TABLE OF CONTENTS
I. PROCEDURAL HISTORY...273
II. ALLEGED FACTS...275
III. NEGLIGENT ENTRUSTMENT...278
IV. WRONGFUL DEATH AND CUTPA: ISSUES OF STATE LAW...283
A. CUTPA Standing...285
B. Statute of Limitations...291
C. Connecticut Product Liability Act Preemption...295
D. CUTPA Personal Injury Damages...296
V. WRONGFUL DEATH AND CUTPA: ISSUES OF FEDERAL LAW...300
A. PLCAA Overview...300
B. The Plain Language of the Statute...301
C. Extrinsic Evidence of Congressional Intent...312
On December 14, 2012, twenty year old Adam Lanza forced his way into Sandy Hook Elementary 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 manufactured, 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 Protection 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 exceptions, 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 Connecticut law and/or PLCAA. For example, we expressly reject the plaintiffs' theory that, merely by selling semiautomatic rifles—which were legal at the time
The plaintiffs have offered one narrow legal theory, however, that is recognized under established Connecticut 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 Connecticut from the pernicious practices alleged in the present case. The
The plaintiffs brought the present action in 2014, seeking damages and unspecified injunctive relief.
The defendants' moved to strike the plaintiffs' complaint, 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 common law, and, to the extent that their claims are predicated on alleged CUTPA violations, they are legally insufficient because, among other things, (1) the plaintiffs 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 exclusivity provision of the Connecticut Product Liability Act (Product Liability Act).
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)
Although the trial court rejected most of the defendants' arguments, the court concluded that (1) the plaintiffs' 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 conclusions.
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 plaintiffs.
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 unstable 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 manufactured and sold by the Bushmaster defendants.' Sometime 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 seventeen 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 eighteen 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 magazines. 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 reloading. 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 Classroom 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.
The plaintiffs' second theory of liability is that the defendants' advertised and marketed the XM15-E2S in an unethical, oppressive, immoral and unscrupulous manner. They contend that the defendants' have sought to grow the AR-15 market by extolling the militaristic and assaultive qualities of their AR-15 rifles and, specifically, the weapon's suitability for offensive combat missions. The plaintiffs argue that the defendants' militaristic marketing reinforces the image of the AR-15 as a combat weapon that is intended to be used for the purposes of waging war and killing human beings. Consistent with that image, the defendants' further promoted the XM15-E2S as a combat weapon system by designating in their product catalogues that the rifle comes "standard" with a 30 round magazine which, the plaintiffs allege, differs from how the defendants' promote and sell rifles for legal civilian purposes such as hunting and sport shooting.
The plaintiffs further contend that the defendants' unethically promoted their assault weapons for offensive, military style missions by publishing advertisements 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 jungles, armed with Bushmaster rifles, (3) feature the slogan "[w]hen you need to perform under pressure, Bushmaster delivers," superimposed over the silhouette of a soldier holding his helmet against the backdrop of an American flag, (4) tout the "military proven performance" 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
Finally, with respect to this second, wrongful marketing 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 contend 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 handguns, 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 marketed association with the military.
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 allegations 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).
The following additional procedural history is relevant 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).
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 automobiles should fall into unfit hands. See J. Fisher, Comment, "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.
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,
American courts began applying the doctrine of negligent 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 company entrusted a loaded pistol to an employee who later instigated a fight with and ultimately shot the plaintiff, a customer's night watchman. Id., at 708-11, 110 A. 540 (preliminary statement of facts). This court held that there was insufficient 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 ... attributed 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., at 716, 110 A. 540. "Without this vitally important fact," the court concluded, "the plaintiff's claim falls to the ground...." Id.
Other Connecticut cases decided in the early twentieth century, although not always expressly resolved under the rubric of negligent entrustment, also suggested 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 accidentally 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., at 500, 97 A. 753.
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 subsequently caused an accident while attempting to pass the plaintiff's vehicle. See Greeley v. Cunningham, supra, at 517-18, 165 A. 678. "[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
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 knowledge 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, February, 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." (Emphasis added.) 2 Restatement (Second), Torts § 308, p. 100 (1965). Section 390, which further defines the tort of negligent entrustment, provides that "[o]ne who supplies ... 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 demonstrate 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.
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
We decline the plaintiffs' invitation to stretch the doctrine of negligent entrustment so far beyond its historical moorings. We recognize that some of our sister state courts have permitted negligent entrustment actions to proceed when, although there was no indication 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.
We also recognize that there is authority for the proposition 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
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 Sellers?" 39 U. Fla. L. Rev. 925, 928 (1987). In some instances, a person may be unsuited to drive an automobile 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, however, that certain classes of people—e.g., young children 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 temperament. 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 different. 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 unlawfully. 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 out-weigh 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, 110 Cal.Rptr.2d 370, 28 P.3d 116 (2001); see also Phillips v. Lucky Gunner, LLC, 84 F.Supp.3d 1216, 1226 (D. Colo. 2015) (rejecting theory that unmediated online sales of hazardous items represent negligent entrustment), 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.
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
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 arguments. The court agreed with the defendants', however that CUTPA does not afford protection to persons who do not have a consumer or other commercial relationship 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 defendants' 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 civilian 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 Connecticut 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 defendants':
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 concluded that they lack standing to pursue
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 survived. 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 relationship (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: Accordingly, 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 meaning of the statutory text must be our lodestar. See General 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 suffered 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 ambiguous in this regard, we perceive nothing in the legislative 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 purchases or leases
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 property, real or personal, as a result [of a prohibited practice]...." 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 additional category of plaintiffs, namely, those whose injuries were not the result of a direct consumer purchase or lease of goods or services. Presumably recognizing that the original category of CUTPA plaintiffs (consumer 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 legislative 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 services for sale.
It is true that the primary concern of those representatives 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 advertising. It is, of course, possible that the legislature wanted the department to be able to curtail wrongful advertising campaigns at their inception, without having 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 purchased goods or services in reliance on such advertisements. 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 act
More directly on point is the testimony of Assistant Attorney General Arnold Feigen, which was offered on behalf of Attorney General Carl Ajello and Commissioner of Consumer Protection Mary Heslin, before the General Law Committee. See Conn. Joint Standing Committee Hearings, General Law, Pt. 4, 1979 Sess., p. 1159. Testifying in favor of the 1979 amendment that eliminated 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 relationship requirement when it amended CUTPA. See Vacco v. Microsoft Corp., supra, 260 Conn. at 86-87 and n.30, 793 A.2d 1048.
