Donna L. Soto v. Bushmaster Firearms International, LLC, et al.

On December 14, 2012, twenty year old

Adam Lanza forced his way into Sandy Hook Elemen-

tary School in Newtown and, during the course of 264

seconds, fatally shot twenty first grade children and six

staff members, and wounded two other staff members.

Lanza carried out this massacre using a Bushmaster

XM15-E2S semiautomatic rifle that was allegedly manu-

factured, distributed, and ultimately sold to Lanza’s

mother by the various defendants in this case. There

is no doubt that Lanza was directly and primarily

responsible for this appalling series of crimes. In this

action, however, the plaintiffs—administrators of the

estates of nine of the decedents—contend that the

defendants also bear some of the blame. The plaintiffs

assert a number of different legal theories as to why

the defendants should be held partly responsible for the

tragedy. The defendants counter that all of the plaintiffs’

legal theories are not only barred under Connecticut

law, but also precluded by a federal statute, the Protec-

tion of Lawful Commerce in Arms Act (PLCAA), Pub.

L. No. 109-92, 119 Stat. 2095 (2005), codified at 15 U.S.C.

§§ 7901 through 7903 (2012), which, with limited excep-

tions, immunizes firearms manufacturers, distributors,

and dealers from civil liability for crimes committed by

third parties using their weapons. See 15 U.S.C. §§ 7902

(a) and 7903 (5) (2012).

For the reasons set forth in this opinion, we agree

with the defendants that most of the plaintiffs’ claims

and legal theories are precluded by established Con-

necticut law and/or PLCAA. For example, we expressly

reject the plaintiffs’ theory that, merely by selling semi-

automatic rifles—which were legal at the time1—to the

civilian population, the defendants became responsible

for any crimes committed with those weapons.

The plaintiffs have offered one narrow legal theory,

however, that is recognized under established Connecti-

cut law. Specifically, they allege that the defendants

knowingly marketed, advertised, and promoted the

XM15-E2S for civilians to use to carry out offensive,

military style combat missions against their perceived

enemies. Such use of the XM15-E2S, or any weapon for

that matter, would be illegal, and Connecticut law does

not permit advertisements that promote or encourage

violent, criminal behavior. Following a scrupulous

review of the text and legislative history of PLCAA, we

also conclude that Congress has not clearly manifested

an intent to extinguish the traditional authority of our

legislature and our courts to protect the people of Con-

necticut from the pernicious practices alleged in the

present case. The regulation of advertising that threat-

ens the public’s health, safety, and morals has long been

considered a core exercise of the states’ police powers.

Accordingly, on the basis of that limited theory, we

conclude that the plaintiffs have pleaded allegations

sufficient to survive a motion to strike and are entitled

to have the opportunity to prove their wrongful market-

ing allegations. We affirm the trial court’s judgment

insofar as that court struck the plaintiffs’ claims predi-

cated on all other legal theories.

I

PROCEDURAL HISTORY

The plaintiffs brought the present action in 2014,

seeking damages and unspecified injunctive relief.2 The

defendants include the Bushmaster defendants (Rem-

ington),3 one or more of which is alleged to have manu-

factured the Bushmaster XM15-E2S semiautomatic rifle

that was used in the crimes; the Camfour defendants,4

distributors that allegedly purchased the rifle from Rem-

ington and resold it to the Riverview defendants; and

the Riverview defendants,5 retailers that allegedly sold

the rifle to Adam Lanza’s mother, Nancy Lanza, in

March, 2010.6 The gravamen of the plaintiffs’ claims,

which are brought pursuant to this state’s wrongful

death statute, General Statutes § 52-555,7 is that the

defendants (1) negligently entrusted to civilian consum-

ers an AR-15 style assault rifle8 that is suitable for use

only by military and law enforcement personnel, and

(2) violated the Connecticut Unfair Trade Practices Act

(CUTPA), General Statutes § 42-110a et seq.,9 through

the sale or wrongful marketing of the rifle.

The defendants moved to strike the plaintiffs’ com-

plaint, contending that all of the plaintiffs’ claims are

barred by PLCAA. The defendants also argued that, to

the extent that the plaintiffs’ claims sound in negligent

entrustment, the plaintiffs failed to state a legally valid

negligent entrustment claim under Connecticut com-

mon law, and, to the extent that their claims are predi-

cated on alleged CUTPA violations, they are legally

insufficient because, among other things, (1) the plain-

tiffs lack standing to bring a CUTPA action, (2) the

plaintiffs’ claims are time barred by CUTPA’s three year

statute of limitations; see General Statutes § 42-110g

(f); (3) personal injuries and death are not cognizable

CUTPA damages, and (4) the plaintiffs’ CUTPA claims

are simply veiled product liability claims and, therefore,

are barred by General Statutes § 52-572n (a), the exclu-

sivity provision of the Connecticut Product Liability Act

(Product Liability Act).10

In response, the plaintiffs argued that PLCAA does

not confer immunity on the defendants for purposes of

this case because two statutory exceptions to PLCAA

immunity—for claims alleging negligent entrustment

(negligent entrustment exception)11 and for claims

alleging a violation of a statute applicable to the sale

or marketing of firearms (predicate exception)12—apply

to their claims. The plaintiffs further argued that, for

various reasons, the defendants’ state law negligent

entrustment and CUTPA arguments were ill founded.

Although the trial court rejected most of the defen-

dants’ arguments, the court concluded that (1) the plain-

tiffs’ allegations do not fit within the common-law tort

of negligent entrustment, (2) PLCAA bars the plaintiffs’

claims insofar as those claims sound in negligent

entrustment, and (3) the plaintiffs lack standing to bring

wrongful death claims predicated on CUTPA violations

because they never entered into a business relationship

with the defendants. Accordingly, the court granted

in their entirety the defendants’ motions to strike the

plaintiffs’ amended complaint.

On appeal, the plaintiffs challenge each of those con-

clusions.13 For their part, the defendants contend, as

alternative grounds for affirmance, that the trial court

improperly rejected their other CUTPA arguments. We

conclude that the majority of the plaintiffs’ claims were

properly struck insofar as those claims are predicated

on the theory that the sale of the XM15-E2S rifle to

Lanza’s mother or to the civilian market generally con-

stituted either negligent entrustment; see part III of this

opinion; or an unfair trade practice. See part IV B of this

opinion. We also conclude, however, that the plaintiffs

have standing to prosecute their CUTPA claims under

Connecticut law. See part IV A of this opinion. We

further conclude that PLCAA does not bar the plaintiffs

from proceeding on the single, limited theory that the

defendants violated CUTPA by marketing the XM15-

E2S to civilians for criminal purposes, and that those

wrongful marketing tactics caused or contributed to

the Sandy Hook massacre.14 See part V of this opinion.

Accordingly, we affirm in part and reverse in part the

judgment of the trial court and remand the case for

further proceedings.

II

ALLEGED FACTS

Because we are reviewing the judgment of the trial

court rendered on a motion to strike, we must assume

the truth of the following facts, as alleged by the plain-

tiffs.15 Lanza carried out the Sandy Hook massacre using

a Bushmaster XM15-E2S rifle. That rifle is Remington’s

version of the AR-15 assault rifle, which 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.

The AR-15 and M16 are highly lethal weapons that are

engineered to deliver maximum carnage with extreme

efficiency. Several features make these rifles especially

well suited for combat and enable a shooter to inflict

unparalleled carnage. Rapid semiautomatic fire

‘‘unleashes a torrent of bullets in a matter of seconds.’’

The ability to accommodate large capacity magazines

allows for prolonged assaults. Exceptional muzzle

velocity makes each hit catastrophic. Indeed, the plain-

tiffs contend, bullets fired from these rifles travel at

such a high velocity that they cause a shockwave to pass

through the body upon impact, resulting in catastrophic

injuries even in areas remote to the direct wound.

Finally, the fact that the AR-15 and M16 are lightweight,

air-cooled, gas-operated, and magazine fed, enabling

rapid fire with limited recoil, means that their lethality is

not dependent on good aim or ideal combat conditions.

These features endow the AR-15 with a lethality that

surpasses even that of other semiautomatic weapons.

‘‘The net effect is more wounds, of greater severity, in

more victims, in less time.’’ That lethality, combined

with the ease with which criminals and mentally unsta-

ble individuals can acquire an AR-15, has made the rifle

the weapon of choice for mass shootings, including

school shootings.

The particular weapon at issue in this case was manu-

factured and sold by the Bushmaster defendants. Some-

time prior to March, 2010, the Bushmaster defendants

sold the rifle to the Camfour defendants. The Camfour

defendants subsequently sold the rifle to the Riverview

defendants, who operate a retail gun store located in

the town of East Windsor.

In March, 2010, Lanza’s mother purchased the rifle

from the Riverview defendants. Lanza, who was seven-

teen years old at the time, had expressed a desire to join

the elite United States Army Rangers unit. His mother

bought the rifle to give to or share with him in order

to connect with him. However, when Lanza turned eigh-

teen on April 22, 2010, he did not enlist in the military.

Still, he gained unfettered access to a military style

assault rifle.

Eight months later, on the morning of December 14,

2012, Lanza retrieved the rifle and ten 30 round maga-

zines. Using a technique taught in the first person

shooter video games that he played, he taped several

of those magazines together to allow for faster reload-

ing. He then drove to Sandy Hook Elementary School.

Just before 9:30 a.m., Lanza shot his way into the

locked school using the XM15-E2S. He immediately shot

and killed Mary Joy Sherlach as well as the school’s

principal. He subsequently shot and wounded two

staff members.

Lanza next entered Classroom 8, where he used the

rifle to kill two adults and fifteen first grade children,

including five of the plaintiffs. Finally, he entered Class-

room 10, where he used the rifle to kill two adults and

five first grade children, including three of the plaintiffs.

Nine children from Classroom 10 were able to escape

when Lanza paused to reload with another magazine.

In total, the attack lasted less than four and one-half

minutes, during which Lanza fired at least 154 rounds

from the XM15-E2S, killing twenty-six and wounding

two others.16

The plaintiffs filed the present action in 2014 seeking

damages and injunctive relief. Each of the counts in

the operative first amended complaint is predicated on

two distinct theories of liability. First, the plaintiffs

contend that the AR-15 is a military grade weapon that

is ‘‘grossly ill-suited’’ for legitimate civilian purposes

such as self-defense and recreation. They also allege

that the AR-15 has become the weapon of choice for

mass shootings and, therefore, that the risks associated

with selling the weapon to the civilian market far out-

weigh any potential benefits. The defendants continued

to sell the XM15-E2S despite their knowledge of these

facts. Therefore, the plaintiffs contend, it was both neg-

ligent and an unfair trade practice for each of the defen-

dants to sell the weapon, knowing that it eventually

would be purchased by a civilian customer who might

share it with other civilian users.

