions alleging,
among other things, that manufacturer falsely advertised that gun ownership
and possession increased one’s security), aff’d, 17 Fed. Appx. 250 (4th Cir.
2001); People v. Arcadia Machine & Tool, Inc., Docket No. 4095, 2003 WL
21184117, *15, 22, 26–27 (Cal. Super. April 10, 2003) (granting summary
judgment for defendant manufacturers because plaintiffs failed to present
evidence that [1] reasonable consumers would be misled by defendants’
advertisements, or [2] California public policy disapproved of marketing
firearms to children, but allowing case to proceed against defendant distribu-
tors accused of advertising banned assault weapons), aff’d sub nom. In re
Firearm Cases, 126 Cal. App. 4th 959, 992, 24 Cal. Rptr. 3d 659 (2005);
Opinions, N.M. Atty. Gen. No. 77-23 (July 19, 1977) p. 149 (advertising illegal
sale of firearms in liquor establishment would constitute unfair or deceptive
trade practice); see also FN Herstal, S.A. v. Clyde Armory, Inc., 123 F.
Supp. 3d 1356, 1376 (M.D. Ga. 2015) (trademark infringement action), aff’d,
838 F.3d 1071 (11th Cir. 2016), cert. denied, U.S. , 137 S. Ct. 1436,
197 L. Ed. 2d 649 (2017); American Shooting Sports Council, Inc. v. Attorney
General, 429 Mass. 871, 875, 711 N.E.2d 899 (1999) (attorney general may
regulate firearms sales and marketing pursuant to state unfair trade practice
law in order to address sale of products that do not perform as warranted,
including those that pose safety and performance issues, as well as those
that legislature has defined as unlawful).
51
See, e.g., In re MACE Security International, Inc., 117 F.T.C. 168,
169–72, 181–84 (1994) (advertisements made unsubstantiated claims that
single, poorly directed spray of self-defense chemical would instantly stop
assailants); In re Benton & Bowles, Inc., 96 F.T.C. 619, 622–24 (1980) (adver-
tisements depicting children riding bicycles unsafely or illegally); In re AMF,
Inc., supra, 95 F.T.C. 313–15 (advertisements representing young children
riding bicycles and tricycles in improper, unsafe or unlawful manner); In re
Mego International, Inc., supra, 92 F.T.C. 189–90 (advertisements depicting
children using electrical toys and appliances near water without adult super-
vision); In re Uncle Ben’s, Inc., supra, 89 F.T.C. 136 (advertisements depicting
children attempting to cooking food without close adult supervision); In re
Hudson Pharmaceutical Corp., 89 F.T.C. 82, 86–89 (1977) (advertisements
that might induce children to take excessive amounts of vitamin supple-
ments); In re General Foods Corp., 86 F.T.C. 831, 839–40 (1975) (advertise-
ments depicting consumption of raw plants growing in wild or natural
surroundings); but see J. Vernick et al., ‘‘Regulating Firearm Advertisements
That Promise Home Protection: A Public Health Intervention,’’ 277 JAMA
1391, 1396 (1997) (for unstated reasons, FTC did not act on request by
various advocacy groups to adopt rules regulating firearm advertising).
52
Since that time, the FTC also has taken an interest in the marketing of
violent video games to children. See generally Federal Trade Commission,
Report to Congress, supra, 2009 WL 5427633.
53
As we previously noted; see footnote 47 of this opinion; although the
Ninth Circuit has construed the predicate exception more narrowly than
has the Second Circuit, CUTPA also might well qualify as a predicate statute
under the standard articulated in the Ninth Circuit’s decision in Ileto. Specifi-
cally, the court suggested that a predicate statute must either concern ‘‘fire-
arm[s] regulations or sales and marketing regulations.’’ (Emphasis added.)
Ileto v. Glock, Inc., 565 F.3d 1137; see also id., 1134 (statutory examples of
predicate statutes ‘‘target the firearms industry specifically’’ or ‘‘pertain
specifically to sales and manufacturing activities’’). Accordingly, insofar as
CUTPA specifically regulates commercial sales activities and is, therefore,
narrower in scope and more directly applicable than the general tort and
nuisance statutes at issue in Ileto, it arguably qualifies as a predicate statute
under the standards articulated by each of the three appellate courts to
have construed the federal statute.
