Connecticut Supreme Court Finds CUTPA Claim Trumps Federal Statutory Immunity

March 27, 2019

On March 14, the Connecticut Supreme Court issued its ruling in Donna Soto, et al. v. Bushmaster Firearms International, LLC, et al. (SC 19832), a lawsuit stemming from the Dec. 14, 2012, mass shooting at Sandy Hook Elementary School in Newtown, Connecticut. That lawsuit saw the plaintiffs — administrators of the estates of nine of the victims — bring a variety of claims against defendant Bushmaster, the manufacturer of the XM15-E2S modern sporting rifle used by the shooter. These include a negligent entrustment claim for wrongful death and a claim based on the Connecticut Unfair Trade Practices Act (CUTPA).

At the trial court level, Bushmaster and the other defendants moved to strike all of the plaintiffs’ claims based on the federal Protection of Lawful Commerce in Arms Act (PLCAA). The PLCAA, with some exceptions, makes firearms manufacturers immune from civil lawsuits based on criminal or unlawful use of the firearms that they manufacture.

The Connecticut Supreme Court found that the PLCAA barred most of the plaintiffs’ claims, but that one of the exceptions allowed a “wrongful marketing” claim under CUTPA to survive. The plaintiffs allege that Bushmaster and the other defendants marketed the XM15-E2S by “extolling the militaristic and assaultive qualities of their AR-15 rifles and, specifically, the weapon’s suitability for offensive combat missions” and that this marketing strategy constituted an unethical marketing and trade practice under CUTPA.

According to the Connecticut Supreme Court, this allegation was sufficient to fall into what is known as the PLCAA “predicate” exception, which allows a lawsuit to continue when “a manufacturer or seller of a [firearm] knowingly violated a State or Federal statute applicable to the sale or marketing of the [firearm], and the violation was a proximate cause of the harm for which relief is sought[.]” 15 U.S.C. § 7903(5)(A)(iii).

This limitation of PLCAA poses obvious problems for firearms manufacturers, who will likely face a raft of new litigation based on alleged violations of state consumer protection statutes. Given the breadth of those statutes, the predicate exception threatens to swallow the whole of the protective effect of the statute.

The case also poses a cautionary tale for manufacturers of other products: Don’t count entirely on statutory protections in the face of a plaintiff-friendly consumer protection regime.