The plaintiffs’ second theory of liability is that the

defendants advertised and marketed the XM15-E2S in

an unethical, oppressive, immoral and unscrupulous

manner. They contend that the defendants have sought

to grow the AR-15 market by extolling the militaristic

and assaultive qualities of their AR-15 rifles and, specifi-

cally, the weapon’s suitability for offensive combat mis-

sions. The plaintiffs argue that the defendants’ milita-

ristic marketing reinforces the image of the AR-15 as

a combat weapon that is intended to be used for the

purposes of waging war and killing human beings. Con-

sistent with that image, the defendants further pro-

moted the XM15-E2S as a combat weapon system by

designating in their product catalogues that the rifle

comes ‘‘standard’’ with a 30 round magazine which,

the plaintiffs allege, differs from how the defendants

promote and sell rifles for legal civilian purposes such

as hunting and sport shooting.17

The plaintiffs further contend that the defendants

unethically promoted their assault weapons for offen-

sive, military style missions by publishing advertise-

ments and distributing product catalogs that (1)

promote the AR-15 as ‘‘the uncompromising choice

when you demand a rifle as mission adaptable as you

are,’’ (2) depict soldiers moving on patrol through jun-

gles, armed with Bushmaster rifles, (3) feature the slo-

gan ‘‘[w]hen you need to perform under pressure,

Bushmaster delivers,’’ superimposed over the silhou-

ette of a soldier holding his helmet against the backdrop

of an American flag, (4) tout the ‘‘military proven perfor-

mance’’ of firearms like the XM15-E2S, (5) promote

civilian rifles as ‘‘the ultimate combat weapons system,’’

(6) invoke the unparalleled destructive power of their

AR-15 rifles, (7) claim that the most elite branches of

the United States military, including the United States

Navy SEALs, the United States Army Green Berets and

Army Rangers, and other special forces, have used the

AR-15, and (8) depict a close-up of an AR-15 with the

following slogan: ‘‘Forces of opposition, bow down. You

are single-handedly outnumbered.’’

Finally, with respect to this second, wrongful market-

ing theory of liability, the plaintiffs contend that the

defendants’ marketing of the XM15-E2S to civilians for

offensive assault missions was a substantial factor in

causing the plaintiffs’ injuries. Specifically, they con-

tend that Lanza had dreamed as a child of joining the

elite Army Rangers unit of the United States Army and

was, therefore, especially susceptible to militaristic

marketing. They further contend that he selected the

XM15-E2S for his assault from among an arsenal that

included various less lethal arms—at least three hand-

guns, one shotgun, two bolt action rifles, and three

samurai swords—and that he specifically chose the

XM15-E2S not only for its functional capabilities,

including its assaultive qualities and efficiency in

inflicting mass casualties, but also because of its mar-

keted association with the military.18 Finally, they con-

tend that Lanza was a devoted player of first person

shooter games featuring variants of the XM15-E2S and

that he employed techniques taught in those games to

enhance the lethality of his assault on the school. In

other words, the plaintiffs allege that the attack, had it

occurred at all, would have been less lethal and the

carnage less grievous if Lanza had not been encouraged

by the defendants’ marketing campaign to select the

XM15-E2S as his weapon of choice and taught by violent

video games how to kill with it most efficiently. Addi-

tional facts and procedural history will be set forth

as necessary.

III

NEGLIGENT ENTRUSTMENT

In opposition to the defendants’ motions to strike,

the plaintiffs argued that their claims were not barred

by PLCAA because the claims are predicated on allega-

tions of negligent entrustment and CUTPA violations,

both of which satisfy statutory exceptions to PLCAA

immunity. In this part of the opinion, we consider

whether the trial court correctly concluded that the

plaintiffs’ claims were legally insufficient to the extent

that those claims are predicated on a theory of negligent

entrustment. The trial court concluded both that the

plaintiffs had not sufficiently pleaded a cause of action

in negligent entrustment under Connecticut common

law and, in the alternative, that the plaintiffs’ allegations

did not satisfy PLCAA’s statutory definition of negligent

entrustment. See 15 U.S.C. § 7903 (5) (B) (2012).19 The

plaintiffs challenge both conclusions on appeal.

Because we agree with the trial court that the plaintiffs

have not pleaded a legally sufficient cause of action in

negligent entrustment under our state’s common law,

we need not consider whether negligent entrustment

claims must meet stricter requirements in order to sat-

isfy the federal statutory exception.

The following additional procedural history is rele-

vant to this issue. In response to the defendants’

motions to strike, the plaintiffs argued that their claims

are not precluded by PLCAA because each of their

claims is predicated in part on a theory of negligent

entrustment and PLCAA does not confer immunity on

sellers of firearms in actions for negligent entrustment.

See 15 U.S.C. § 7903 (5) (A) (ii) (2012).20 In its decision

granting the defendants’ motions to strike, the trial

court concluded that an action for negligent entrust-

ment will lie only when the supplier of a dangerous

instrumentality such as a firearm knows or has reason

to know that the direct entrustee is likely to use the

item unsafely. Because the plaintiffs did not allege that

there was any specific reason to believe that the Cam-

four defendants (as direct entrustees of the Remington

defendants), the Riverview defendants (as direct

entrustees of the Camfour defendants), or Lanza’s

mother (as a direct entrustee of the Riverview defen-

dants) was incompetent to operate the XM15-E2S or had

a propensity to use the weapon in an unsafe manner,

the court granted all of the defendants’ motions to strike

with respect to the plaintiffs’ negligent entrustment the-

ories of liability.

We commence our review of this issue with a brief

discussion of the history of and principles that animate

the tort of negligent entrustment. The cause of action

for negligent entrustment represents a departure from

the general rule that an individual cannot be held liable

for the conduct of others. It reflects a legitimate societal

concern that a person in possession of a dangerous

instrument should bear the responsibility of exercising

care when entrusting that instrument to another, given

the serious risk to society if items like firearms or auto-

mobiles should fall into unfit hands. See J. Fisher, Com-

ment, ‘‘So How Do You Hold This Thing Again?: Why

the Texas Supreme Court Should Turn the Safety off

the Negligent Entrustment of a Firearm Cause of

Action,’’ 46 Tex. Tech. L. Rev. 489, 495, 501 (2014). The

primary question that we must resolve is whether these

principles apply only when the entrustor believes or

has specific reason to believe that the direct entrustee

is likely to use the item unsafely or, rather, whether

they also apply when it is reasonably foreseeable that

the entrustment ultimately will lead to injurious use,

whether by the direct entrustee or by some unknown

third party.21 If the former, then the trial court properly

found for the defendants on this issue as a matter of

law; if the latter, then the plaintiffs are correct that the

plaintiffs’ claim presents an issue of fact to be decided

by a jury.

Although the idea that it may be wrong to entrust a

weapon or other dangerous item to one likely to misuse

it is as old as civilization,22 the common-law tort of

negligent entrustment traces its origins to Dixon v. Bell,

105 Eng. Rep. 1023 (K.B. 1816). See B. Todd, ‘‘Negligent

Entrustment of Firearms,’’ 6 Hamline L. Rev. 467, 467

and n.1 (1983). In Dixon, the defendant sent a preado-

lescent girl to retrieve a loaded gun, resulting in the

accidental shooting of the plaintiff’s son. See Dixon v.

Bell, supra, 1023. In upholding a verdict for the plaintiff

that the defendant was liable for entrusting the girl

with the care and custody of the weapon, the court

recognized that ‘‘he well [knew] that the said [girl] was

too young, and an unfit and improper person to be sent

for the gun . . . .’’ Id.

American courts began applying the doctrine of negli-

gent entrustment in the 1920s, following the advent of

the mass produced automobile; see J. Fisher, supra, 46

Tex. Tech. L. Rev. 493; and Connecticut first recognized

the common-law cause of action in Turner v. American

District Telegraph & Messenger Co., 94 Conn. 707, 110

A. 540 (1920). In that case, the defendant security com-

pany entrusted a loaded pistol to an employee who later

instigated a fight with and ultimately shot the plaintiff,

a customer’s night watchman. Id., 708–11 (preliminary

statement of facts). This court held that there was insuf-

ficient evidence to support a verdict for the plaintiff on

his negligent entrustment claim because there was not

‘‘even a scintilla of evidence that the defendant had or

ought to have had knowledge or even suspicion that

[its employee] possessed any of the traits . . . attrib-

uted to him by the plaintiff,’’ including that ‘‘he was a

reckless person, liable to fall into a passion, and unfit

to be [e]ntrusted with a deadly weapon . . . .’’ Id., 716.

‘‘Without this vitally important fact,’’ the court con-

cluded, ‘‘the plaintiff’s claim falls to the ground

. . . .’’ Id.

Other Connecticut cases decided in the early twenti-

eth century, although not always expressly resolved

under the rubric of negligent entrustment, also sug-

gested that a person can be held liable for third-party

injuries resulting from another’s use of a dangerous

item only if the entrustment of that item was made with

actual or constructive knowledge that misuse by the

entrustee was foreseeable. In Wood v. O’Neil, 90 Conn.

497, 97 A. 753 (1916), for example, this court held that

no cause of action in negligence could be maintained

against the parents of a fifteen year old boy who acci-

dentally shot a companion with a shotgun because the

parents, in permitting the boy to use the gun, had no

specific knowledge that he ‘‘was possessed of a marked

careless disposition.’’ Id., 500.

Subsequently, in Greeley v. Cunningham, 116 Conn.

515, 165 A. 678 (1933), we articulated the standards that

govern a negligent entrustment action in the context

of automobiles, which since has become the primary

context in which such claims have arisen. See generally

J. Fisher, supra, 46 Tex. Tech. L. Rev. 489. In Greeley, the

plaintiff alleged that the defendant had been negligent

in entrusting his car to an unlicensed driver, who subse-

quently caused an accident while attempting to pass the

plaintiff’s vehicle. See Greeley v. Cunningham, supra,

517–18. ‘‘[Although] liability cannot be imposed [on] an

owner merely because he [e]ntrusts [his automobile]

to another to drive [on] the highways,’’ the court

explained, ‘‘[i]t is . . . coming to be generally held that

the owner may be liable for injury resulting from the

operation of an automobile he loans to another when

he knows or ought reasonably to know that the one to

whom he [e]ntrusts it is so incompetent to operate it,

by reason of inexperience or other cause, that the owner

ought reasonably to anticipate the likelihood that in its

operation injury will be done to others.’’ (Emphasis

added.) Id., 518. This court proceeded to set forth the

elements of a cause of action sounding in negligent

entrustment of an automobile: (1) the owner of an auto-

mobile entrusts it to another person (2) whom the

owner knows or should reasonably know is so incompe-

tent to operate it that injury to others should reasonably

be anticipated, and (3) such incompetence results in

injury. Id., 520.

Since this court decided Wood, Turner, and Greeley, it

never has suggested that a cause of action for negligent

entrustment—whether involving a vehicle, a weapon,

or some other dangerous item—will lie in the absence

of evidence that the direct entrustee is likely to use the

item unsafely. Most jurisdictions that have recognized

a cause of action in negligent entrustment likewise

require that the actor have actual or constructive knowl-

edge that the specific person to whom a dangerous

instrumentality is directly entrusted is unfit to use it

properly. See, e.g., J. Fisher, supra, 46 Tex. Tech. L.

Rev. 496; B. Todd, supra, 6 Hamline L. Rev. 467; S. Beal,

‘‘Saving Negligent Entrustment Claims,’’ Trial, Febru-

ary, 2007, p. 35.

In accordance with the majority view, this also is the

rule set forth in the Restatement (Second) of Torts.

Section 308 of the Restatement (Second) provides that

‘‘[i]t is negligence to permit a third person to use a thing

. . . [that] is under the control of the actor, if the actor

knows or should know that such person intends or is

likely to use the thing . . . in such a manner as to

create an unreasonable risk of harm to others.’’ (Empha-

sis added.) 2 Restatement (Second), Torts § 308, p. 100

(1965). Section 390, which further defines the tort of

negligent entrustment, provides that ‘‘[o]ne who sup-

plies . . . a chattel for the use of another whom the

supplier knows or has reason to know to be likely

because of his youth, inexperience, or otherwise, to use

it in a manner involving unreasonable risk of physical

harm to himself and others . . . is subject to liability

for physical harm resulting to them.’’ 2 id., § 390, p. 314;

see also B. Todd, supra, 6 Hamline L. Rev. 467 and n.5.

We take it as well established, then, that, in order to

prove negligent entrustment, a plaintiff must demon-

strate that (1) the defendant has entrusted a potentially

dangerous instrumentality to a third person (2) whom

the entrustor knows or should know intends or is likely

to use the instrumentality in a manner that involves

unreasonable risk of physical harm, and (3) such use

does in fact cause harm to the entrustee or others.