54
Title 15 of the 2012 edition of the United States Code, § 7901 (a) (5),
provides: ‘‘Businesses in the United States that are engaged in interstate
and foreign commerce through the lawful design, manufacture, marketing,
distribution, importation, or sale to the public of firearms or ammunition
products that have been shipped or transported in interstate or foreign
commerce are not, and should not, be liable for the harm caused by those
who criminally or unlawfully misuse firearm products or ammunition prod-
ucts that function as designed and intended.’’
55
The standards embodied in the cigarette rule have been established
law—first federal, and then state—for nearly six decades. As one legal
scholar has explained, ‘‘at one time challenges to the depiction of unsafe
practices in advertisements [were] a staple of [FTC] unfairness enforcement
. . . .’’ (Footnote omitted.) S. Calkins, supra, 46 Wayne L. Rev. 1974. More-
over, even under the current federal unfairness standard, one of the FTC’s
primary areas of focus in challenging unfair trade practices has been ‘‘adver-
tising that promotes unsafe practices.’’ Id., 1962. The plaintiffs merely seek to
apply these established legal principles to the marketing of assault weapons,
products that are at least as dangerous as any that have been the subject
of prior FTC enforcement actions.
During the legislative debates, the author of PLCAA made clear that all
the law sought to preclude was novel causes of action, rather than specific
applications of established legal principles: ‘‘Plaintiffs can still argue their
cases for violations of law . . . . The only lawsuits this legislation seeks
to prevent are novel causes of action that have no history or grounding in
legal principle.’’ 151 Cong. Rec. 18,096 (2005), remarks of Senator Larry
Edwin Craig. In fact, the plaintiffs’ claims invoke a statutory cause of action
that falls squarely within established consumer protection law. See, e.g.,
Izzarelli v. R.J. Reynolds Tobacco Co., 117 F. Supp. 2d 167, 170–71, 178 (D.
Conn. 2000) (denying motion to dismiss claim that defendant violated CUTPA
by unethically and unscrupulously marketing cigarettes to underage smokers
and encouraging minors to violate law).
56
We further note that among the stated purposes of PLCAA was ‘‘[t]o
protect the right, under the First Amendment to the Constitution, of manufac-
turers, distributors, dealers, and importers of firearms or ammunition prod-
ucts, and trade associations, to speak freely . . . .’’ 15 U.S.C. § 7901 (b) (5)
(2012). We recognize that the advertisement and marketing of goods is a
quintessential form of commercial speech under established first amend-
ment jurisprudence. See, e.g., Zauderer v. Office of Disciplinary Counsel,
471 U.S. 626, 637, 105 S. Ct. 2265, 85 L. Ed. 2d 652 (1985). At the same time,
it is equally well settled that commercial speech that proposes an illegal
transaction or that promotes or encourages an unlawful activity does not
enjoy the protection of the first amendment. See, e.g., Village of Hoffman
Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 496, 102 S. Ct. 1186,
71 L. Ed. 2d 362 (1982); Pittsburgh Press Co. v. Pittsburgh Commission on
Human Relations, 413 U.S. 376, 388–89, 93 S. Ct. 2553, 37 L. Ed. 2d 669
(1973); see also Thompson v. Western States Medical Center, 535 U.S. 357,
367, 122 S. Ct. 1497, 152 L. Ed. 2d 563 (2002); Lamar Outdoor Advertising,
Inc. v. Mississippi State Tax Commission, 701 F.2d 314, 321–22 (5th Cir.
1983). In reviewing the propriety of a motion to strike, we are obligated to
assume the truth of the facts pleaded in the operative complaint. See, e.g.,
Himmelstein v. Windsor, supra, 304 Conn. 307. The plaintiffs’ complaint in
the present case alleges that the marketing in question promoted unlawful
activity, namely, the civilian use of the XM15-E2S ‘‘as a combat weapon
. . . for the purpose of waging war and killing human beings.’’ Accordingly,
the first amendment is not implicated by the claims as set forth by the
plaintiffs in their complaint.