The defendants', while implicitly acknowledging that the plain language of § 42-110g (a) no longer imposes a business relationship requirement, offer two arguments 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.
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. at 59, 793 A.2d 1048, 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. at 88, 793 A.2d 1048. We proceeded to clarify, however, that the elimination of the privity requirement did not mean that anyone could bring a CUTPA action, no matter how attenuated the connection between his or her injuries and a defendant's allegedly unfair trade practices. "Notwithstanding the elimination of the privity requirement," we explained, "it strains credulity to conclude 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 reasonably 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 traditional common-law principles of remoteness and proximate causation to determine whether a party has standing to bring an action under CUTPA." (Footnote omitted.) Id. Notably, we cited Ganim v. Smith & Wesson 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 derivative" with respect to the challenged conduct for the plaintiffs to have standing to bring a CUTPA claim. Vacco v. Microsoft Corp., supra, at 88-89, 793 A.2d 1048, citing Ganim v. Smith & Wesson Corp., supra, at 344, 365, 780 A.2d 98. We proceeded in Vacco to apply the same three part remoteness analysis 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, at 90-92, 793 A.2d 1048; see Ganim v. Smith & Wesson Corp., supra, at 353, 780 A.2d 98. Accordingly, Vacco stands for the proposition 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 relationship 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. at 109, 112, 881 A.2d 937. We concluded, as a matter of law, that, even if the property owners had been able to prove their allegations,
As an alternative, independent basis for upholding the trial court's decision to strike the property owners' CUTPA claims, we briefly considered the property owners' 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 proposition. Id., at 157-58, 881 A.2d 937. Significantly, in contrast to the present 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. at 90-92, 793 A.2d 1048. 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 principles 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]onsidering 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 conduct 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., at 729, 627 A.2d 374. 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 outside 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 prudential 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
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 manufacturers, trade associations, and retail gun sellers to recoup various municipal costs associated with gun violence, including increased police and emergency services, loss of investment, and victimization of Bridgeport's citizens. Id., at 315-16, 326-27, 780 A.2d 98. 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., at 353, 780 A.2d 98. Moreover, we observed that one easily could identify several sets of potential plaintiffs 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., at 359, 780 A.2d 98.
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.
More fundamentally, in this case, unlike in Ganim, it is the direct victims of gun violence who are challenging the defendants' conduct; no private party is better situated than the plaintiffs to bring the action. 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 representations; 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 immediate 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 commercial. 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 others, 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.
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
The following additional procedural history is relevant 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' wrongful 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 Statutes § 42-110g (f).
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 controlling 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 statute. 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 apparent conflict between the statutes of limitations contained in §§ 42-110g (f) and 52-555 (a). Relying on the decision of the Appellate Court in Pellecchia v. Connecticut Light & Power Co., 139 Conn.App. 88, 90, 54 A.3d 658 (2012) (adopting trial court's memorandum of decision in Pellecchia v. Connecticut Light & Power Co., 52 Conn.Sup. 435, 54 A.3d 1080 ), cert. denied, 307 Conn. 950, 60 A.3d 740 (2013), the trial court concluded 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
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 medical malpractice claims, governed in a wrongful death action based on malpractice. Id., at 385, 16 A.2d 833; 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 legislative 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., at 749, 150 A.3d 1109 (time limitation is "essential and integral" to existence 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).
That argument, although perhaps facially attractive, is precluded by a long line of cases holding that Connecticut'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 administrator 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., Sanderson v. Steve Snyder Enterprises, Inc., 196 Conn. 134, 149, 491 A.2d 389 (1985); Foran v. Carangelo, supra, 153 Conn. at 360, 216 A.2d 638; 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 wrongful 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 cannot 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 person 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 manufacture, 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
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 Liability 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 provides 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 unreasonable and dangerous; and (2) the defendants' marketed and promoted the XM15-E2S in an unethical, oppressive, immoral, and unscrupulous manner. The defendants' primary argument with respect to the Product Liability Act relates `to the plaintiffs' first theory of liability. 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 liability, 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 purposes—offensive, military style assault missions—amounts to a product defect claim.
The defendants' sole argument in this regard is their contention that, in Merrill v. Navegar, Inc., supra, 26 Cal. 4th at 465, 110 Cal.Rptr.2d 370, 28 P.3d 116, 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., at 470, 110 Cal.Rptr.2d 370, 28 P.3d 116; 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 substantially 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, at 470, 480-81, 110 Cal.Rptr.2d 370, 28 P.3d 116.
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 manufacturer, 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., at 471, 110 Cal.Rptr.2d 370, 28 P.3d 116. In holding that the trial court had properly granted Navegar's motion for summary judgment with respect to those "more inflammatory aspects of Navegar's advertising"; id., at 489, 110 Cal.Rptr.2d 370, 28 P.3d 116; 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 disavowed any claims based on the specific content of Navegar's advertising; id., at 474, 487-88, 110 Cal.Rptr.2d 370, 28 P.3d 116; 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., at 471, 473, 488-91, 110 Cal.Rptr.2d 370, 28 P.3d 116. Accordingly, we do not read Merrill as supporting the defendants' contention that the wrongful 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 represent 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. at 124, 128, 818 A.2d 769 (analyzing language of exclusivity 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 Liability Act).
CUTPA Personal Injury Damages
We next consider the defendants' argument that personal injuries resulting in death do not give rise to cognizable
Whether personal injuries give rise to cognizable CUTPA damages presents a question of statutory interpretation. We begin by setting forth the relevant statutory 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) provides that any person so injured "may bring an action ... to recover actual damages." This provision of subsection (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 ascertainable loss of money or property in order to have standing to bring a CUTPA action, once the standing requirements 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 damages. 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 expansive to encompass personal injuries.
The defendants', by contrast, argue that the ascertainable 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. Insofar as both of these interpretations of the statutory language are facially plausible,
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: Connecticut 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 Statutes § 53-452 (a) provides in relevant part that "[a]ny person whose property or person is injured by [a computer 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...." (Emphasis added.)