The rule that a cause of action for negligent

entrustment will lie only when the entrustor knows or

has reason to know that the direct entrustee is likely

to use a dangerous instrumentality in an unsafe manner

would bar the plaintiffs’ negligent entrustment claims.

Specifically, there is no allegation in this case that there

was any reason to expect that Lanza’s mother was likely

to use the rifle in an unsafe manner.23

The plaintiffs, recognizing that they cannot prevail

under this rule, invite us to adopt a different framework,

one ‘‘that focuses on the existence of a nexus between

the defendant and the dangerous user—rather than the

number of steps between them . . . .’’ In other words,

their proposal is that a party alleging negligent

entrustment need prove only that it was reasonably

foreseeable that, following the initial entrustment of a

dangerous instrumentality, that instrumentality ulti-

mately would come into the possession of someone

who would use it in an unsafe manner. A jury could

find that standard satisfied in this case, they contend,

because (1) Remington allegedly marketed its assault

rifles to young men who play violent, first person

shooter video games and who, as a class, have a history

of using such rifles in real mass shootings, and (2)

there is evidence that individuals who legally purchase

weapons such as the AR-15 often share the weapons

with family members, including young men.

We decline the plaintiffs’ invitation to stretch the

doctrine of negligent entrustment so far beyond its his-

torical moorings. We recognize that some of our sister

state courts have permitted negligent entrustment

actions to proceed when, although there was no indica-

tion that the direct entrustee was incompetent to use

a dangerous item, there was reason to believe that the

entrustee would in turn share the item with a specific

third party who would misuse it. This has been the case,

for example, when a parent or other agent purchased

a weapon or vehicle for a child who was present at the

place and time of sale.24 We need not decide whether

and to what extent Connecticut would recognize a

cause of action for negligent entrustment under such

circumstances, however, because, in the present case,

the plaintiffs do not allege that any of the defendants

possessed any knowledge or had any specific reason

to believe either that Lanza’s mother would share the

XM15-E2S with her son or that he was especially likely

to operate it unsafely or illegally. In any event, the

plaintiffs have failed to cite to a single case, from any

jurisdiction, that allowed an action for negligent

entrustment to proceed when the nexus between a man-

ufacturer of a product and the person who ultimately

used that product in an unsafe manner was as attenu-

ated as it is in the present case.25

We also recognize that there is authority for the prop-

osition that entrustment may be deemed negligent when

the entrustor has no specific knowledge regarding the

entrustee’s personal competence or character but

knows that the entrustee is a member of a class that

is notoriously unfit to safely utilize the entrusted item.

See 2 Restatement (Second), supra, § 308, comment (b),

p. 100. The plaintiffs argue that we should apply that

principle in this case because (1) gun buyers as a class

are known to sometimes share their weapons with fam-

ily members, including young males, and (2) young

males, in turn, are known to sometimes use assault

weapons to commit mass shootings. Once again, we

decline the invitation to so dramatically expand the

scope of negligent entrustment liability.

As we noted, the tort of negligent entrustment saw

its florescence, if not its modern genesis, in the advent

of the mass produced automobile. See B. Todd, supra,

6 Hamline L. Rev. 467; A. Cholodofsky, Note, ‘‘Torts:

Does the Negligent Entrustment Doctrine Apply to Sell-

ers?’’ 39 U. Fla. L. Rev. 925, 928 (1987). In some

instances, a person may be unsuited to drive an automo-

bile because he is reckless, or inebriated, or otherwise

distinctly unfit to drive safely on the public roads. See

A. Cholodofsky, supra, 926 and nn. 5–6. It also is a

matter of common sense and common knowledge, how-

ever, that certain classes of people—e.g., young chil-

dren and blind persons—are inherently unfit to drive.

Our laws recognize as much. See General Statutes § 14-

36 (c) and (e) (establishing, among other things, age

and vision screening requirements for motor vehicle

operator’s permit or license). Accordingly, one may be

negligent for entrusting an automobile to such users

even in the absence of any particular knowledge about

their individual driving skills, experience, or tempera-

ment. A jury reasonably might conclude that the same

is true with respect to firearms and other weapons and

dangerous equipment. See B. Todd, supra, 468–69.

The plaintiffs’ theory, however, is fundamentally dif-

ferent. They do not contend that all gun buyers such

as Lanza’s mother, or young men such as Lanza, are

incapable of safely operating an AR-15. The plaintiffs

do not even contend that such users usually or even

frequently operate such weapons unsafely or unlaw-

fully. Rather, the plaintiffs contend that it is objectively

unreasonable to legally sell an assault weapon to an

adult buyer, for no other reason than that some small

subset of buyers will share weapons with their young

adult sons and some much smaller subset of young

adult males will use those weapons to commit terrible,

random crimes. The only plausible way to construe that

claim—and we do not understand the plaintiffs to deny

this—is that any commercial sale of assault weapons

to civilian users constitutes negligent entrustment

because the social costs of such sales outweigh the

perceived benefits. Other courts have rejected such a

theory, as do we. See, e.g., McCarthy v. Sturm, Ruger &

Co., 916 F. Supp. 366, 370 (S.D.N.Y. 1996), aff’d sub

nom. McCarthy v. Olin Corp., 119 F.3d 148 (2d Cir.

1997); Merrill v. Navegar, Inc., 26 Cal. 4th 465, 483–84,

28 P.3d 116, 110 Cal. Rptr. 2d 370 (2001); see also Phil-

lips v. Lucky Gunner, LLC, 84 F. Supp. 3d 1216, 1226

(D. Colo. 2015) (rejecting theory that unmediated online

sales of hazardous items represent negligent entrust-

ment), appeal dismissed, United States Circuit Court

of Appeals, Docket No. 15-1153 (10th Cir. July 21, 2015).

Accordingly, the plaintiffs’ action cannot proceed under

the negligent entrustment exception to immunity

under PLCAA.

IV

WRONGFUL DEATH AND CUTPA:

ISSUES OF STATE LAW

We turn next to the question of whether the trial

court properly granted the defendants’ motion to strike

the plaintiffs’ wrongful death claims insofar as those

claims are predicated on alleged CUTPA violations.

Because we have concluded that the plaintiffs have not

pleaded a legally sufficient negligent entrustment claim

under Connecticut common law, PLCAA will bar the

present action unless (1) the plaintiffs have pleaded a

cognizable CUTPA violation, and (2) CUTPA consti-

tutes a predicate statute for purposes of 15 U.S.C. § 7903

(5) (A) (iii).

In their motions to strike, the defendants argued,

among other things, that (1) the plaintiffs’ claims were

barred by CUTPA’s three year statute of limitations,

(2) damages for personal injuries and death resulting

therefrom are not cognizable under CUTPA, (3) the

plaintiffs’ CUTPA claims are precluded by the Product

Liability Act; see General Statutes § 52-572n (a); and

(4) CUTPA is not a valid predicate statute for purposes

of PLCAA. The trial court rejected each of these argu-

ments. The court agreed with the defendants, however,

that CUTPA does not afford protection to persons who

do not have a consumer or other commercial relation-

ship with the alleged wrongdoer. Accordingly, the court

concluded that the plaintiffs lacked standing to pursue

wrongful death claims predicated on CUTPA violations.

On appeal, the plaintiffs contend that the trial court

improperly struck their claims for lack of standing to

pursue them under CUTPA. For their part, the defen-

dants claim that the trial court’s judgment can be

affirmed on the alternative ground that the court’s other

determinations were improper.

As an initial matter, we reiterate that the plaintiffs’

CUTPA based wrongful death claims are predicated on

at least two fundamentally distinct theories of liability.

First, the plaintiffs contend that the defendants violated

CUTPA by selling the XM15-E2S to the civilian market

despite their knowledge that there is no legitimate civil-

ian use for such a weapon, that assault weapons such

as the AR-15 pose unreasonable risks when used by

civilians, and that individuals unfit to operate such

weapons likely would gain access to them. In other

words, the plaintiffs allege, in essence, that any sale of

any assault weapon to any civilian purchaser in Con-

necticut is, ipso facto, an unfair trade practice under

CUTPA.

Second, the plaintiffs contend that the defendants

violated CUTPA by advertising and marketing the

XM15-E2S in an unethical, oppressive, immoral, and

unscrupulous manner that promoted illegal offensive

use of the rifle. Specifically, they allege that the defen-

dants:

• promoted use of the XM15-E2S for offensive,

assaultive purposes—specifically, for ‘‘wag-

ing war and killing human beings’’—and not

solely for self-defense, hunting, target prac-

tice, collection, or other legitimate civilian

firearm uses

• extolled the militaristic qualities of the XM15-

E2S

• advertised the XM15-E2S as a weapon that

allows a single individual to force his multiple

opponents to ‘‘bow down’’

• marketed and promoted the sale of the XM15-

E2S with the expectation and intent that it

would be transferred to family members and

other unscreened, unsafe users after its pur-

chase.

The plaintiffs further allege in this regard that such

promotional tactics were causally related to some or

all of the injuries that were inflicted during the Sandy

Hook massacre.

For the reasons that follow, we conclude that the

trial court improperly granted the defendants’ motion

to strike these allegations in their entirety. We agree

with the plaintiffs that the trial court improperly con-

cluded that they lack standing to pursue any of their

CUTPA claims against the defendants. With respect to

the plaintiffs’ first theory of CUTPA liability—that the

sale of AR-15s to the civilian population is ipso facto

unfair—we agree with the defendants that the trial

court’s judgment can be affirmed on the alternative

ground that the plaintiffs’ claim is time barred under

the CUTPA statute of limitations. Cf. footnote 14 of this

opinion. However, with respect to the plaintiffs’ second

theory of liability—that the defendants’ wrongful mar-

keting of the XM15-E2S for illegal, offensive purposes

was a causal factor in increasing the casualties of the

Sandy Hook massacre—we find the defendants’ various

alternative bases for affirmance unpersuasive.

A

CUTPA Standing

Although the plaintiffs brought their claims pursuant

to the wrongful death statute; General Statutes § 52-

555; a wrongful death action will lie only when the

deceased person could have brought a valid claim for

the injuries that resulted in death if he or she had sur-

vived. See part IV B of this opinion. Accordingly, to

survive a motion to strike, the plaintiffs must be able

to establish that they have standing to pursue a CUTPA

claim for their injuries. We first consider whether the

trial court properly concluded that the plaintiffs lacked

standing to bring the present action under CUTPA

because they were third-party victims who did not have

a direct consumer, commercial, or competitor relation-

ship (business relationship or privity requirement) with

the defendants. Because the principal evils associated

with unscrupulous and illegal advertising are not ones

that necessarily arise from or infect the relationship

between an advertiser and its customers, competitors,

or business associates, we hold that a party directly

injured by conduct resulting from such advertising can

bring an action pursuant to CUTPA even in the absence

of a business relationship with the defendant. Accord-

ingly, we agree with the plaintiffs that the trial court

improperly struck their CUTPA based wrongful death

claims.

Whether one must have entered into a consumer or

commercial relationship with an alleged wrongdoer in

order to have standing to bring a CUTPA action presents

a question of statutory interpretation. The plain mean-

ing of the statutory text must be our lodestar. See Gen-

eral Statutes § 1-2z.

General Statutes § 42-110g (a) creates a private right

of action for persons injured by unfair trade practices

and provides in relevant part: ‘‘Any person who suffers

any ascertainable loss of money or property, real or

personal, as a result of the use or employment of a

method, act or practice prohibited by section 42-110b,

may bring an action . . . to recover actual damages.