57
We note that the Second Circuit, in considering whether a criminal
nuisance statute of general applicability qualified as a predicate statute,
indicated that the relevant legal question is whether a statute is applicable
to the sale or marketing of firearms as applied to the particular circumstances
of the case at issue, rather than facially applicable. See New York v. Beretta
U.S.A. Corp., supra, 524 F.3d 401 (discussing whether state statute at issue
had been applied to firearms suppliers ‘‘for conduct like that complained
of by the [plaintiff]’’); id., 400–401 n.4 (in future, another statute of general
applicability may be found to govern specific conduct complained of and,
thus, qualify as predicate statute). We agree that that is the proper lens
through which to consider the question, especially with respect to a statute
such as CUTPA, which authorizes a cause of action that encompasses a
number of distinct legal theories and principles. See 12 R. Langer et al.,
supra, § 2.1, p. 13.
58
Similar principles and presumptions apply if the issue is framed in terms
of whether PLCAA preempts the plaintiffs’ CUTPA action. As the United
States Supreme Court recently explained, ‘‘[a]mong the background princi-
ples of construction that our cases have recognized are those grounded in
the relationship between the [f]ederal [g]overnment and the [s]tates under
[the United States] [c]onstitution. It has long been settled, for example, that
we presume federal statutes do not . . . preempt state law . . . .’’ (Cita-
tions omitted.) Bond v. United States, 572 U.S. 844, 857–58, 134 S. Ct. 2077,
189 L. Ed. 2d 1 (2014). The court further explained: ‘‘Closely related . . .
is the [well established] principle that it is incumbent [on] the . . . courts
to be certain of Congress’ intent before finding that federal law overrides
the usual constitutional balance of federal and state powers. . . . [W]hen
legislation affect[s] the federal balance, the requirement of clear statement
[ensures] that the legislature has in fact faced, and intended to bring into
issue, the critical matters involved in the judicial decision.’’ (Citations omit-
ted; internal quotation marks omitted.) Id., 858. These principles apply with
particular force to congressional legislation that potentially intrudes into a
field, such as advertising, that traditionally has been occupied by the states.
See Altria Group, Inc. v. Good, supra, 555 U.S. 77.
59
See, e.g., 151 Cong. Rec. 19,119 (2005), remarks of Senator John Thune;
id., 19,120, remarks of Senator Larry Edwin Craig.
60
In part III of his dissenting opinion, Justice Robinson makes a similar
point, although framed in terms of the closely related canon of noscitur
a sociis.
61
With respect to the unlawful buyer exception set forth in 15 U.S.C.
§ 7903 (5) (A) (iii) (II), the referenced subsections of 18 U.S.C. § 922 prohibit
various persons, including convicted felons, illegal immigrants, and individu-
als indicted for felonies or addicted to controlled substances, from shipping,
transporting, or receiving firearms in interstate commerce. 18 U.S.C. §§ 922
(g) and (n) (2012). The unlawful buyer exception thus directly references
federal statutes that specifically regulate trade in firearms. Although the
record keeping exception set forth in 15 U.S.C. § 7903 (5) (A) (iii) (I) does
not expressly reference any specific statute, the language of that provision
closely mirrors that of 18 U.S.C. § 922 (m), which mandates compliance
with the record keeping requirements that govern federally licensed firearms
dealers. Moreover, the legislative history indicates that Congress drafted 15
U.S.C. § 7903 (5) (A) (iii) (I) with an eye toward regulations such as 27
C.F.R. § 478.39a (a) (1), which mandates that licensed firearms dealers report
lost or stolen weapons to the federal Bureau of Alcohol, Tobacco, Firearms
and Explosives no more than forty-eight hours after the loss or theft is
discovered. See 151 Cong. Rec. 18,937–38 (2005), remarks of Senator Larry
Edwin Craig.
62
See 151 Cong. Rec. 23,262 (2005), remarks of Representative Christopher
Van Hollen; see also id., 23261 remarks of Representative Frank James
Sensenbrenner, Jr.
63
151 Cong. Rec. 23,263 (2005), remarks of Representative Christopher
Van Hollen.
64
See, e.g., 151 Cong. Rec. 19,131 (2005), remarks of Senator Barbara
Boxer; id., 23,278, remarks of Representative Rahm Emanuel.
65
See 151 Cong. Rec. 17,372–73 (2005), remarks of Senator John Reed;
id., 23,263, remarks of Representative Christopher Van Hollen; H.R. Rep.