In addition, the plaintiffs' interpretation of the statute better comports with our analysis in Hinchliffe v. American Motors Corp., supra, 184 Conn. at 612-20, 440 A.2d 810. 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., at 612-13, 440 A.2d 810. 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., at 613-15, 440 A.2d 810. 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 attorneys general when they spot an apparently deceptive advertisement in the newspaper, on television or in a store window." Id., 615 n.6, 440 A.2d 810, 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
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.
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 example, the FTC has required companies to refrain from advertising that depicts young children operating bicycles and tricycles in an unsafe or unlawful manner; In re AMF, Inc., 95 F.T.C. 310, 313-15 (1980); advertising the use of electric hairdryers by children in close proximity to a filled bathroom
In 1997, Federal Trade Commissioner Roscoe B. Starek III underscored the FTC's interest in combating unfair trade practices that may result in physical injuries to children: "Although injury must be both substantial and likely" to draw the FTC's attention, "unwarranted health or safety risks can suffice." R. Starek III, "The ABCs at the FTC: Marketing and Advertising 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 Commission, Report to Congress, "Marketing Violent Entertainment 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 practices 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 protection 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.
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 plaintiffs' wrongful death claims. Our review of the federal statute persuades us that the trial court correctly concluded that CUTPA, as applied to the plaintiffs' allegations, falls within one of PLCAA's exceptions.
PLCAA generally affords manufacturers
"[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.) Webster 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 ambiguous, then we must construct an interpretation consistent with the primary purpose of the statute as a whole.... Thus, our interpretive process will begin by inquiring whether the plain language of [the] statute, when given its ordinary, common meaning ... is ambiguous." (Citations omitted; internal quotation marks omitted.) Id., at 555-56, 830 A.2d 139. 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).
The Plain Language of the Statute
Both the plaintiffs and the defendants' contend that the plain language of
Although we agree with the plaintiffs that their reading of the statutory language is the better one, we recognize that the defendants' interpretation is not implausible. 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 statutory language and these extrinsic sources persuades us that Congress did not mean to preclude actions alleging that firearms companies violated state consumer protection laws by promoting their weapons for illegal, criminal purposes.
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 construed 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 marketing of firearms), transfer denied, 915 N.E.2d 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 Dictionary, 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 at 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 firearms, however, it easily could have used such language, as it has on other occasions.
The Statutory Framework
In construing the predicate exception, we also must consider the broader statutory framework. The plaintiffs' contention that CUTPA qualifies as a predicate statute as applied to their wrongful marketing claims finds additional support in the repeated statutory references to laws that govern the marketing of firearms.
There is no doubt that statutes that govern the advertising 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] ...."
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, deceptive, and other forms of wrongful advertising are regulated principally through unfair trade practice laws such as the FTC Act and its state analogues.
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. at 140, 172 A.3d 1228. In New York v. Beretta U.S.A. Corp., supra, 524 F.3d at 384, the Second Circuit considered whether PLCAA barred the municipal plaintiffs' action alleging that distribution practices of the defendant firearms manufactures
Statutes such as the FTC Act and state analogues that prohibit the wrongful marketing of dangerous consumer 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.
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, 1991 WL 204385 (September 27, 1991), the plaintiff prevailed on his claim that the defendant gun dealer's sales practices relating to the sale of a Ruger pistol and three remanufactured semiautomatic rifles violated CUTPA.
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.
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.
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., 127 F.T.C. 379 (1999), the commission prohibited the publication of advertisements that portrayed young adult passengers consuming alcohol while sailing, in a manner that was unsafe and depicted activities that "may also violate federal and state boating safety laws." Id., at 380. 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, 1998 WL 456483, *6-7 (F.T.C. August 6, 1998). More generally, the FTC cautioned that it "ha[d] substantial concern about advertising 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., at *6, 1998 FTC LEXIS 83, at *15.
Because Congress clearly intended that laws governing 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 framework, in light of the decision of the Second Circuit in New York v. Beretta U.S.A. Corp., supra, 524 F.3d at384, is that laws such as CUTPA qualify as predicate statutes, insofar as they apply to wrongful advertising claims.
The Statement of Findings and Purposes
When it drafted PLCAA, Congress included a statement of findings and purposes.
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...." (Citations 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 ...."
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 at 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 promoting 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 sellers 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 common law," recognition of which "would expand civil liability in a manner never contemplated ... by Congress ... or by the legislatures of the several States." 15 U.S.C. § 7901 (a) (7) (2012). As we previously discussed, however, it is well established that the FTC Act and state analogues such as CUTPA not only govern the marketing of firearms, but
The dissent relies on one other provision of the statement of findings and purposes that purportedly disqualifies CUTPA, as applied to the plaintiffs' wrongful marketing theory, as a potential predicate statute. Specifically, the statement emphasizes the importance of preserving the rights enshrined in the second amendment 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 amendment 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 featuring 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 ownership 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). Accordingly, we conclude that, on balance, PLCAA's statement of findings and purposes also bears out the plaintiffs' interpretation of the statute,
We next address the defendants' argument that construing 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 at 1155 (Berzon, J., concurring in part and dissenting in part).
Of course, to surmount PLCAA immunity via the predicate 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 exception 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 arising from gun violence.
Extrinsic Evidence of Congressional Intent
Other courts that have construed the predicate exception are divided as to whether the exception unambiguously 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 at 1133-35 (predicate exception is ambiguous), and New York v. Beretta U.S.A. Corp., supra, 524 F.3d at 401 (same), with Smith & Wesson Corp. v. Gary, 875 N.E.2d 422, 431, 434 and n.12 (Ind.App. 2007) (predicate exception unambiguously applies), and New York v. Beretta U.S.A. Corp., supra, at 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 predicate statute. In this part, we explain why extrinsic indicia of congressional intent support the same conclusion. These indicia include canons of statutory construction, closely related legislation, and the legislative history of PLCAA.
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 application 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.
Clear Statement Requirement
We begin with the well established canon 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. E.g., Cipollone v. Liggett
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 established legal principles.
The defendants' contend that a different canon of construction, namely, ejusdem generis, essentially resolves any statutory ambiguity in their favor. Specifically, from the fact that PLCAA provides two examples of predicate federal statutes,
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 making 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]...."
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 specific 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 specific 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 acknowledged the potential relevance of the canon when construing the predicate exception. See, e.g., New York v. Beretta U.S.A. Corp., supra, 524 F.3d at 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
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 exceptions 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 examples of predicate statutes.
The legislative history indicates that the record keeping 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 semiautomatic 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.
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.