. . .’’ (Emphasis added.) On its face, the statute plainly

and unambiguously authorizes anyone who has suf-

fered an ascertainable financial loss as a result of an

unfair trade practice to bring a CUTPA action. Nothing

in the text of the statute indicates that the right afforded

by § 42-110g (a) is enjoyed only by persons who have

done business of some sort with a defendant.

Even if we were to conclude that the statute is ambig-

uous in this regard, we perceive nothing in the legisla-

tive history or purpose of the statute that would support

the defendants’ theory that something more than an

ascertainable financial loss caused by a prohibited act

is necessary to confer standing under CUTPA. When

CUTPA originally was enacted in 1973, the statute

authorized private actions for ‘‘[a]ny person who pur-

chases or leases goods or services from a seller or lessor

primarily for personal, family or household purposes

and thereby suffers any ascertainable loss of money or

property, real or personal, as a result . . . .’’ (Emphasis

added.) Public Acts 1973, No. 73-615, § 7 (P.A. 73-615),

codified as amended at General Statutes (Rev. to 1975)

§ 42-110g (a). It is clear, then, that a direct consumer

relationship initially was required in order to bring a

CUTPA action.

Over the following decade, however, a series of

amendments eliminated that privity requirement. Of

particular note are the 1975 and 1979 amendments. In

1975, the legislature amended the statute to confer

standing on two distinct classes of plaintiffs. See Public

Acts 1975, No. 75-618, § 5 (P.A. 75-618). As amended,

the statute provided that CUTPA actions can be brought

either by ‘‘any person who purchases or leases goods

or services from a seller or lessor primarily for personal,

family or household purposes and thereby suffers any

ascertainable loss . . . as a result’’ or by ‘‘[a]ny person

who suffers any ascertainable loss of money or prop-

erty, real or personal, as a result [of a prohibited prac-

tice] . . . .’’ P.A. 75-618, § 5, codified as amended at

General Statutes (Rev. to 1977) § 42-110g (a). In other

words, the legislature conferred standing on an addi-

tional category of plaintiffs, namely, those whose injur-

ies were not the result of a direct consumer purchase

or lease of goods or services. Presumably recognizing

that the original category of CUTPA plaintiffs (con-

sumer direct purchasers and lessors) had become

redundant insofar as it was merely a subset of the new,

broader category that had been added in the 1975

amendments—i.e., any person who suffers an injury as a

result of a prohibited practice—the legislature amended

the statute again in 1979 to eliminate the reference to

direct purchasers. See Public Acts 1979, No. 79-210, § 1,

codified at General Statutes (Rev. to 1981) § 42-110g (a).

As we previously have explained; see Vacco v. Microsoft

Corp., 260 Conn. 59, 86–87 and n.30, 793 A.2d 1048

(2002); it is clear from this history that, although a

business relationship initially was required to bring a

CUTPA action, the legislature chose to eliminate that

privity requirement and instead conferred standing on

any person who could establish an ascertainable loss

as a result of an unfair trade practice.

This conclusion finds additional support in the legis-

lative proceedings pertaining to the various 1970s

amendments. From the start, CUTPA prohibited unfair

trade practices associated not only with the actual sale

and distribution of products and services, but also with

the advertising and offering of those products and ser-

vices for sale.26 However, when the House of Represen-

tatives debated Substitute House Bill No. 5613, the bill

that ultimately became No. 78-346 of the 1978 Public

Acts, several representatives expressed concerns that

the original file copy of that bill might be understood

to mean that unfair advertising would no longer consti-

tute a prohibited trade practice. In explaining the need

to amend the bill, Representative Raymond C. Ferrari

cautioned that CUTPA should not be watered down so

as to ‘‘require the actual sale of an item as opposed to

simply allow[ing] the enforcement under an advertise-

ment . . . .’’ 21 H.R. Proc., Pt. 10, 1978 Sess., p. 3987.

Representative Robert F. Frankel expressed similar

sentiments. See 21 H.R. Proc., Pt. 11, 1978 Sess., p.

4319 (‘‘we would actually be rolling back some of the

coverage of [CUTPA] wherein we would be requiring

a sale of advertised products before the Commissioner

[of Consumer Protection] could become involved’’).

The fact that the legislature sought to ensure that adver-

tising alone—even advertising that never results in a

sale—could constitute a prohibited practice suggests

that an actual business relationship was not deemed to

be a precondition for a CUTPA action following the

1975 amendments.

It is true that the primary concern of those representa-

tives during the 1978 hearings was to prevent the

Department of Consumer Protection (department) from

being stripped of its authority to aggressively enforce

CUTPA violations relating to false or misleading adver-

tising. It is, of course, possible that the legislature

wanted the department to be able to curtail wrongful

advertising campaigns at their inception, without hav-

ing to wait until consumers were harmed before taking

legal action, but intended that private individuals not

have standing to sue unless and until they had pur-

chased goods or services in reliance on such advertise-

ments. It bears emphasis, however, that the legislative

history of CUTPA is replete not only with references

to the broad scope and remedial nature of the act27 but

also with statements specifically indicating a legislative

awareness that the department and the Office of the

Attorney General were not equipped to prosecute every

unfair trade practice and a concomitant belief that it

was important to incentivize broad enforcement action

by private litigants.28 See, e.g., Hinchliffe v. American

Motors Corp., 184 Conn. 607, 615 and nn. 4–5, 618, 440

A.2d 810 (1981).

More directly on point is the testimony of Assistant

Attorney General Arnold Feigen, which was offered on

behalf of Attorney General Carl Ajello and Commis-

sioner of Consumer Protection Mary Heslin, before the

General Law Committee. See Conn. Joint Standing Com-

mittee Hearings, General Law, Pt. 4, 1979 Sess., p. 1159.

Testifying in favor of the 1979 amendment that elimi-

nated the direct purchaser requirement language,

Feigen explained that ‘‘[n]umerous arguments have

been raised in both state and federal courts that [a]

plaintiff, in order to sue, must be a purchaser or a lessee

of a seller . . . .’’ Id. ‘‘The amendment,’’ he opined,

‘‘will now allow a suit by any person who suffers any

ascertainable loss of money or property.’’ Id. Those

statements, although not dispositive of the question

before us, provide support for the plaintiffs’ theory that

the legislature intended to eliminate the business rela-

tionship requirement when it amended CUTPA. See

Vacco v. Microsoft Corp., supra, 260 Conn. 86–87 and

n.30.

The defendants, while implicitly acknowledging that

the plain language of § 42-110g (a) no longer imposes

a business relationship requirement, offer two argu-

ments as to why we should continue to read such a

requirement into the statute. First, they contend that

the trial court properly concluded that our prior cases

and those of the Appellate Court have recognized a

business relationship requirement and that principles

of stare decisis and legislative acquiescence counsel

against departing from those decisions. Second, the

defendants contend that prudential concerns support

limiting CUTPA standing to persons who have a direct

business relationship with the alleged wrongdoer. We

consider each argument in turn.

In support of its conclusion that our cases impose a

business relationship requirement, the trial court relied

on this court’s decisions in Vacco v. Microsoft Corp.,

supra, 260 Conn. 59, and Ventres v. Goodspeed Airport,

LLC, 275 Conn. 105, 881 A.2d 937 (2005), cert. denied,

547 U.S. 1111, 126 S. Ct. 1913, 164 L. Ed. 2d 664 (2006).

Neither decision compels such a result.

In Vacco, we recognized that the legislature, by

‘‘ ‘deleting all references to ‘‘purchasers, sellers, lessors,

or lessees’’ ’ ’’ in § 42-110g (a) in 1979, had eliminated

CUTPA’s privity requirement. Vacco v. Microsoft Corp.,

supra, 260 Conn. 88. We proceeded to clarify, however,

that the elimination of the privity requirement did not

mean that anyone could bring a CUTPA action, no mat-

ter how attenuated the connection between his or her

injuries and a defendant’s allegedly unfair trade prac-

tices. ‘‘Notwithstanding the elimination of the privity

requirement,’’ we explained, ‘‘it strains credulity to con-

clude that CUTPA is so formless as to provide redress

to any person, for any ascertainable harm, caused by

any person in the conduct of any trade or commerce.’’

(Internal quotation marks omitted.) Id. We further

observed, however, that CUTPA liability could reason-

ably be cabined in the same manner as with common-

law tort actions: ‘‘[N]otwithstanding the broad language

and remedial purpose of CUTPA, we have applied tradi-

tional common-law principles of remoteness and proxi-

mate causation to determine whether a party has

standing to bring an action under CUTPA.’’ (Footnote

omitted.) Id. Notably, we cited Ganim v. Smith & Wes-

son Corp., 258 Conn. 313, 780 A.2d 98 (2001), as an

example of a case in which the alleged harms suffered

by the plaintiffs—the city of Bridgeport and its mayor—

as a result of gun violence were ‘‘too remote and deriva-

tive’’ with respect to the challenged conduct for the

plaintiffs to have standing to bring a CUTPA claim.

Vacco v. Microsoft Corp., supra, 88–89, citing Ganim

v. Smith&Wesson Corp., supra, 344, 365.We proceeded

in Vacco to apply the same three part remoteness analy-

sis that we had applied in Ganim, ultimately concluding

that the plaintiff lacked standing because his injuries

were too remote in relation to the defendant’s allegedly

anticompetitive conduct. Vacco v. Microsoft Corp.,

supra, 90–92; see Ganim v. Smith & Wesson Corp.,

supra, 353. Accordingly, Vacco stands for the proposi-

tion that standing to bring a CUTPA claim will lie only

when the purportedly unfair trade practice is alleged

to have directly and proximately caused the plaintiff’s

injuries. This remoteness requirement serves the same

function as a privity requirement, as it mitigates any

concerns associated with imposing limitless liability on

CUTPA defendants.

Although our decision in Ventres could be read to

suggest that the plaintiff must have a business relation-

ship with the defendant, a closer review indicates that

it does not stand for this sweeping proposition. In that

case, a land trust and a conservancy (property owners)

alleged that the named defendant, Goodspeed Airport,

LLC, among other defendants, had violated CUTPA by

trespassing on the property owners’ land. See Ventres

v. Goodspeed Airport, LLC, supra, 275 Conn. 109, 112.

We concluded, as a matter of law, that, even if the

property owners had been able to prove their allega-

tions, none of the alleged conduct would have risen to

the level of a CUTPA violation. See id., 156–58.

As an alternative, independent basis for upholding

the trial court’s decision to strike the property owners’

CUTPA claims, we briefly considered the property own-

ers’ contention that a CUTPA plaintiff is not required

to allege any business relationship with a defendant,

summarily rejecting that claim on the ground that the

property owners had provided no authority for the prop-

osition. Id., 157–58. Significantly, in contrast to the pre-

sent case, Ventres did not involve allegations that a

business relationship between the defendants and a

third party had resulted in the harm alleged. Therefore,

we had no occasion to discuss or apply the proximate

cause analysis set forth in Vacco. See Vacco v. Microsoft

Corp., supra, 260 Conn. 90–92. In other words, there

was no business relationship that could result in any

causal connection to the injury alleged.

Accordingly, the court in Ventres did not hold that

every CUTPA claim requires a business relationship

between a plaintiff and a defendant. Indeed, we did not

analyze that issue, and at no point did we examine

either the text or the legislative history of the statute,

both of which, as we previously explained, strongly

suggest that the legislature did not intend to impose a

privity requirement. We thus conclude that the princi-

ples of stare decisis and legislative acquiescence do not

preclude us from construing § 42-110g (a) de novo in

the present case to address this question. See Igartua

v. Obama, 842 F.3d 149, 160 (1st Cir. 2016) (Torruella,

J., concurring in part and dissenting in part) (‘‘[c]onsid-

ering the cursory treatment given to this issue by the

. . . panel [in the prior decision], our hands are not

tied by stare decisis’’), cert. denied sub nom. Igartua

v. Trump, U.S. , 138 S. Ct. 2649, 201 L. Ed. 2d

1050 (2018).