No. 108-59, p. 98 (2003); J. Jiang, ‘‘Regulating Litigation Under the Protection
of Lawful Commerce in Arms Act: Economic Activity or Regulatory Nullity?,’’
70 Alb. L. Rev. 537, 539–40 (2007).
66
See, e.g., 151 Cong. Rec. 18,937 (2005), remarks of Senator Larry Edwin
Craig (dealer violated federal record keeping laws); id., 19,128, remarks of
Senator Kathryn Ann Bailey Hutchison (dealer violated laws); id., 23,261,
remarks of Representative Frank James Sensenbrenner, Jr. (arguing that
plaintiffs could have established record keeping violations and noting that
federal Bureau of Alcohol, Tobacco, Firearms and Explosives report docu-
mented more than 300 such violations by dealer); see also id., 18,112, remarks
of Senator John William Warner (noting that both snipers were legally barred
from purchasing firearms).
67
See, e.g., 151 Cong. Rec. 23,020 (2005), remarks of Representative Phil
Gingrey (‘‘[t]his exception would specifically allow lawsuits against firearms
dealers such as the dealer whose firearm ended up in the hands of the
[Beltway] snipers who failed to maintain a required inventory list necessary
to ensure that they are alerted to any firearm thefts’’); id., 23,273, remarks
of Representative Frank James Sensenbrenner, Jr. (‘‘this exception would
specifically allow lawsuits against firearms dealers such as the dealer whose
firearm ended up in the hands of the [Beltway] snipers’’); see also id.,
18,066, remarks of Senator Dianne Feinstein (acknowledging that ‘‘new
modifications’’ to legislation were directed toward sniper case); id., 18,941,
remarks of Senator Barbara Ann Mikulski (alluding to Beltway snipers in
debating legislation).
68
See, e.g., Ali v. Federal Bureau of Prisons, 552 U.S. 214, 226–27, 128 S.
Ct. 831, 169 L. Ed. 2d 680 (2008); Watt v. Western Nuclear, Inc., 462 U.S.
36, 44 n.5, 103 S. Ct. 2218, 76 L. Ed. 2d 400 (1983); Millsap v. Andrus, 717
F.2d 1326, 1329 n.5 (10th Cir. 1983); United States v. Kaluza, Docket No.
12-265, 2013 WL 6490341, *21–23 (E.D. La. December 10, 2013), aff’d, 780
F.3d 647 (5th Cir. 2015).
69
We further observe that, during the legislative debates surrounding
PLCAA, the author and various cosponsors of the proposed legislation
repeatedly emphasized that it must be narrowly construed and that it pro-
tects only those firearms sellers who have not engaged in any illegal or
irresponsible conduct. See, e.g., 151 Cong. Rec. 17,371 (2005), remarks of
Senator Jefferson Beauregard Sessions III, id., 18,044, remarks of Senator
Craig; id., 18,911, remarks of Senator Craig; id., 19,137, remarks of Senator
Craig; id., 23,266, remarks of Representative Clifford Bundy Stearns.
70
See S. 908, 109th Cong. (2005); H.R. 554, 109th Cong. (2005).
71
See 1 N. Singer & J. Singer, Statutes and Statutory Construction (New
Ed. 2010) § 11:14, p. 565 (‘‘[committee] report is of great significance for
purposes of statutory interpretation’’); 2A N. Singer & S. Singer, supra, § 48:6,
p. 585 (‘‘courts generally view committee reports as the ‘most persuasive
indicia’ of legislative intent’’); 2A N. Singer & S. Singer, supra, § 48:6, pp.
588–89 (legislative intent clearly expressed in committee report trumps rules
of textual construction, such as ejusdem generis).
72
Notably, all but one of the thirty-two sponsors and cosponsors of S.
908 also cosponsored S. 397, 109th Cong. (2005), the bill that ultimately
became PLCAA, and the sponsor of each bill cosponsored the other.
73
See, e.g., 151 Cong. Rec. 18,099 (2005), remarks of Senator Christopher
John Dodd.