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 Senator 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 delineating 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 ejusdem generis, to construe a statutory provision overly narrowly.
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, contending that the predicate exception, like other statutory exceptions, must be construed narrowly to preserve the primary purpose of PLCAA. As we explained, however, our review of the statutory language strongly suggests that the defendants' have misperceived the primary purpose of PLCAA, which is not to shield firearms sellers from liability for wrongful or illegal conduct. If Congress had intended to supersede state actions of this sort, it was required to make that purpose clear.
We also find it instructive that, in early 2005, at approximately the same time that the proposed legislation that ultimately became PLCAA was introduced, bills were introduced in both the House of Representatives 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.
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 persuades us 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 violated unfair trade practice laws.
During the legislative debates, opponents of the proposed legislation that became PLCAA repeatedly questioned 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.
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 plaintiff'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 at 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' statements 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 dangerous 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
To the extent that supporters of PLCAA were concerned with lawsuits other than those seeking to hold firearms sellers strictly liable for gun violence, they consistently expressed that their intention was to foreclose novel legal theories that had been developed by anti-gun activists with the goal of putting firearms sellers out of business.
As we discussed previously, the plaintiffs' theory of liability is not novel; nor does it sound in tort.
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 at 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 legislative history.
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
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.
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 credible allegations that a firearms seller had run explicit advertisements depicting and glorifying school shootings, and promoted its products in video games, such as "School Shooting," that glorify and reward such unlawful conduct,
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.
ROBINSON, J., with whom VERTEFEUILLE and ELGO, Js., join, dissenting in part.
In 2005, Congress enacted the Protection of Lawful Commerce in Arms Act (arms act), 15 U.S.C. § 7901 et seq., to preempt what it had deemed to be frivolous lawsuits against the firearms industry arising from the proliferation of gun related deaths resulting from criminal activity in cities and towns across the country. See 15 U.S.C. § 7901 (2012) (articulating findings and purposes underlying arms act).
I begin by noting my agreement with the facts, procedural history, and plenary standard of review as stated by the majority. See, e.g., Byrne v. Avery Center for Obstetrics & Gynecology, P.C., 314 Conn. 433, 447, 102 A.3d 32 (2014) ("[w]hether state causes of action are preempted by federal statutes and regulations is a question of law over which our review is plenary"). I also assume, without deciding, that the majority properly concludes in part IV D of its opinion that, "at least with respect to wrongful advertising claims, personal injuries alleged to have resulted directly from such advertisements are cognizable under CUTPA." Accordingly, I now turn to the pivotal question of whether the predicate exception saves such claims under CUTPA from preemption by the arms act.
GENERAL PRINCIPLES OF PREEMPTION AND STATUTORY CONSTRUCTION
I recognize that the supremacy clause of the United States constitution declares that "the Laws of the United States ... shall be the supreme Law of the Land ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const., art. VI, cl. 2. "As a consequence, state and local laws are preempted [when] they conflict with the dictates of federal law, and must yield to those dictates.... Preemption may be either express or implied, and is compelled whether Congress' command is explicitly stated in the statute's language or implicitly contained in its structure and purpose....
"[When] a federal statute expressly preempts state or local law, analysis of the scope of the [preemption] statute must begin with its text.... And, we must also start with the assumption that the historic police powers of the [s]tates [are] not to be superseded ... unless that was the clear and manifest purpose of Congress.... As such, Congress' purpose is the ultimate touchstone of preemption analysis." (Citation omitted; internal quotation marks omitted.) Modzelewski's Towing & Recovery, Inc. v. Commissioner of Motor Vehicles, 322 Conn. 20, 28-29, 139 A.3d 594 (2016), cert. denied, ___ U.S. ___, 137 S.Ct. 1396, 197 L.Ed.2d 554 (2017).
In determining whether Congress intended the arms act to preempt the CUTPA claims in the present case, I turn to the principles that govern our "construction and application of federal statutes," under which "principles of comity and consistency require us to follow the plain meaning rule .... Moreover, it is well settled that the decisions of [t]he [United States Court of Appeals for the] Second Circuit ... 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., 327 Conn. 114, 140, 172 A.3d 1228 (2017); see also, e.g., Modzelewski's Towing & Recovery, Inc. v. Commissioner of Motor Vehicles, supra, 322 Conn. at 32, 139 A.3d 594.
"Accordingly, our analysis of the federal statutes in the present case begins with the plain meaning of the statute.... If the
If a federal statute is ambiguous, the federal courts do not consider all extratextual sources to be of equal value in resolving that ambiguity. Instead, the Second Circuit first "turn[s] to canons of statutory construction for assistance in interpreting the statute.... [That court] resort[s] to legislative history only if, after consulting canons of statutory instruction, the meaning remains ambiguous." (Citation omitted; internal quotation marks omitted.) 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).
Accordingly, I begin with a review of the text of the relevant provisions of the arms act. The preemption provision provides that "[a] qualified civil liability action may not be brought in any Federal or State court." 15 U.S.C. § 7902 (a) (2012); see also 15 U.S.C. § 7902 (b) (2012) ("[a] qualified civil liability action that is pending on October 26, 2005, shall be immediately dismissed by the court in which the action was brought or is currently pending"). The arms act defines a "qualified civil liability action" in relevant part as "a civil action or proceeding ... brought by any person against a manufacturer or seller of a qualified product,
"(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 qualified product, or aided, abetted, or conspired with any person in making any false or fictitious oral or written statement with respect to any fact material to the lawfulness
"(II) any case in which the manufacturer or seller aided, abetted, or conspired with any other person to sell or otherwise dispose of a qualified product, knowing, or having reasonable cause to believe, that the actual buyer of the qualified product was prohibited from possessing or receiving a firearm or ammunition under subsection (g) or (n) of section 922 of title 18...." 15 U.S.C. § 7903 (5) (A) (iii) (2012).