Next, we consider the defendants’ argument that this

court has, for prudential reasons, set various limitations

on the types of parties that may bring CUTPA claims.

The defendants contend that similar policy rationales

counsel in favor of imposing a business relationship

requirement. In two of the cases that the defendants

cite in support of this proposition, however, this court

concluded that CUTPA simply did not govern the con-

duct at issue, and, therefore, we did not consider the

question of standing. See Haynes v. Yale-New Haven

Hospital, 243 Conn. 17, 34, 699 A.2d 964 (1997) (medical

malpractice claims are not subject to CUTPA); Russell

v. Dean Witter Reynolds, Inc., 200 Conn. 172, 180, 510

A.2d 972 (1986) (CUTPA does not apply to deceptive

practices in purchase and sale of securities). In the third

case on which the defendants rely, namely, Jackson v.

R. G. Whipple, Inc., 225 Conn. 705, 627 A.2d 374 (1993),

this court concluded that third parties lacked CUTPA

standing only in the context of the unique professional

relationship between attorneys and their clients. See

id., 729. Accordingly, the cases that the defendants cite,

which address unique professional service contexts and

relationships, provide little support for the general

proposition that CUTPA does not confer standing out-

side the limited confines of a business relationship

between the CUTPA plaintiff and defendant.

We need not decide today whether there are other

contexts or situations in which parties who do not share

a consumer, commercial, or competitor relationship

with an alleged wrongdoer may be barred, for pruden-

tial or policy reasons, from bringing a CUTPA action.

What is clear is that none of the rationales that underlie

the standing doctrine, either generally or in the specific

context of unfair trade practice litigation, supports the

denial of standing to the plaintiffs in this case. ‘‘Standing

. . . is a practical concept designed to ensure that

courts and parties are not vexed by suits brought to

vindicate nonjusticable interests and that judicial deci-

sions [that] may affect the rights of others are forged

in hot controversy, with each view fairly and vigorously

represented.’’ (Internal quotation marks omitted.)

Slimp v. Dept. of Liquor Control, 239 Conn. 599, 609, 687

A.2d 123 (1996). As we explained in Ganim v. Smith &

Wesson Corp., supra, 258 Conn. 313, there are several

reasons why standing traditionally has been restricted

to those parties directly injured by a defendant’s con-

duct: ‘‘First, the more indirect an injury is, the more

difficult it becomes to determine the amount of [the]

plaintiff’s damages attributable to the wrongdoing as

opposed to other, independent factors. Second, recog-

nizing claims by the indirectly injured would require

courts to adopt complicated rules apportioning dam-

ages among plaintiffs removed at different levels of

injury from the violative acts, in order to avoid the risk

of multiple recoveries. Third, struggling with the first

two problems is unnecessary [when] there are directly

injured parties who can remedy the harm without these

attendant problems.’’ (Internal quotation marks omit-

ted.) Id., 353.

Ganim, in fact, provides an instructive contrast to

the present case. In Ganim, the mayor and the city of

Bridgeport brought an action against handgun manufac-

turers, trade associations, and retail gun sellers to

recoup various municipal costs associated with gun

violence, including increased police and emergency ser-

vices, loss of investment, and victimization of Bridge-

port’s citizens. Id., 315–16, 326–27. We concluded that

the municipal plaintiffs lacked standing under CUTPA

because the ‘‘harms claimed . . . [were too] indirect,

remote and derivative with respect to the defendants’

conduct . . . .’’ Id., 353. Moreover, we observed that

one easily could identify several sets of potential plain-

tiffs who were more directly harmed by the defendants’

alleged misconduct than was the city: ‘‘[A]ll [of] the

homeowners in Bridgeport who have been deceived

by the defendants’ misleading advertising, all of the

persons who have been assaulted or killed by the misuse

of the handguns, and all of the families of the persons

who committed suicide using those handguns.’’ Id., 359.

In the present case, by contrast, the plaintiffs allege

that the defendants’ wrongful advertising magnified the

lethality of the Sandy Hook massacre by inspiring Lanza

or causing him to select a more efficiently deadly

weapon for his attack. Proving such a causal link at

trial may prove to be a Herculean task.29 But if it can

be proven—and the posture in which this case reaches

us requires that we assume it can30—the link between

the allegedly wrongful conduct and the plaintiffs’ injur-

ies would be far more direct and less attenuated than

in Ganim.

More fundamentally, in this case, unlike in Ganim,

it is the direct victims of gun violence who are challeng-

ing the defendants’ conduct; no private party is better

situated than the plaintiffs to bring the action. A claim

that a defendant’s advertisements unethically promote

illegal conduct is fundamentally different from one

alleging false or misleading advertising. The primary

harm associated with the latter is that a consumer will

rely to his or her detriment on the advertiser’s represen-

tations; it is in the misinformed purchase of the product

or service that the wrong becomes fully manifest. Actual

customers, then, typically will be the parties most

directly and adversely impacted by the alleged wrong.

The gravamen of a wrongful advertising claim, by

contrast, is that an advertisement models or encourages

illegal or unsafe behavior. In such instances, the imme-

diate victims are just as likely to be third parties who

are not customers, whether it be individuals who engage

in inappropriate conduct inspired by the advertisements

or the direct victims of that conduct. For example, when

an especially racy sports car commercial disclaims,

‘‘professional driver, closed course, do not attempt this

at home,’’ the perceived risk is not merely—or even

primarily—that viewers will purchase that particular

vehicle and drive it unsafely as a result of the commer-

cial. Of at least equal concern is the possibility that

noncustomer viewers will emulate the commercial

when driving their own vehicles, violating motor vehicle

laws, and possibly causing injury to themselves or oth-

ers, including passengers or pedestrians.

In the present case, the wrong charged is that the

defendants promoted the use of their civilian assault

rifles for offensive, military style attack missions. The

most directly foreseeable harm associated with such

advertising is that innocent third parties could be shot

as a result. The decedents are the ones who got shot.

If the defendants’ marketing materials did in fact

inspire or intensify the massacre, then there are no

more direct victims than these plaintiffs; nor is there

any customer of the defendants with a better claim to

standing. That is to say, if these plaintiffs cannot test

the legality of the defendants’ advertisements pursuant

to § 42-110g, then no one can. For these reasons, we

conclude that the trial court improperly determined

that the plaintiffs lack standing to assert wrongful death

claims predicated on the defendants’ alleged CUTPA

violations.

B

Statute of Limitations

Having concluded that the plaintiffs have standing to

bring the present action, we must turn our attention to

whether the judgment of the trial court dismissing the

plaintiffs’ action may be affirmed on an alternative

ground. Although its determination that the plaintiffs

lacked standing to bring wrongful death claims predi-

cated on alleged CUTPA violations disposed of the case

before it, the trial court considered, in the interest of

completeness, the defendants’ arguments regarding the

legal sufficiency of the plaintiffs’ CUTPA claims. We

first consider the defendants’ argument that the plain-

tiffs’ claims are time barred because they did not comply

with CUTPA’s three year statute of limitations.

1

Procedural History

The following additional procedural history is rele-

vant to this claim. The complaint alleges that Lanza’s

mother purchased the rifle in question in March, 2010,

and that it was manufactured and distributed sometime

prior to that date. Lanza carried out the Sandy Hook

massacre on December 14, 2012, on which date all of the

decedents died. The plaintiffs delivered their summons

and complaint to a state marshal on December 13, 2014.

The defendants moved to strike the plaintiffs’ wrong-

ful death claims on the theory that those claims are

predicated on underlying CUTPA violations and that

private actions brought pursuant to CUTPA are subject

to a three year statute of limitations. See General Stat-

utes § 42-110g (f).31 They argued that, because all of the

relevant transfers of the rifle occurred no later than

March, 2010, and because the present action was not

initiated until more than four years later, in December,

2014, the plaintiffs’ CUTPA claims are time barred.

The trial court, like the defendants, proceeded on the

theory that the date of the alleged CUTPA violations

was, at the very latest, March, 2010, when the Riverview

defendants sold the rifle to Lanza’s mother. The court

was not persuaded, however, that CUTPA is the control-

ling statute of limitations for purposes of the present

action. Rather, the court emphasized that, although the

plaintiffs’ claims were predicated on a theory of liability

sounding in unfair trade practices, those claims were

brought pursuant to § 52-555, the wrongful death stat-

ute. That statute has its own statute of limitations,

which requires that a wrongful death action ‘‘be brought

. . . within two years from the date of death,’’ and its

own statute of repose, which requires that a wrongful

death action ‘‘be brought [no] more than five years from

the date of the act or omission complained of.’’ General

Statutes § 52-555 (a). Because process was served

within two years of the date of the decedents’ deaths

and within five years of the date on which the rifle was

sold, the court concluded that the action would not be

time barred if the statute of limitations contained in

§ 52-555 (a) controls.

The trial court therefore sought to resolve the appar-

ent conflict between the statutes of limitations con-

tained in §§ 42-110g (f) and 52-555 (a). Relying on the

decision of the Appellate Court in Pellecchia v. Connect-

icut Light & Power Co., 139 Conn. App. 88, 90, 54 A.3d

658 (2012) (adopting trial court’s memorandum of deci-

sion in Pellecchia v. Connecticut Light & Power Co.,

52 Conn. Supp. 435, 54 A.3d 1080 [2011]), cert. denied,

307 Conn. 950, 60 A.3d 740 (2013), the trial court con-

cluded that, when a wrongful death claim is predicated

on an underlying theory of liability that is subject to

its own statute of limitations, it is the wrongful death

statute of limitations that controls. Because the court

concluded that the CUTPA statute of limitations did

not apply, and because the action was brought within

two years of the decedents’ deaths and within five years

of the initial sale of the rifle, the court also concluded

that the plaintiffs’ wrongful death claims were timely.

Accordingly, the court did not have reason to consider

whether the plaintiffs’ claims predicated on a wrongful

advertising theory of liability, which could be premised

on conduct postdating the sale of the rifle, were timely.

2

Legal Principles

Turning to the governing legal principles, we first

consider whether the trial court correctly determined

that, when a wrongful death claim is predicated on an

underlying theory of liability that is subject to its own

statute of limitations, the plaintiffs need only satisfy

the statute of limitations contained in § 52-555 (a). The

trial court was correct that, in the ordinary case, § 52-

555 (a) supplies the controlling statute of limitations

regardless of the underlying theory of liability. This

court applied that rule in Giambozi v. Peters, 127 Conn.

380, 16 A.2d 833 (1940), overruled in part on other

grounds by Foran v. Carangelo, 153 Conn. 356, 216 A.2d

638 (1966), in which the court held that the statute of

limitations of the predecessor wrongful death statute,

rather than the limitations provision applicable to medi-

cal malpractice claims, governed in a wrongful death

action based on malpractice. Id., 385; see also Ecker v.

West Hartford, 205 Conn. 219, 245, 530 A.2d 1056 (1987)

(suggesting that statute of limitations contained in § 52-

555 may control in wrongful death actions predicated

on contract and warranty theories of liability). The legis-

lative history of the 1991 amendments to the wrongful

death statute reflecting the current statutory language;

Public Acts 1991, No. 91-238, § 1; makes clear that

Giambozi continues to accurately reflect the intent of

the legislature in this respect. See 34 H.R. Proc., Pt.

14, 1991 Sess., pp. 5170–72, remarks of Representative

Michael P. Lawlor (expressing view that there would

be cases in which plaintiffs would be able to maintain

wrongful death action under 1991 amendment to § 52-

555 even though statute of limitations applicable to

underlying medical malpractice would have run).