74
151 Cong. Rec. 18,058 (2005), remarks of Senator Coburn; id., 18,084,
18,100, 19,135, remarks of Senator Craig; id., 18,941–42, remarks of Senator
Richard John Santorum; id., 19,118–19, remarks of Senator John Thune; id.,
19,119, remarks of Senator Jefferson Beauregard Sessions III; id., 23,268,
remarks of Representative Robert William Goodlatte; id., 23,278, remarks
of Representative John J. H. Schwarz; see also Cincinnati v. Beretta U.S.A.
Corp., 95 Ohio St. 3d 416, 417, 768 N.E.2d 1136 (2002) (recognizing ‘‘[the]
growing number of lawsuits brought by municipalities against gun manufac-
turers and their trade associations to recover damages associated with the
costs of firearm violence incurred by the municipalities’’).
75
The House report on a substantially similar bill introduced during the
107th Congress explained the need for the legislation as follows: ‘‘There are
a number of legal theories under which plaintiffs are arguing [that] the
firearms industry should be held responsible, including improper or defective
distribution, unsafe design or product liability, and public nuisance. To date,
every case that has been litigated to conclusion has been dismissed . . . .’’
H.R. Rep. No. 107-727, pt. 1, p. 4 (2002). Notably, wrongful marketing claims
are not identified among the category of legal theories that Congress sought
to preclude.
76
The cosponsors further emphasized that plaintiffs in the cases of concern
were seeking legislative type equitable remedies, such as purchase limits
or restrictions on sales to small gun dealers. See, e.g., 151 Cong. Rec. 18,103
(2005), remarks of Senator Baucus; see also id., 18,059, remarks of Sena-
tor Coburn.
77
See, e.g., 151 Cong. Rec. 17,370 (2005), remarks of Senator Sessions;
id., 18,942, remarks of Senator Richard John Santorum; id., 19,119, 19,129,
remarks of Senator Orrin Grant Hatch; id., 19,120, remarks of Senator Craig;
78
See, e.g., 151 Cong. Rec. 19,120 (2005), remarks of Senator Craig; id.,
23,267, remarks of Representative Mike Pence; id., 23,273, remarks of Repre-
sentative Frank James Sensenbrenner, Jr.
79
We note, however, that there also is ample precedent for recognizing
wrongful marketing claims of this sort predicated on tort theories of liability.
See, e.g., Braun v. Soldier of Fortune Magazine, Inc., 968 F.2d 1110, 1112,
1114, 1122 (11th Cir. 1992) (affirming judgment for plaintiff under Georgia
common law when defendants published advertisement in which ‘‘merce-
nary’’ offered ‘‘[discreet] gun for hire,’’ resulting in murder of plaintiffs’
decedent), cert. denied, 506 U.S. 1071, 113 S. Ct. 1028, 122 L. Ed. 2d 173
(1993); Merrill v. Navegar, Inc., supra, 26 Cal. 4th 491 and n.9 (leaving
open possibility that California law recognizes cause of action for negligent
advertising premised on immoral promotion of criminal use of firearms);
Bubalo v. Navegar, Inc., Docket No. 96 C 3664, 1997 WL 337218, *9 (N.D.
Ill. June 13, 1997) (determining that Illinois law recognizes cause of action
for negligent marketing of assault pistols for criminal purposes but holding
that plaintiffs had failed to plead sufficient facts to establish causation),
modified on other grounds, 1998 WL 142359 (N.D. Ill. March 20, 1998);
Moning v. Alfono, 400 Mich. 425, 432, 254 N.W.2d 759 (1977) (question of
whether marketing slingshots directly to children creates unreasonable risk
of harm was for jury to resolve).
80
We further observe that, during the legislative debates, supporters of
the bill that became PLCAA frequently stated that more than one half of
the states in the country already had adopted similar laws and that PLCAA
was necessary primarily to establish uniform national standards and to
ensure that frivolous actions were not filed in the minority of jurisdictions
that had not enacted such protections. See, e.g., 151 Cong. Rec. 17,370
(2005), remarks of Senator Sessions; id., 23,020, remarks of Representative
Phil Gingrey; id., 23,024, remarks of Representative Charles Foster Bass;
id., 23,265, remarks of Representative Frederick C. Boucher; see also Ileto
v. Glock, Inc., supra, 565 F.3d 1136 (noting ‘‘Congress’ intention to create
national uniformity’’ in enacting PLCAA). As the author of a virtually identical
House bill explained, ‘‘[t]he bill we are considering today is designed to
simply mirror these [s]tates and what they have done to provide a unified
system of laws . . . .’’ 151 Cong. Rec. 23,266, remarks of Representative
Clifford Bundy Stearns.