Resolving whether CUTPA is a state statute "applicable to the sale or marketing of [firearms]"; 15 U.S.C. § 7903 (5) (A) (iii) (2012); begins with the plain meaning of the word "applicable," which Congress did not define within the arms act. "In the absence of a definition of terms in the statute itself, [w]e may presume ... that the legislature intended [a word] to have its ordinary meaning in the English language, as gleaned from the context of its use.... Under such circumstances, it is appropriate to look to the common understanding of the term as expressed in a dictionary." (Internal quotation marks omitted.) Middlebury v. Connecticut Siting Council, 326 Conn. 40, 49, 161 A.3d 537 (2017). Merriam Webster's Collegiate Dictionary defines "applicable" as "capable of or suitable for being applied: appropriate." Merriam-Webster's Collegiate Dictionary (11th Ed. 2003), p. 60; see id., p. 61 (defining "appropriate" as "especially suitable or compatible"). Considering this definition, I agree with the plaintiffs' argument that CUTPA reasonably could be deemed "applicable" to the "sale or marketing of [firearms]"; 15 U.S.C. § 7903 (5) (A) (iii) (2012); insofar as it is a broad statute that is "capable of" being applied to that—and nearly every other—business. The reasonableness of this reading is bolstered by Congress' use of the word "including" to set off its list of example predicate statutes, insofar as "the word `including' may be used either as a word of enlargement or of limitation." Wood v. Zoning Board of Appeals, 258 Conn. 691, 700 n.11, 784 A.2d 354 (2001); see also, e.g., State v. DeFrancesco, 235 Conn. 426, 435, 668 A.2d 348 (1995) ("`[t]here is some ambiguity concerning whether the word "including" ... was intended as a word of limitation ... or one of enlargement'"); accord Samantar v. Yousuf, 560 U.S. 305, 317, 130 S.Ct. 2278, 176 L.Ed.2d 1047 (2010) (stating that "use of the word `include' can signal that the list that follows is meant to be illustrative rather than exhaustive," but noting that "`[a] word may be known by the company it keeps'"); but see Mahoney v. Lensink, 213 Conn. 548, 569, 569 A.2d 518 (1990) (suggesting that phrase "shall include" is limiting, but use of word "include" or "including" omitting word "shall" is intended to be broader, with "the listed rights ... a vehicle for enlargement rather than limitation," given purpose of statutory patients' bill of rights).
The defendants' reading of the predicate exception is, however, equally reasonable, particularly given the more technical definition of "applicable" in Black's Law Dictionary as it relates to laws or regulations. See Black's Law Dictionary (10th Ed. 2014) (defining "applicable" in references to "a rule, regulation, law, etc.," as "affecting or relating to a particular person, group, or situation; having direct relevance"). The principle of noscitur a sociis, namely, that the "meaning of a statutory word may be indicated, controlled or made clear by the words with which it is associated in the statute"; (internal quotation marks omitted) State v. Agron, supra, 323 Conn. at 635-36, 148 A.3d 1052; allows us to view the example predicates, which describe statutes specifically applicable to the firearms trade, as cabining the more expansive reading of the word "applicable." See also, e.g., Bilski v. Kappos, 561 U.S. 593,
REVIEW OF FEDERAL CIRCUIT COURT PRECEDENT
In determining whether CUTPA is a predicate statute under the arms act, I do not write on a blank slate. Two of the United States Circuit Courts of Appeal, including the Second Circuit that we ordinarily find especially persuasive in deciding questions of federal law; see, e.g., CCT Communications, Inc. v. Zone Telecom, Inc., supra, 327 Conn. at 140, 172 A.3d 1228; have considered whether state statutes of general applicability may be predicate statutes.
In New York v. Beretta U.S.A. Corp., supra, 524 F.3d at 389-91, the city of New York claimed that the defendants', certain firearms manufacturers and distributors, "market[ed] guns to legitimate buyers with the knowledge that those guns [would] be diverted through various mechanisms into illegal markets" and sought injunctive relief requiring those defendants' "to take assorted measures that would effectively inhibit the flow of firearms into illegal markets." The Second Circuit considered whether a state criminal public nuisance statute; see N.Y. Penal Law § 240.45 (McKinney 2008);
After engaging in a contextual analysis of the predicate exception and, in particular, the meaning of the term "applicable," the Second Circuit concluded that the predicate exception "does not encompass" the criminal nuisance statute, but "does encompass statutes  that expressly regulate firearms, or  that courts have applied to the sale and marketing of firearms; and ...  that do not expressly regulate firearms but that clearly can be said to implicate the purchase and sale of
My review of the relevant statutory text and legislative history reveal no support for the Second Circuit's expansive holding that the predicate exception includes statutes "that courts have applied to the sale and marketing of firearms" and "that do not expressly regulate firearms but that clearly can be said to implicate the purchase and sale of firearms." Id., at 404. This ultimate conclusion is simply inconsistent with the court's more detailed analysis of the relevant statutory text and legislative history, which suggests a narrower reading of that exception. Specifically, the court considered the statements of purpose, as well as the list of example predicate statutes set forth in 15 U.S.C. § 7903 (5) (A) (iii) (I) and (II), which are "said to include statutes regulating [record keeping] and those prohibiting participation in direct illegal sales," and stated that "construing the term `applicable to' to mean statutes that clearly can be said to regulate the firearms industry more accurately reflects the intent of Congress." Id., at 402. The court also rejected the dictionary definition of "applicable" as "lead[ing] to a far [too] broad reading of the predicate exception" that "would allow the predicate exception to swallow the statute...." Id., at 403. Finally, the court cited the legislative history of the arms act as "support [for] the view that the predicate exception was meant to apply only to statutes that actually regulate the firearms industry, in light of the statements' consistency amongst each other and with the general language of the statute itself." Id., at 404.
Indeed, Judge Robert Katzmann authored a dissenting opinion aptly criticizing the majority's analysis as inconsistent with the plain language of the statute, particularly with respect to recognizing those statutes that courts had previously applied to the sale and manufacture of firearms, and further observed that the majority had provided no guidance with respect to when a statute of general applicability could, in fact, be deemed applicable to firearms, rendering that aspect of the majority opinion entirely unpersuasive.
Although it too is not directly on point, my review of the predicate exception's text and legislative history indicates that the analysis of the United States Court of Appeals for the Ninth Circuit in Ileto v. Glock, Inc., supra, 565 F.3d 1126, is more instructive.
Determining that the "text of the statute alone is inconclusive as to Congress' intent,"
The Ninth Circuit then examined the "extensive" legislative history, and made "two general observations .... First, all of the congressional speakers' statements concerning the scope of the [arms act] reflected the understanding that manufacturers and sellers of firearms would be liable only for statutory violations concerning firearm regulations or sales and marketing regulations." Id., at 1136-37. Second, the court observed that the "very case" before it was exactly "the type of case they meant the [arms act] to preempt," along with other "novel" cases. (Emphasis omitted.) Id., at 1137. Ultimately, the court held that "Congress intended to preempt general tort law claims ... even though California has codified those claims in its civil code."