As the defendants emphasize, however, it is well

established that different rules apply to statutes, such

as CUTPA, that create a right of action that did not

exist at common law. See Greco v. United Technologies

Corp., 277 Conn. 337, 345 n.12, 890 A.2d 1269 (2006).

For such statutes, we have said that the limitations

provision ‘‘embodies an essential element of the cause

of action created—a condition attached to the right to

sue at all. The liability and the remedy are created by

the same statutes, and the limitations of the remedy

are, therefore, to be treated as limitations of the right.

. . . It follows that the statutory provision or provisions

prescribing the limitation must be strictly observed if

liability is to attach to the claimed offender. Failure to

show such observance results in a failure to show the

existence of a good cause of action.’’ (Internal quotation

marks omitted.) Blakely v. Danbury Hospital, 323

Conn. 741, 748–49, 150 A.3d 1109 (2016); see also id.,

749 (time limitation is ‘‘essential and integral’’ to exis-

tence of cause of action); Avon Meadow Condominium

Assn., Inc. v. Bank of Boston Connecticut, 50 Conn.

App. 688, 699–700, 719 A.2d 66 (time limitation that is

contained within statute that creates right of action that

did not exist at common law is limitation of liability

itself, and, accordingly, CUTPA statute of limitations is

jurisdictional), cert. denied, 247 Conn. 946, 723 A.2d

320 (1998), and cert. denied, 247 Conn. 946, 723 A.2d

320 (1998).

The plaintiffs respond that, regardless of whether the

statute of limitations contained in § 42-110g (f) amounts

to an essential element of a CUTPA cause of action, it

need not be satisfied in the present case because this

is not a CUTPA action. Rather, their claims are wrongful

death claims, for which CUTPA merely provides the

underlying theory of wrongfulness.

That argument, although perhaps facially attractive,

is precluded by a long line of cases holding that Con-

necticut’s wrongful death statute does not create a new

cause of action, independent of any claims that the

decedent might have had during his or her life. Rather,

the wrongful death statute merely allows the adminis-

trator of an estate to append to an already valid claim

an additional element of damages consisting of costs

associated with the decedent’s death. See, e.g., Sand-

erson v. Steve Snyder Enterprises, Inc., 196 Conn. 134,

149, 491 A.2d 389 (1985); Foran v. Carangelo, supra,

153 Conn. 360; Shaker v. Shaker, 129 Conn. 518, 520–21,

29 A.2d 765 (1942); see also Kling v. Torello, 87 Conn.

301, 305–306, 87 A. 987 (1913). A necessary consequence

of this principle is that a cause of action for wrongful

death predicated on a CUTPA violation will lie only

insofar as the decedent, had he or she survived, could

have satisfied all of the essential elements of the CUTPA

claim. See, e.g., Roque v. United States, 676 F. Supp.

2d 36, 42 (D. Conn. 2009) (plaintiff must prove elements

of negligence claim in wrongful death action predicated

on negligence); Nolan v. Morelli, 154 Conn. 432, 435, 226

A.2d 383 (1967) (plaintiff must establish that decedent

could recover damages under Dram Shop Act in wrong-

ful death action predicated on that statute); see also

Schwarder v. United States, 974 F.2d 1118, 1129 (9th

Cir. 1992) (Alarcon, J., concurring in part and dissenting

in part) (‘‘[a] majority of the state courts that have

considered the question have held that a survivor can-

not bring a wrongful death action if the decedent was

barred from [bringing a claim for his injuries] in his

lifetime, because the wrongful death claim is essentially

derivative of the injury to the decedent’’); W. Keeton

et al., Prosser and Keeton on the Law of Torts (5th Ed.

1984) § 127, p. 955 (‘‘[t]he wrongful death action for

the benefit of survivors is, like other actions based on

injuries to others, derivative in nature, arising out of

and dependent [on] the wrong done to the injured per-

son and thus barred when his claim would be barred’’

[footnote omitted]). It is clear, then, that the plaintiffs’

wrongful death claims must comply not only with the

statute of limitations that governs wrongful death

actions but also with CUTPA’s statute of limitations.

Accordingly, because it is undisputed that the manufac-

ture, distribution, and final sale of the rifle to Lanza’s

mother all occurred at least three years prior to the

commencement of the present action, we conclude that

the trial court should have struck as time barred the

plaintiffs’ wrongful death claims predicated on a theory

that any sale to the civilian market of military style

assault weapons such as the AR-15 represents an unfair

trade practice. Cf. footnote 14 of this opinion.

That determination, however, is not fatal to all of the

plaintiffs’ claims. As we discussed, the plaintiffs also

pleaded, in the alternative, that the defendants violated

CUTPA by advertising and marketing the XM15-E2S in

an unethical, oppressive, immoral, and unscrupulous

manner. Although the complaint does not specifically

allege on what dates or over what period of time such

marketing activities occurred, most of the plaintiffs’

wrongful marketing claims are phrased in the present

tense and, therefore, may be understood to allege that

those activities continued through the time the com-

plaint was filed. In addition, the plaintiffs’ allegation

that Lanza selected the XM15-E2S on the morning of

the assault ‘‘because of its marketed association with

the military’’ reasonably could be interpreted to mean

that such marketing schemes remained in place at the

time of the massacre, during the limitation period.

Accordingly, because we are compelled to construe the

complaint liberally, in the manner most favorable to

sustaining its legal sufficiency, we conclude that, for

present purposes, the plaintiffs’ wrongful advertising

theory is not barred by CUTPA’s statute of limitations.32

C

Connecticut Product Liability Act Preemption

We next consider whether the trial court correctly

determined that § 52-572n (a), the exclusivity provision

of the Product Liability Act, does not bar the plaintiffs’

CUTPA claims. Section 52-572n (a) provides that ‘‘[a]

product liability claim as provided in [the Product Lia-

bility Act] may be asserted and shall be in lieu of all

other claims against product sellers, including actions

of negligence, strict liability and warranty, for harm

caused by a product.’’ The defendants contend that all

of the plaintiffs’ CUTPA claims ultimately boil down

to the argument that the XM15-E2S is unreasonably

dangerous for sale to the civilian market and, therefore,

that manufacturers and distributors of that weapon

should be held strictly liable for any injuries resulting

from its misuse. They contend that this is ‘‘nothing more

than a [P]roduct [L]iability [A]ct claim dressed in the

robes of CUTPA’’; Gerrity v. R.J. Reynolds Tobacco

Co., 263 Conn. 120, 129, 818 A.2d 769 (2003); and that,

pursuant to § 52-572n (a), the Product Liability Act pro-

vides the exclusive remedy. We are not persuaded.

As we have explained, the plaintiffs’ wrongful death

claims are predicated on two distinct theories of unfair

trade practice: (1) the sale of assault rifles such as the

XM15-E2S to the civilian market is inherently unreason-

able and dangerous; and (2) the defendants marketed

and promoted the XM15-E2S in an unethical, oppres-

sive, immoral, and unscrupulous manner. The defen-

dants’ primary argument with respect to the Product

Liability Act relates to the plaintiffs’ first theory of liabil-

ity. Because we have concluded that claims predicated

on the plaintiffs’ first CUTPA based theory of liability

are time barred, however, we need not determine

whether those claims also are precluded by § 52-572n

(a). Cf. footnote 14 of this opinion.

With respect to the plaintiffs’ second theory of liabil-

ity, the defendants fail to offer any explanation as to

why the allegation that they wrongfully marketed the

XM15-E2S by promoting the gun’s use for illegal pur-

poses—offensive, military style assault missions—

amounts to a product defect claim.33 There is no allega-

tion in the present case, for example, that the marketing

for the XM15-E2S contained inadequate warnings that

made the weapon unreasonably dangerous.

The defendants’ sole argument in this regard is their

contention that, in Merrill v. Navegar, Inc., supra, 26

Cal. 4th 465, the California Supreme Court rejected

allegations of wrongful firearms marketing as disguised

product liability claims. We read Merrill differently. It

is true that the California Supreme Court concluded

that many of the negligent marketing and distribution

claims at issue in that case were barred by a California

statute that provided that a gun manufacturer may not

be held liable in a product liability action on the basis

that the benefits of its product fail to outweigh the

product’s risk of injury when discharged. Id., 470; see

Cal. Civ. Code § 1714.4 (a) (Deering 1994) (repealed in

2002). But the claims in Merrill, while dressed in terms

of negligent marketing and distribution, were substan-

tially similar to the claims of the plaintiffs in the present

case, namely, that the sale of assault weapons to the

civilian market is inherently unreasonable because

those weapons have no legitimate civilian purpose. See

Merrill v. Navegar, Inc., supra, 470, 480–81.

The only claims at issue in Merrill that were akin to

the plaintiffs’ immoral advertising claims were their

allegations that Navegar, Inc. (Navegar), a gun manufac-

turer, advertised its semiautomatic assault pistols ‘‘as

tough as your toughest customer’’ and as featuring

‘‘excellent resistance to finger prints,’’ which might have

suggested that the weapons were especially well suited

for criminal use. (Internal quotation marks omitted.)

Id., 471. In holding that the trial court had properly

granted Navegar’s motion for summary judgment with

respect to those ‘‘more inflammatory aspects of Naveg-

ar’s advertising’’; id., 489; however, the California

Supreme Court relied not on the immunity provision

in California’s product liability statute but, rather, on

the facts that (1) the plaintiffs in Merrill expressly disa-

vowed any claims based on the specific content of

Navegar’s advertising; id., 474, 487–88; and (2) there

was no evidence that the shooter in that case ever had

seen, let alone had been inspired by, any of Navegar’s

allegedly inappropriate promotional materials. Id., 471,

473, 488–91. Accordingly, we do not read Merrill as

supporting the defendants’ contention that the 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 repre-

sent veiled product liability claims. Accordingly, we

conclude that those claims are not precluded by § 52-

572n (a). See Gerrity v. R.J. Reynolds Tobacco Co.,

supra, 263 Conn. 124, 128 (analyzing language of exclu-

sivity provision and concluding that claim that tobacco

companies violated CUTPA by targeting minors with

their cigarette advertising did not allege product defect

and, therefore, was not precluded by Product Liabil-

ity Act).

D

CUTPA Personal Injury Damages

We next consider the defendants’ argument that per-

sonal injuries resulting in death do not give rise to

cognizable damages for purposes of CUTPA.34 As we

explained, an action for wrongful death will lie only if

the deceased, had he or she survived, would have had

a valid claim for the injuries that resulted in death. See

part IV B of this opinion. For that reason, the plaintiffs

can prevail on their CUTPA based wrongful death

claims only if CUTPA permits the recovery of damages

for the decedents’ injuries. As a matter of first impres-

sion, we hold that CUTPA permits recovery for personal

injuries that result directly from wrongful advertising

practices.35

Whether personal injuries give rise to cognizable

CUTPA damages presents a question of statutory inter-

pretation. We begin by setting forth the relevant statu-

tory language. Subsection (a) of § 42-110g contains two

clauses potentially relevant to the issue before us. First,

subsection (a) creates a private right of action for ‘‘[a]ny

person who suffers any ascertainable loss of money or

property, real or personal, as a result of the use or

employment of a method, act or practice prohibited by

section 42-110b . . . .’’ This provision is known as the

ascertainable loss clause. Second, subsection (a) pro-

vides that any person so injured ‘‘may bring an action

. . . to recover actual damages.’’ This provision of sub-

section (a) is known as the actual damages clause.

