Article: May 2020: Product Liability Litigation Update

U.S. Supreme Court Denies Certiorari in Case Against Gun Manufacturer Brought by Families of Sandy Hook Shooting Victims

In a case we previously noted in the March 2018 Business Litigation Report, the U.S. Supreme Court recently declined to hear an appeal by gun manufacturer Remington from a Connecticut Supreme Court ruling, thereby clearing the way for a lawsuit by family members of first graders and staff members killed in the Sandy Hook Elementary School shooting to move forward.   

The case, Remington Arms Co. v. Soto, has been described as a test of whether litigation by family members of mass shooting victims could pass the motion to dismiss stage in light of the Protection of Lawful Commerce in Arms Act (“PLCAA”), codified at 15 U.S.C. §§ 7901 through 7903. The PLCAA, which was passed in 2005, provides immunity to firearm and ammunition manufacturers, distributors, and dealers from civil or administrative claims based on the “criminal or unlawful misuse of firearms products or ammunition products.” 15 U.S.C. § 7901(b)(1). There are six limited exceptions to the immunity, including an exception when the manufacturer, seller, or distributor violates a state or federal statute “applicable” to the sale or marketing of firearms or ammunition (known as the “predicate” exception) and an exception for “negligent entrustment” claims. 15 U.S.C. § 7903(5)(i)-(vi).

On March 19, 2019, the Connecticut Supreme Court held in a 4-3 decision that the family members of the victims killed in the 2012 mass shooting could move forward with “one narrow legal theory” under the Connecticut Unfair Trade Practices Act (“CUTPA”), Conn. Gen. Stat. § 42-110a, et seq. Soto v. Bushmaster Firearms, Int’l, LLC, 331 Conn. 53 (2019).  Specifically, the family members could proceed with their claim that Remington “knowingly marketed, advertised, and promoted” the Bushmaster XM15-E2S semiautomatic rifle as allowing civilians “to carry out offensive military-style combat missions,” in violation of  CUTPA’s bar on “advertisements that promote or model the unsafe or illegal use of potentially dangerous products.” Id. at 65-66, 131-132. (The majority noted that the XM15 “is substantially similar to the standard issue M16 military service rifle used by the United States Army and other nations’ armed forces, but fires only in semiautomatic mode.” Id. at 70.)

The Connecticut Supreme Court held that the family members’ claims under CUTPA fell within the predicate exception, reasoning that, among other things, the legislative history indicated that “Congress did not intend to limit the scope of the predicate exception to violations of firearms-specific laws” and that “the primary purpose of the PLCAA … is not to shield firearms sellers from liability for wrongful or illegal conduct.” Id. at 144, 146. The Connecticut Supreme Court also held that, in light of “amendments [to CUTPA that] eliminated … [a] privity requirement,” the family members did not have to show “a business relationship with” Remington in order to establish standing. Id. at 88-89.  Moreover, the Connecticut Supreme Court held that “at least with respect to wrongful advertising claims, personal injuries alleged to have resulted directly from such advertisements are cognizable under CUTPA” for damages purposes and that the “plaintiffs’ wrongful advertising theory is not barred by CUTPA’s statute of limitations.” Id. at 106, 116.

In seeking U.S. Supreme Court review, Remington argued that the Connecticut decision conflicted with prior decisions from the Ninth Circuit in Ileto v. Glock, 565 F.3d 1126 (2009), and the Second Circuit in City of New York v. Beretta U.S.A. Corp., 524 F.3d 384 (2008), by holding that any statute “capable of being applied” to firearms fell within the scope of the predicate exception and therefore could be a basis of liability. See Soto, 331 Conn. at 119; Remington Petition for Certiorari, at 3. Remington contended the decision creates “confusion” about the predicate exception’s scope. Id. at 4.  Remington further argued that “[b]ecause all states have analogous unfair trade practices laws, the decision below threatens to unleash a flood of lawsuits nationwide that would subject lawful business practices to crippling litigation burdens.” Id. In opposing certiorari, meanwhile, the plaintiffs argued that Remington’s warning of a flood of litigation is “groundless hyperbole.” Plaintiffs’ Opposition to Certiorari Petition, at 2.  The plaintiffs argued that the case did not merit interlocutory review by the U.S. Supreme Court and that the Connecticut Supreme Court correctly reasoned that the “most natural reading of ‘applicable’ in the PLCAA” includes CUTPA as applied by the Sandy Hook families in their 2014 lawsuit. Id. at 9, 22.

Although the U.S. Supreme Court’s denial of certiorari clears the way for the family members’ litigation to proceed in state court in Connecticut, the Connecticut Supreme Court majority warned that the lawsuit will still face obstacles, including the issue of causation. Soto, 331 Conn. at 98. The Connecticut Supreme Court underscored that plaintiffs’ theory requires their proving that “the defendants’ wrongful advertising magnified the lethality of the Sandy Hook massacre by inspiring [perpetrator Adam] Lanza or causing him to select a more efficiently deadly weapon for his attack.”  Id. “Proving such a causal link at trial may prove to be a Herculean task,” the majority stated.  Id. However, the Court added, “no private party is better situated than the plaintiffs to bring the action.” Id. at 99.