With this case law in mind, I now turn to the canons of statutory interpretation and legislative history to determine whether the predicate exception encompasses unfair trade practices statutes that, like CUTPA, are not specific to the firearms industry.
CANONS OF CONSTRUCTION
With respect to the canons of statutory construction, I first observe that the predicate exception is exactly that—an exception to the arms act. It is well settled that, "when a statute sets forth exceptions to a general rule, we generally construe the exceptions narrowly in order to preserve the primary operation of the [provision]." (Internal quotation marks omitted.) Capitol Records, LLC v. Vimeo, LLC, 826 F.3d 78, 90-91 (2d Cir. 2016), cert. denied, ___ U.S. ___, 137 S.Ct. 1374, 197 L.Ed.2d 554 (2017). This "proposition ... is supported by commonsense logic. When a statute sets forth a general principle, coupled with an exception to it, it is logical to assume, in the face of ambiguity in the exception, that the legislature did not intend the exception to be so broad as to leave nothing of the general principle." Id., at 91; see also Commissioner of Internal Revenue v. Clark, 489 U.S. 726, 739, 109 S.Ct. 1455, 103 L.Ed.2d 753 (1989) ("[g]iven that Congress has enacted a general rule that treats boot as capital gain, we should not eviscerate that legislative judgment through an expansive reading of a somewhat ambiguous exception"); A. H. Phillips, Inc. v. Walling, 324 U.S. 490, 493, 65 S.Ct. 807, 89 S.Ct. 1095 (1945) ("[t]o extend an exemption to other than those plainly and unmistakably within its terms and spirit is to abuse the interpretative process and to frustrate the announced will of the people"). In the absence of clear direction from Congress to construe the predicate exception differently, I disagree with the majority's suggestion that we should read the arms act narrowly and its predicate exception more broadly.
Beyond the narrow construction that we should afford the exceptions to the arms act, the related doctrines of noscitur a sociis and avoiding legislative superfluity also inform the meaning of the phrase "State or Federal statute applicable to the sale or marketing of [firearms]"; 15 U.S.C. § 7903 (5) (A) (iii) (2012); and suggest that the examples of federal laws provided therein indicate the type of statutory violations that would sustain invocation of the predicate exception. Under the canon of noscitur a sociis, "an ambiguous term may be given more precise content by the neighboring words with which it is associated."
The very specific examples of firearms laws that Congress provides in the predicate exception strongly suggest that it intended only those statutes that are specific to the firearms trade to be considered "applicable to the sale or marketing of the product...." 15 U.S.C. § 7903 (5) (A) (iii) (2012). The first example is "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 qualified product, or aided, abetted, or conspired with any person in making 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 qualified product ...." 15 U.S.C. § 7903 (5) (A) (iii) (I) (2012). The second is "any case in which the manufacturer or seller aided, abetted, or conspired with any other person to sell or otherwise dispose of a qualified product, knowing, or having reasonable cause to believe, that the actual buyer of the qualified product was prohibited from possessing or receiving a firearm or ammunition under subsection (g) or (n) of section 922 of title 18 ...." 15 U.S.C. § 7903 (5) (A) (iii) (II) (2012). Had Congress intended the predicate exception to broadly encompass any statute capable of application to the manufacture or sale of anything, the inclusion of those firearms specific examples would be superfluous.
The legislative history also supports a narrow reading of the predicate exception as limited only to those statutes that govern the sale and marketing of firearms specifically. I agree with the majority's description of the legislative history of the arms act as "extensive" and "present[ing] something of a mixed bag."
Turning beyond the more sweeping remarks, to the extent that there is legislative history illuminating the meaning of the predicate exception, it "reflect[s] the understanding that manufacturers and
Moreover, the majority does not cite, and my independent research has not revealed, any legislative history indicating that state unfair trade practice statutes were within the contemplation of Congress in enacting the predicate exception. Other statements indicate that such statutes were not contemplated as predicates, and that supporters of the arms act specifically rejected the viability of claims arising from the advertising of firearms. For example, arguing in support of the arms act, Senator Hatch criticized pending actions against gun manufacturers, observing that these "lawsuits, citing deceptive marketing or some other pretext, continue to be filed in a number of [s]tates, and they continue to be unsound. These lawsuits claim that sellers give the false impression that gun ownership enhances personal safety or that sellers should know that certain guns will be used illegally. That is pure bunk. Let's look at the truth. The fact is that none of these lawsuits are aimed at the actual wrongdoer who kills or injures another with a gun—none. Instead, the lawsuits are focused on legitimate, law-abiding businesses."
Finally, congressional concerns about vague standards leading to liability also support a reading of the predicate exception that is limited to firearms industryspecific statutes, rather than statutes of general applicability such as CUTPA. For example, in arguing in the House Judiciary Committee—seemingly inexplicably— against an amendment that would clarify that the arms act allows actions against gun dealers who knowingly sell firearms to a person who is on the violent gang and terrorist watch list maintained by the Department of Justice, Representative Christopher B. Cannon argued that "the vast number of cosponsors of this bill would agree that the burden here should be on the [g]overnment to identify people and not create a vague standard that could be used again to destroy gun manufacturers with lawsuits that don't have clarity, but cost a great deal of money." H.R. Rep. No. 109-124, supra, p. 126. Likewise, arguing in
Similarly, in opposing a bill amendment that would provide an exception to the arms act for "gross negligence" or "reckless conduct," Senator John Cornyn argued that the breadth of those terms "would actually gut the very underlying purpose of this legislation" because the pleading of such claims would broaden the scope of the discovery involved, and allow for greater harassment of the manufacturers via the litigation process. Id., 18,918. Senator Jon Llewellyn Kyl described the amendment as "a poison pill for the entire bill because, in effect ... if you allege gross negligence or recklessness, then the exemption the bill provides evaporates. So you are a lawyer. All you do is allege gross negligence or recklessness and, bingo, you are back in court again. So it totally undercuts the purpose of this legislation."
On the basis of my review of the text, case law, canons of construction, and legislative history, I conclude that predicate statutes under the predicate exception to the arms act, 15 U.S.C. § 7903 (5) (A) (iii), are limited to those specific to the sale and manufacture of firearms.