The view of the plaintiffs is that these two clauses

serve distinct, independent functions within the statute

and that only the actual damages clause restricts the

types of damages that are available. Specifically, they

contend that, although one must suffer some ascertain-

able loss of money or property in order to have standing

to bring a CUTPA action, once the standing require-

ments set by the ascertainable loss clause have been

satisfied, a successful plaintiff may recover not only for

those financial losses but for any and all actual dam-

ages. Relying on DiNapoli v. Cooke, 43 Conn. App. 419,

427, 682 A.2d 603, cert. denied, 239 Conn. 951, 686 A.2d

124 (1996), cert. denied, 520 U.S. 1213, 117 S. Ct. 1699,

137 L. Ed. 2d 825 (1997), the plaintiffs further contend

that the term ‘‘actual damages’’ is synonymous with

compensatory or general damages and excludes only

special damages such as nominal and punitive damages.

Certainly, they contend, that term is sufficiently expan-

sive to encompass personal injuries.

The defendants, by contrast, argue that the ascertain-

able loss clause modifies and cabins the meaning of

the actual damages clause. In their view, the fact that

a plaintiff must have suffered some manner of financial

loss to bring a CUTPA action implies that the legislature

intended to limit recovery to damages of that sort. Inso-

far as both of these interpretations of the statutory

language are facially plausible,36 we conclude that the

statute is ambiguous and that we may properly look

to extratextual sources to ascertain the intent of the

legislature. See General Statutes § 1-2z.

The legislative histories of CUTPA and of the model

legislation on which CUTPA is based are largely silent

with respect to the question of personal injury damages.

R. Langer et al., 12 Connecticut Practice Series: Con-

necticut Unfair Trade Practices, Business Torts and

Antitrust (2018–19 Ed.) § 6.7, pp. 849, 851. Nevertheless,

four considerations persuade us that the legislature did

not intend to bar plaintiffs from recovering for personal

injuries resulting from unfair trade practices, at least

under circumstances such as those presented here.

First, although both the plaintiffs’ and the defendants’

interpretations of the statutory language are facially

plausible, the plaintiffs’ reading of § 42-110g (a) is more

reasonable. While the term ‘‘actual damages’’ is not

defined in CUTPA, the term is used in other statutes in

such a manner as to leave no doubt that actual damages

include personal injuries. For example, General Stat-

utes § 53-452 (a) provides in relevant part that ‘‘[a]ny

person whose property or person is injured by [a com-

puter crime committed in violation of] section 53-451

may bring a civil action in the Superior Court to enjoin

further violations and to recover the actual damages

sustained by reason of such violation . . . .’’ (Empha-

sis added.)

In addition, the plaintiffs’ interpretation of the statute

better comports with our analysis in Hinchliffe v. Amer-

ican Motors Corp., supra, 184 Conn. 612–20. In that

case, we considered the closely related question of

whether the ‘‘ascertainable loss’’ requirement means

that a CUTPA plaintiff must be able to prove that he

or she has suffered actual damages in a particular

amount. Id., 612–13. We rejected that reading of the

statute, concluding that the ascertainable loss and

actual damage clauses of § 42-110g (a) serve distinct

purposes and that the legislature did not intend the

term ‘‘ascertainable’’ to modify ‘‘actual damages.’’ Id.,

613–15. We also cited favorably the view of one legal

scholar that ‘‘the only function served by a threshold

‘loss’ requirement in a consumer protection statute is

to guard against vicarious suits by self-constituted attor-

neys general when they spot an apparently deceptive

advertisement in the newspaper, on television or in a

store window.’’ Id., 615 n.6, citing D. Rice, ‘‘New Private

Remedies for Consumers: The Amendment of Chapter

93A,’’ 54 Mass. L.Q. 307, 314 (1969). That view, if correct,

strongly supports the conclusion that the presence of

the ascertainable loss clause in the statute in no way

restricts the damages that are available to plaintiffs who

have been directly and personally injured by an unfair

trade practice.

Second, we frequently have remarked that ‘‘CUTPA’s

coverage is broad and its purpose remedial.’’ (Internal

quotation marks omitted.) Cheshire Mortgage Service,

Inc. v. Montes, 223 Conn. 80, 113–14, 612 A.2d 1130

(1992); see also 12 R. Langer et al., supra, § 2.5, p. 81.

As we explained in part IV A of this opinion, whereas

unfair trade practices such as false advertising and

other forms of commercial deception tend to result

primarily in financial harm, a principal evil associated

with unethical and unscrupulous advertising is that

viewers or innocent third parties will be physically

injured as a result of dangerous or illegal conduct

depicted in the advertisements. See, e.g., Lorillard

Tobacco Co. v. Reilly, 533 U.S. 525, 556–61, 121 S. Ct.

2404, 150 L. Ed. 2d 532 (2001). That is precisely what

the plaintiffs in the present case allege. If personal injur-

ies are not recoverable under those circumstances, then

no recovery will be available for a substantial category

of unfair trade practices, and the threat of private litiga-

tion will not serve as a deterrent to such conduct. That

outcome would be inconsistent with the stated intent of

the legislature to provide broad protection from unfair

trade practices and to incentivize private enforcement

of the law.

Third, it is well established that the legislature

intended that Federal Trade Commission (FTC) rulings

and cases decided under the Federal Trade Commission

Act (FTC Act), 15 U.S.C. § 41 et seq. (2012 and Supp.

V 2017), would ‘‘serve as a lodestar’’ for interpreting

CUTPA’s open-ended language.37 Russell v. Dean Witter

Reynolds, Inc., 200 Conn. 172, 179, 510 A.2d 972 (1986).38

Notably, the FTC itself has construed the FTC Act as

prohibiting practices that are physically dangerous to

consumers. See J. Beales III, ‘‘Advertising to Kids and

the FTC: A Regulatory Retrospective That Advises the

Present,’’ 12 Geo. Mason L. Rev. 873, 876 (2004). In In

re International Harvester Co., 104 F.T.C. 949, 1088

(1984), for example, the FTC held that a manufacturer’s

failure to disclose safety risks associated with fuel gey-

sering in its tractors represented an unfair trade prac-

tice that violated the FTC Act. In reaching this

conclusion, the FTC relied on the fact that fuel gey-

sering is a hazard that creates a substantial risk of injury

or death: ‘‘There clearly has been serious consumer

injury. At least one person has been killed and eleven

others burned. . . . Many of the burn injuries have

been major ones, moreover, resulting in mobility limita-

tions, lasting psychological harm, and severe disfigure-

ment. . . . These injuries are of a kind that satisfies

the . . . unfairness test. It is true that they involve

physical rather than economic injury, but the

[u]nfairness [s]tatement reaches such matters.’’ (Cita-

tions omitted.) Id., 1064; see also In re LabMD, Inc.,

Docket No. 9357, 2016 WL 521327, *12 (F.T.C. January

14, 2016) (‘‘unquantifiable health and safety risks’’ can

give rise to unfair trade practice injuries).

Of particular relevance to the present action, the FTC

has, on multiple occasions, found violations of the FTC

Act when companies have advertised or promoted their

products in a manner that is likely to result in physical

injury, even in the absence of product sales. For exam-

ple, the FTC has required companies to refrain from

advertising that depicts young children operating bicy-

cles and tricycles in an unsafe or unlawful manner; In

re AMF, Inc., 95 F.T.C. 310, 313–14 (1980); advertising

the use of electric hairdryers by children in close prox-

imity to a filled bathroom sink; In re Mego Interna-

tional, Inc., 92 F.T.C. 186, 189–90 (1978); and adver-

tising that depicts children attempting to cook food

without close adult supervision; In re Uncle Ben’s, Inc.,

89 F.T.C. 131, 136 (1977); as well as promotional give-

aways that expose young children to unguarded razor

blades. In re Philip Morris, Inc., 82 F.T.C. 16, 19 (1973).

The FTC concluded that such marketing activities had

the tendency to induce behavior that involves an unrea-

sonable risk of harm to person or property and, there-

fore, constituted unfair trade practices.

In 1997, Federal Trade Commissioner Roscoe B.

Starek III underscored the FTC’s interest in combat-

ing unfair trade practices that may result in physical

injuries to children: ‘‘Although injury must be both sub-

stantial and likely’’ to draw the FTC’s attention, ‘‘unwar-

ranted health or safety risks can suffice.’’ R. Starek

III, ‘‘The ABCs at the FTC: Marketing and Advertis-

ing to Children,’’ Address at the Minnesota Institute

of Legal Education (July 25, 1997), available at

https://www.ftc.gov/public-statements/1997/07/abcs-

ftc-marketing-and-advertising-children (last visited

March 8, 2019). More recently, the FTC has taken an

interest in the marketing of violent movies, songs, and

video games to children. See, e.g., Federal Trade Com-

mission, Report to Congress, ‘‘Marketing Violent Enter-

tainment to Children: A Sixth Follow-up Review of

Industry Practices in the Motion Picture, Music

Recording & Electronic Game Industries (December,

2009), available at 2009 WL 5427633. It is clear, then,

that wrongful advertising that poses a genuine risk of

physical harm falls under the broad purview of the FTC

Act and, by incorporation, CUTPA.

Fourth, we observe that courts in several of our sister

states have concluded that victims of unfair trade prac-

tices may recover for personal injuries. See, e.g., Pope

v. Rollins Protective Services Co., 703 F.2d 197, 203 (5th

Cir. 1983) (applying Texas law); Maurer v. Cerkvenik-

Anderson Travel, Inc., 181 Ariz. 294, 297–98, 890 P.2d

69 (App. 1994); Maillet v. ATF-Davidson Co., 407 Mass.

185, 192, 552 N.E.2d 95 (1990). Although we recognize

that the statutory language at issue in those cases was

not identical to the language at issue in this case, we

nevertheless find it significant that sister courts have

understood personal injuries to fall within the scope of

the harms to which broadly worded consumer protec-

tion statutes are directed. In addition, we note that a

majority of Connecticut trial courts addressing the issue

have concluded that damages for personal injuries can

be recovered under CUTPA. 12 R. Langer et al., supra,

§ 6.7, p. 850. For all of these reasons, we conclude that,

at least with respect to wrongful advertising claims,

personal injuries alleged to have resulted directly from

such advertisements are cognizable under CUTPA.

V

WRONGFUL DEATH AND CUTPA:

ISSUES OF FEDERAL LAW

Having concluded that the plaintiffs have pleaded

legally cognizable CUTPA claims sounding in wrongful

marketing, we next consider whether the trial court

properly determined that PLCAA does not bar the plain-

tiffs’ wrongful death claims. Our review of the federal

statute persuades us that the trial court correctly con-

cluded that CUTPA, as applied to the plaintiffs’ allega-

tions, falls within one of PLCAA’s exceptions.

A

PLCAA Overview

PLCAA generally affords manufacturers and sellers

of firearms39 immunity from civil liability arising from

the criminal or unlawful use of their products by third

parties. 15 U.S.C. §§ 7902 (a) and 7903 (5) (A) (2012).40

Congress carved out six exceptions to this immunity,

pursuant to which firearms sellers may be held liable

for third-party crimes committed with their products.