Notably, most of the state laws to which PLCAA was analogized, by their
terms, bar only actions against firearms sellers brought by municipalities
and other public entities. See H.R. Rep. No. 108-59, p. 16 (2003). Indeed,
legislators recognized that ‘‘[m]any [states’] immunity statutes only limit
the ability of cities, counties, and other local governments to sue [gun
manufacturers and sellers].’’ Id. Moreover, of the state laws that provide
broader immunity to firearms sellers, many govern only product liability
actions; see, e.g., Idaho Code Ann. § 6-1410 (2004); N.C. Gen. Stat. § 99B-
11 (2017); S.C. Code Ann. § 15-73-40 (2005); Tex. Civ. Prac. & Rem. Code
Ann. § 82.006 (b) (West 2017); Wn. Rev. Code Ann. § 7.72.030 (1) (a) (West
2017); whereas others permit actions alleging the violation of any state law.
See, e.g., Ohio Rev. Code Ann. § 2305.401 (B) (3) (West 2017); see also Mich.
Comp. Laws Serv. § 28.435 (7) (LexisNexis 2015) (‘‘[a] federally licensed
firearms dealer is not liable for damages arising from the use or misuse of
a firearm if the sale complies with this section, any other applicable law of
this state, and applicable federal law’’). Accordingly, very few of the state
laws on which legislators purported to model PLCAA would even potentially
bar the types of wrongful marketing claims at issue in the present action.
81
See, e.g., 151 Cong. Rec. 18,085 (2005), remarks of Senator Craig; id.,
18,914, remarks of Senator Kathryn Ann Bailey Hutchison; id., 18,942,
remarks of Senator Richard John Santorum.
82
See, e.g., 151 Cong. Rec. 17,370–71 (2005), remarks of Senator Sessions
(‘‘Why would the manufacturer or seller of a gun who is not negligent,
who obeys all of the applicable laws—we have a host of them—be held
accountable . . . ? . . . I don’t understand how . . . [a product that is]
sold according to the laws of the United States [can create legal liability]
for an intervening criminal act.’’); id., 17,371, remarks of Senator Sessions
(‘‘Manufacturers and sellers are still responsible for their own negligent or
criminal conduct and must operate entirely within the complex [s]tate and
[f]ederal laws. . . . Plaintiffs can go to court if the gun dealers do not follow
the law . . . .’’); id., 17,377, remarks of Senator Sessions (‘‘Under this bill,
I think it is very important to note that you can sue gun sellers and manufac-
turers who violate the law. It is crystal clear in the statute that this is so.’’);
id., 17,390, remarks of Senator Orrin Grant Hatch (‘‘This bill is not a license
for the gun industry to act irresponsibly. If a manufacturer or seller does
not operate entirely within [f]ederal or [s]tate law, it is not entitled to the
protection of this legislation.’’ [Emphasis added.]); id., 18,059, remarks of
Senator Coburn (‘‘[m]anufacturers and sellers are still responsible for their
own negligent or criminal conduct and must operate entirely within the
[f]ederal and [s]tate laws’’ [emphasis added]); id., 18,103, remarks of Senator
Baucus (bill confers immunity on ‘‘[b]usinesses that comply with all applica-
ble [f]ederal and [s]tate laws’’ [emphasis added]); id., remarks of Senator
Baucus (‘‘This bill . . . will not shield the industry from its own wrongdoing
or from its negligence . . . . For example, the bill will not require dismissal
of a lawsuit if a member of the industry breaks the law . . . .’’); id., 18,942,
remarks of Senator Richard John Santorum (PLCAA is ‘‘narrowly crafted’’
law that continues to hold responsible ‘‘individuals and companies that
knowingly violate the law’’); id., 19,118–19, remarks of Senator John Thune
(‘‘This bill . . . [protects] innocent . . . gun manufacturers and gun deal-
ers . . . who have abided by the law . . . [but] allows suits against manu-
facturers . . . for violating a law in the production or sale of a firearm
. . . . These are not arbitrary standards . . . . They are established legal
principles that apply across the board to all industries.’’); id., 23,020, remarks
of Representative Phil Gingrey (exception applies to violations of ‘‘a [s]tate
or [f]ederal statute applicable to sales or marketing’’); id., 23,265, remarks
of Representative Frederick C. Boucher (‘‘[t]he bill . . . does not affect
suits against anyone who has violated other [s]tate or [f]ederal laws’’); id.,
23,266, remarks of Representative Clifford Bundy Stearns (‘‘[T]his legislation
is very narrowly tailored to allow suits against any bad actors to proceed.