To determine whether CUTPA is a predicate statute under this standard, I consider that, as a matter of state law, "CUTPA is, on its face, a remedial statute that broadly prohibits unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.... [CUTPA] provides for more robust remedies than those available under analogous common-law causes of action, including punitive damages ... and attorney's fees and costs, and, in addition to damages or in lieu of damages, injunctive or other equitable relief.... To give effect to its provisions, [General Statutes] § 42-110g (a) of [CUTPA] establishes a private cause of action, available to [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 [General Statutes §] 42-110b ...." (Internal quotation marks omitted.) Artie's Auto Body, Inc. v. Hartford Fire Ins. Co., 317 Conn. 602, 623, 119 A.3d 1139 (2015).
"[Section] 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. It is well settled that in determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the [F]ederal [T]rade [C]ommission for determining when a practice is unfair: (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes,
"CUTPA, by its own terms, applies to a broad spectrum of commercial activity. The operative provision of [that] act, § 42-110b (a), states merely 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.' Trade or commerce, in turn, is broadly defined as `the advertising, the sale or rent or lease, the offering for sale or rent or lease, or the distribution of any services and any property, tangible or intangible, real, personal or mixed, and any other article, commodity, or thing of value in this state.' General Statutes § 42-110a (4). The entire act is remedial in character; General Statutes § 42-110b (d); Hinchliffe v. American Motors Corp., 184 Conn. 607, 615 n.4, 440 A.2d 810 (1981); and must `be liberally construed in favor of those whom the legislature intended to benefit.'" (Emphasis added; footnote omitted.) Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 492, 656 A.2d 1009 (1995). "CUTPA, like equity, reaches beyond traditional common law precepts in establishing a fairness standard designed to grow and broaden and mold [itself] to meet circumstances as they arise .... The resolution of claims requiring the application of broadly defined and deeply rooted public values such as the statute's elusive, but [legislatively] mandated standard of fairness ... has historically been the function of a court of equity."
In summary, whether this court agrees with Congress or not, in adopting the arms act, Congress adopted findings and statements of purpose in 15 U.S.C. § 7901; see footnote 1 of this dissenting opinion; which made very clear its intent to absolve defendants' like these—gun manufacturers and distributors—from liability for criminal use of firearms by third parties except in the most limited and narrow circumstances and, particularly, to shield them from novel or vague standards of liability.
Accordingly, I respectfully dissent.
The listing of justices reflects their seniority status on this court as of date of oral argument.
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.
Other relevant provisions of CUTPA are set forth in part IV of this opinion.
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 Connecticut and the Department of Consumer Protection; and (8) Trinity Church Wall Street.
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 , 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 additional 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 promote firearms and firearms products." Id., § 2 (a) (1). Also instructive is H.R. 2089, 115th Cong. (2017). One provision of that bill would have prohibited "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).
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. at 429, 78 A.3d 76 (declining to review "the defendants' unpreserved 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. at 622 n.13, 119 A.3d 1139; the legislature has continued 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.
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., at 169. The plaintiff alleged, among other things, that the defendant manufacturer of that game violated CUTPA by aggressively and inappropriately marketing the game to a vulnerable adolescent audience. See id., at 175-76. The court dismissed the CUTPA claim for failure to comply with CUTPA's statute of limitations. Id., at 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.
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).
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.
"(1) The Second Amendment to the United States Constitution provides that the right of the people to keep and bear arms shall not be infringed.
"(2) The Second Amendment to the United States Constitution protects the rights of individuals, including those who are not members of a militia or engaged in military service or training, to keep and bear arms.
"(3) Lawsuits have been commenced against manufacturers, distributors, dealers, and importers of firearms that operate as designed and intended, which seek money damages and other relief for the harm caused by the misuse of firearms by third parties, including criminals.
"(4) The manufacture, importation, possession, sale, and use of firearms and ammunition in the United States are heavily regulated by Federal, State, and local laws. Such Federal laws include the Gun Control Act of 1968, the National Firearms Act [26 U.S.C. § 5801 et seq.], and the Arms Export Control Act [22 U.S.C. § 2751 et seq.].
"(5) 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 products that function as designed and intended.
"(6) The possibility of imposing liability on an entire industry for harm that is solely caused by others is an abuse of the legal system, erodes public confidence in our Nation's laws, threatens the diminution of a basic constitutional right and civil liberty, invites the disassembly and destabilization of other industries and economic sectors lawfully competing in the free enterprise system of the United States, and constitutes an unreasonable burden on interstate and foreign commerce of the United States.
"(7) The liability actions commenced or contemplated by the Federal Government, States, municipalities, and private interest groups and others 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 common law. The possible sustaining of these actions by a maverick judicial officer or petit jury would expand civil liability in a manner never contemplated by the framers of the Constitution, by Congress, or by the legislatures of the several States. Such an expansion of liability would constitute a deprivation of the rights, privileges, and immunities guaranteed to a citizen of the United States under the Fourteenth Amendment to the United States Constitution.
"(8) The liability actions commenced or contemplated by the Federal Government, States, municipalities, private interest groups and others attempt to use the judicial branch to circumvent the Legislative branch of government to regulate interstate and foreign commerce through judgments and judicial decrees thereby threatening the Separation of Powers doctrine and weakening and undermining important principles of federalism, State sovereignty and comity between the sister States.
"The purposes of [the arms act] are as follows:
"(1) To prohibit causes of action against manufacturers, distributors, dealers, and importers of firearms or ammunition products, and their trade associations, for the harm solely caused by the criminal or unlawful misuse of firearm products or ammunition products by others when the product functioned as designed and intended.
"(2) To 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.
"(3) To guarantee a citizen's rights, privileges, and immunities, as applied to the States, under the Fourteenth Amendment to the United States Constitution, pursuant to section 5 of that Amendment.
"(4) To prevent the use of such lawsuits to impose unreasonable burdens on interstate and foreign commerce.
"(5) To protect the right, under the First Amendment to the Constitution, of manufacturers, distributors, dealers, and importers of firearms or ammunition products, and trade associations, to speak freely, to assemble peaceably, and to petition the Government for a redress of their grievances.
"(6) To preserve and protect the Separation of Powers doctrine and important principles of federalism, State sovereignty and comity between sister States.
"(7) To exercise congressional power under article IV, section 1 (the Full Faith and Credit Clause) of the United States Constitution."
"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 qualified product, 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 qualified product by the person or a third party, but shall not include—
"(i) an action brought against a transferor convicted under section 924 (h) of title 18, or a comparable or identical State felony law, by a party directly harmed by the conduct of which the transferee is so convicted;
"(ii) an action brought against a seller for negligent entrustment or negligence per se;
"(iii) an action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought, including—
"(iv) an action for breach of contract or warranty in connection with the purchase of the product;
"(v) an action for death, physical injuries or property damage resulting directly from a defect in design or manufacture of the product, when used as intended or in a reasonably foreseeable manner, except that where the discharge of the product was caused by a volitional act that constituted a criminal offense, then such act shall be considered the sole proximate cause of any resulting death, personal injuries or property damage; or
"(vi) an action or proceeding commenced by the Attorney General to enforce the provisions of chapter 44 of title 18 or chapter 53 of title 26."
"(b) Dismissal of pending actions
"A qualified civil liability action that is pending on October 26, 2005, shall be immediately dismissed by the court in which the action was brought or is currently pending."
"1. By conduct either unlawful in itself or unreasonable under all the circumstances, he knowingly or recklessly creates or maintains a condition which endangers the safety or health of a considerable number of persons; or
"2. He knowingly conducts or maintains any premises, place or resort where persons gather for purposes of engaging in unlawful conduct...."
I also note that frivolity remains in the eye of the beholder, and that the proponents of the arms act appear from their remarks, discussed in greater detail in part IV of this dissenting opinion, to employ that term in a manner different than its well established legal meaning. See, e.g., Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 254-55, 828 A.2d 64 (2003) ("an action is frivolous... if the client desires to have the action taken primarily for the purpose of harassing or maliciously injuring a person or if the lawyer is unable either to make a good faith argument on the merits of the action taken or to support the action taken by a good faith argument for an extension, modification or reversal of existing law" [emphasis omitted; internal quotation marks omitted]); cf. Mareno v. Rowe, 910 F.2d 1043, 1047 (2d Cir. 1990) (discussing rule 11 of Federal Rules of Civil Procedure), cert. denied, 498 U.S. 1028, 111 S.Ct. 681, 112 L.Ed.2d 673 (1991). Accordingly, I emphasize that I do not view the plaintiffs' claims in the present case as frivolous in any way.
I respectfully disagree with this reading of the legislative history with respect to the import of the illustrative statutes in the predicate exception. Although I agree that the vitality of the beltway sniper lawsuit was a powerful political consideration during the enactment of the arms act, I view that action's basis in concrete record keeping and unlawful buyer violations simply as an exemplar of what Congress did not intend the arms act to preclude. With those exemplars included in the final version of the predicate exception, I am not at liberty simply to ignore their import in the construction of the statute as a whole. See, e.g., United States v. Dauray, supra, 215 F.3d at 264 ("our role as a court is to apply the provision as written, not as we would write it" [internal quotation marks omitted]).
Given the potential for liability and remedy available under CUTPA, which is broader than that available at common law; see, e.g., Associated Investment Co. Ltd. Partnership v. Williams Associates IV, 230 Conn. 148, 159, 645 A.2d 505 (1994); I disagree with the logic behind the majority's premise that Congress intended the arms act to preempt state common-law claims, but leave undisturbed even broader sources of liability under state unfair trade practice statutes like CUTPA. See District of Columbia v. Beretta U.S.A. Corp., supra, 940 A.2d at 171 n.6 (court relied on findings in 15 U.S.C. § 7901 [a]  and , and rejected plaintiffs' reliance on congressional expression of "concern with liability actions `without foundation in hundreds of years of the common law' and that `do not represent a bona fide expansion of the common law'" as standing for proposition that "Congress was substantially less troubled by the existence of statutory liability actions reflecting judgments `by the legislatures of the several [s]tates'" because "[n]o such distinction... is reflected either in the definition of a `qualified civil liability action' or in the enumerated actions excluded therefrom, including the predicate exception; and to posit one all the same would ignore [Congress'] objection to `[l]awsuits" as a class [unless excepted] that `seek money damages and other relief [against manufacturers and sellers] for the harm caused by the misuse of firearms by third parties, including criminals'" [emphasis omitted]).
The majority's reliance on two Connecticut cases, namely, Ganim v. Smith & Wesson Corp., 258 Conn. 313, 780 A.2d 98 (2001), and Salomonson v. Billistics, Inc., Superior Court, judicial district of New London, Docket No. CV-88-508292, 1991 WL 204385 (September 27, 1991), for the proposition that CUTPA has been previously applied to the sale and marketing of firearms is similarly unavailing. As the majority recognizes, this court's decision in Ganim was limited to a conclusion that municipalities lacked standing to pursue claims against firearms manufacturers and sellers for harms arising from gun violence. Ganim v. Smith & Wesson Corp., at 365, 780 A.2d 98. Indeed, the court specifically declined to address the substantive legal issues presented in that case, including whether firearms manufacturers and sellers may be held liable under CUTPA for "unfair and deceptive advertising" and "unfair and deceptive sales practices," as supported by allegations that the firearms manufacturers and dealers "marketed and sold their handguns in a manner that causes harm to individuals, especially young children in Bridgeport; marketed and sold their handguns in a manner that contributes to homicides, suicides and accidental deaths in Bridgeport; and engaged in a campaign of misrepresentation concerning the dangers of their handguns" and that they "sell excessive numbers of guns to individual buyers, knowing or having reason to know that some or all of those guns are not for personal use, and are likely to be resold illegally and used to commit crimes; and sell guns that fail to incorporate feasible safety devices that would prevent misuse by unauthorized and unintended users." Id., at 334-36. Accordingly, this court's decision in Ganim about the plaintiffs' standing in that case has absolutely no precedential value with respect to the viability of a CUTPA claim founded on the "immoral advertising" of firearms.
The Superior Court's decision in Salomonson is even more inapposite than Ganim. Salomonson, which is a report of an attorney trial referee rather than a decision of a judge of the Superior Court, does not involve crime or victims of crime, but instead is a routine business dispute, in which the court held that a gun fabricator violated CUTPA by failing to perform under a contract to convert three semi-automatic rifles to fully automatic weapons, including by obtaining necessary federal regulatory approvals. See Salomonson v. Billistics, Inc., supra, Superior Court, Docket No. CV-88-508292.