It includes carefully crafted exceptions . . . for . . . criminal behavior by
a gun maker or seller . . . .’’); id., 23,274, remarks of Representative Frank
James Sensenbrenner, Jr. (‘‘This is a carefully crafted bill. It provides immu-
nity for people who have not done anything wrong . . . but it does allow
lawsuits to proceed against the bad actors.’’); id., remarks of Representative
Steny Hamilton Hoyer (bill provides immunity ‘‘unless a manufacturer or
seller of arms acts in some wrongful or criminal way’’).
83
See, e.g., 151 Cong. Rec. 2561 (2005) (‘‘These lawsuits are based [on]
the notion that even though a business complies with all laws and sells a
legitimate product, it should be held responsible . . . . [PLCAA] specifi-
cally provides that actions based on the wrongful conduct of those involved
in the business of manufacturing and selling firearms would not be affected
by this legislation. The bill is solely directed to stopping abusive, politically
driven litigation . . . .’’ [Emphasis added.]); id., 18,057 (‘‘[t]his bill gives
specific examples of lawsuits not prohibited . . . lawsuits based on viola-
tions of [state] and [f]ederal law’’); id., 18,057–58 (‘‘Any manufacturer, distrib-
utor, or dealer who knowingly violates any [s]tate or [f]ederal law can be
held civilly liable under the bill. This bill does not shut the courthouse door.
. . . Current cases [in which] a manufacturer, distributor, or dealer know-
ingly violates a [s]tate or [f]ederal law will not be thrown out.’’ [Emphasis
added.]); id., 18,061 (‘‘[This bill] does not protect firearms . . . manufactur-
ers, sellers or trade associations from any lawsuits based on their own
negligence or criminal conduct. The bill gives specific examples of lawsuits
not prohibited. Let me repeat, not prohibited: Product liability . . . [n]egli-
gence or negligent entrustment, breach of contract, lawsuits based on a
violation of [s]tate and [f]ederal law, it is very straightforward, and we think
it is very clear.’’); id., 18,085 (‘‘Finally, this bill does not protect any member
of the gun industry from lawsuits for harm resulting from any illegal actions
they have committed. Let me repeat it. If a gun dealer or manufacturer
violates the law, this bill is not going to protect them . . . .’’ [Emphasis
added.]); id., 18,096 (‘‘[i]f manufacturers or dealers break the law or commit
negligence, they are still liable’’); id., 18,911 (‘‘this legislation [has come] to
the floor to limit the ability of junk or abusive kinds of lawsuits in a very
narrow and defined way, but in no way—and I have said it very clearly—
denying the recognition that if a gun dealer or a manufacturer acted in an
illegal or irresponsible way . . . this bill would not preempt or in any way
protect them’’); id., 19,136–37 (‘‘[t]his bill will not prevent a single victim from
obtaining relief for wrongs done to them by anyone in the gun industry’’);
id., 19,137 (‘‘This bill is intended to do one thing, and that is to end the
abuse that is now going on in the court system of America against law-
abiding American businesses when they violate no law. . . . But if that law-
abiding citizen violates the law . . . then they are liable.’’ [Emphasis
added.]).
84
Indeed, Senator Craig suggested during the legislative debates that a
law as broadly applicable as a local zoning regulation could qualify as a
predicate statute. See 151 Cong. Rec. 18,096 (2005).
85
As the amici Newtown Action Alliance and Connecticut Association of
Public School Superintendents stated in their amicus brief, at the time of
the Sandy Hook massacre, Lanza owned a computer game entitled ‘‘School
Shooting,’’ in which the player enters a school and shoots at students.