See 15 U.S.C. § 7903 (5) (A) (2012). The exception at

issue in the present case, the predicate exception; see

footnote 12 of this opinion and accompanying text; per-

mits civil actions alleging that ‘‘a manufacturer or seller

of a [firearm] knowingly violated a State or Federal

statute applicable to the sale or marketing of the [fire-

arm], and the violation was a proximate cause of the

harm for which relief is sought . . . .’’ 15 U.S.C. § 7903

(5) (A) (iii) (2012). The question presented by this

appeal is whether CUTPA qualifies as such a predicate

statute, that is, a ‘‘statute applicable to the sale or mar-

keting of [firearms] . . . .’’ (Emphasis added.) 15

U.S.C. § 7903 (5) (A) (iii) (2012). The answer to this

question necessarily hinges on the meaning and scope

of the statutory term ‘‘applicable.’’ See Ileto v. Glock,

Inc., 565 F.3d 1126, 1133 (9th Cir. 2009), cert. denied,

560 U.S. 924, 130 S. Ct. 3320, 176 L. Ed. 2d 1219 (2010).

‘‘[W]e begin by setting forth the rules and principles

that govern our interpretation of federal law. With

respect to the construction and application of federal

statutes, principles of comity and consistency require

us to follow the plain meaning rule . . . .’’ (Internal

quotation marks omitted.) CCT Communications, Inc.

v. Zone Telecom, Inc., 327 Conn. 114, 140, 172 A.3d

1228 (2017). ‘‘Under the [federal] plain meaning rule,

[l]egislative history and other tools of interpretation

may be relied [on] only if the terms of the statute are

ambiguous.’’ (Internal quotation marks omitted.) Web-

ster Bank v. Oakley, 265 Conn. 539, 555, 830 A.2d 139

(2003), cert. denied, 541 U.S. 903, 124 S. Ct. 1603, 158

L. Ed. 2d 244 (2004). ‘‘If the text of a statute is ambigu-

ous, then we must construct an interpretation consis-

tent with the primary purpose of the statute as a whole.

. . . Thus, our interpretive process will begin by inquir-

ing whether the plain language of [the] statute, when

given its ordinary, common meaning . . . is ambigu-

ous.’’ (Citations omitted; internal quotation marks omit-

ted.) Id., 555–56. In assessing ambiguity, the meaning

of the statute must be evaluated not only by reference

to the language itself but also in the specific context

in which that language is used, as well as in the broader

context of the statute as a whole. New York v. Beretta

U.S.A. Corp., 524 F.3d 384, 400 (2d Cir. 2008), cert.

denied, 556 U.S. 1104, 129 S. Ct. 1579, 173 L. Ed. 2d

675 (2009).

B

The Plain Language of the Statute

Both the plaintiffs and the defendants contend that

the plain language of the predicate exception, read in

the context of the broader statute, unambiguously

favors their position. In this part of the opinion, we

explain why the plaintiffs’ interpretation of the statutory

language is plainly the more reasonable one. We con-

sider the text of the predicate exception itself, the

broader statutory framework, the congressional state-

ment of findings and purposes, and the defendants’

argument that treating CUTPA as a predicate statute

would lead to absurd results.

Although we agree with the plaintiffs that their read-

ing of the statutory language is the better one, we recog-

nize that the defendants’ interpretation is not implau-

sible. Therefore, in part V C of the opinion, we also

review various extrinsic sources of congressional intent

to resolve any ambiguities. Our review of both the statu-

tory language and these extrinsic sources persuades us

that Congress did not mean to preclude actions alleging

that firearms companies violated state consumer pro-

tection laws by promoting their weapons for illegal,

criminal purposes.

1

The Predicate Exception

When construing a federal law in which key terms

are undefined, we begin with the ordinary, dictionary

meaning of the statutory language. See, e.g., Maslenjak

v. United States, U.S. , 137 S. Ct. 1918, 1924,

198 L. Ed. 2d 460 (2017). Looking to dictionaries that

were in print around the time PLCAA was enacted,

we find that the principal definition of ‘‘applicable’’ is

simply ‘‘[c]apable of being applied . . . .’’ Black’s Law

Dictionary (10th Ed. 2014) p. 120; accord Webster’s

Third New International Dictionary (2002) p. 105.

If Congress had intended to create an exception to

PLCAA for actions alleging a violation of any law that

is capable of being applied to the sale and marketing

of firearms, then there is little doubt that state consumer

protection statutes such as CUTPA would qualify as

predicate statutes. CUTPA prohibits ‘‘unfair methods

of competition and unfair or deceptive acts or practices

in the conduct of any trade or commerce.’’ (Emphasis

added.) General Statutes § 42-110b (a). Accordingly, the

statute clearly is capable of being applied to the sale

and marketing of firearms. The only state appellate

court to have reviewed the predicate exception con-

strued it in this manner; see Smith & Wesson Corp. v.

Gary, 875 N.E.2d 422, 431, 434–35 and n.12 (Ind. App.

2007) (predicate exception unambiguously applies to

any state law capable of being applied to sale or market-

ing of firearms), transfer denied, 915 N.E. 978 (Ind.

2009).

It is true that secondary dictionary definitions of

‘‘applicable’’ might support a narrower reading of the

predicate exception. Webster’s Third New International

Dictionary, for example, also defines ‘‘applicable’’ as

‘‘fit, suitable, or right to be applied: appropriate . . .

relevant . . . .’’ Webster’s Third New International Dic-

tionary, supra, p. 105. Pursuant to such definitions, the

Ninth Circuit concluded, it would not be unreasonable

to read PLCAA to exempt only those state laws that

are exclusively relevant to the sale or marketing of

firearms. See Ileto v. Glock, Inc., supra, 565 F.3d 1134.

If Congress had intended to limit the scope of the

predicate exception to violations of statutes that are

directly, expressly, or exclusively applicable to fire-

arms, however, it easily could have used such language,

as it has on other occasions.41 The fact that the drafters

opted instead to use only the term ‘‘applicable,’’ which

is susceptible to a broad reading, further supports the

plaintiffs’ interpretation. See, e.g., Scholastic Book

Clubs, Inc. v. Commissioner of Revenue Services, 304

Conn. 204, 219, 38 A.3d 1183 (‘‘the legislature knows

how to . . . use broader or limiting terms when it

chooses to do so’’ [citation omitted]), cert. denied, 568

U.S. 940, 133 S. Ct. 425, 184 L. Ed. 2d 255 (2012).

2

The Statutory Framework

In construing the predicate exception, we also must

consider the broader statutory framework. The plain-

tiffs’ contention that CUTPA qualifies as a predicate

statute as applied to their wrongful marketing claims

finds additional support in the repeated statutory refer-

ences to laws that govern the marketing of firearms.

There is no doubt that statutes that govern the adver-

tising and marketing of firearms potentially qualify as

predicate statutes. The predicate exception expressly

provides that the ‘‘qualified civil liability actions’’ from

which firearms sellers are immune shall not include ‘‘an

action in which a manufacturer or seller of a [firearm]

knowingly violated a State or Federal statute applicable

to the sale or marketing of the [firearm] . . . .’’42

(Emphasis added.) 15 U.S.C. § 7903 (5) (A) (iii) (2012).

Importantly, however, at the time PLCAA was

enacted, no federal statutes directly or specifically regu-

lated the marketing or advertising of firearms. In addi-

tion, only a handful of states have enacted firearm

specific laws that address in any way the marketing

function, and none of those purports to comprehen-

sively regulate the advertising of firearms.43 It would

have made little sense for the drafters of the legislation

to carve out an exception for violations of laws applica-

ble to the marketing of firearms if no such laws existed.44

If Congress intended the predicate exception to

encompass laws that prohibit the wrongful marketing

of firearms, and if no laws expressly and directly do

so, then the only logical reading of the statute is that

Congress had some other type of law in mind. What

type? At both the federal and state levels, false, decep-

tive, and other forms of wrongful advertising are regu-

lated principally through unfair trade practice laws such

as the FTC Act and its state analogues.45 We must pre-

sume that Congress was aware, when it enacted PLCAA,

that both the FTC Act and state analogues such as

CUTPA have long been among the primary vehicles for

litigating claims that sellers of potentially dangerous

products such as firearms have marketed those prod-

ucts in an unsafe and unscrupulous manner. See Good-

year Atomic Corp. v. Miller, 486 U.S. 174, 185, 108 S.

Ct. 1704, 100 L. Ed. 2d 158 (1988) (Congress is presump-

tively knowledgeable about pertinent federal and state

law). CUTPA, for example, has long been construed to

incorporate the FTC’s traditional ‘‘cigarette rule,’’ which

prohibits as unfair advertising that is, among other

things, ‘‘immoral, unethical, oppressive and unscrupu-

lous.’’46 Ivey, Barnum&O’Mara v. Indian Harbor Prop-

erties, Inc., 190 Conn. 528, 539 and n.13, 461 A.2d

1369 (1983).

Reading the predicate exception to encompass

actions brought to remedy illegal and unscrupulous

marketing practices under state consumer protection

laws is consistent with the approach followed by the

United States Court of Appeals for the Second Circuit,

whose decisions ‘‘carry particularly persuasive weight

in the interpretation of federal statutes by Connecticut

state courts.’’ (Internal quotation marks omitted.) CCT

Communications, Inc. v. Zone Telecom, Inc., supra,

327 Conn. 140. In New York v. Beretta U.S.A. Corp.,

supra, 524 F.3d 384, the Second Circuit considered

whether PLCAA barred the municipal plaintiffs’ action

alleging that distribution practices of the defendant fire-

arms manufactures and sellers violated a New York

criminal nuisance statute; see N.Y. Penal Law § 240.45

(McKinney 2008); by marketing guns to legitimate buy-

ers with the knowledge that those guns will be diverted

into illegal markets. See New York v. Beretta U.S.A.

Corp., supra, 389–90. The court concluded that the

action should have been dismissed because the nui-

sance statute was a law of general applicability that

had never been applied to the firearms trade and simply

did not ‘‘encompass the conduct of firearms manufac-

turers of which the [municipal plaintiffs] complain[ed].’’

Id., 400. Notably, in reaching that conclusion, the Sec-

ond Circuit held that the predicate exception encom-

passes not only laws that expressly regulate commerce

in firearms but also those that ‘‘clearly can be said to

implicate the purchase and sale of firearms,’’ as well

as laws of general applicability that ‘‘courts have applied

to the sale and marketing of firearms . . . .’’47 Id., 404.

CUTPA falls squarely into both of these categories.

Statutes such as the FTC Act and state analogues

that prohibit the wrongful marketing of dangerous con-

sumer products such as firearms represent precisely the

types of statutes that implicate and have been applied

to the sale and marketing of firearms. In the early 1970s,

for example, the FTC entered into consent decrees with

three firearms sellers relating to allegations that they

had precluded their dealers from advertising their guns

at lower than established retail prices.48 A few years

later, the FTC ordered Emdeko International, Inc., a

marketing company, to refrain from predatory and mis-

leading advertising regarding various consumer prod-

ucts, including firearms. See In re National House-

wares, Inc., 90 F.T.C. 512, 580–81 (1977).

CUTPA also has been applied to the sale of firearms.

For example, in Salomonson v. Billistics, Inc., Superior

Court, Judicial District of New London, Docket No. CV-

88-508292 (September 27, 1991), the plaintiff prevailed

on his claim that the defendant gun dealer’s sales prac-

tices relating to the sale of a Ruger pistol and three

remanufactured semiautomatic rifles violated CUTPA.49

Id. The court specifically found that the defendant’s

conduct was ‘‘oppressive’’ and, therefore, violated the

second prong of the cigarette rule, the same standard

at issue in the present case. Id.

Equally important, regulation of firearms advertising

in our sister states frequently has been accomplished

under the auspices of state consumer protection and

unfair trade practice laws.50 It is clear, therefore, that

consumer protection statutes such as CUTPA long have

been an established mechanism for regulating the mar-

keting and advertising schemes of firearms vendors.

The FTC Act and its various state analogues also have

been applied in numerous instances to the wrongful

marketing of other potentially dangerous consumer

products, especially with respect to advertisements that

promote unsafe or illegal conduct.51 See S. Calkins,

‘‘FTC Unfairness: An Essay,’’ 46 Wayne L. Rev. 1935,

1962, 1974 (2000). Although Congress temporarily cur-

tailed the FTC’s authority to regulate unfair commercial

advertising in 1980, that authority was reinstated in

1994. Id., 1954–55.

Subsequently, just a few years before Congress began

considering predecessor legislation to PLCAA, the FTC

entered into a new consent decree addressing wrongful

advertising. In In re Beck’s North America, Inc., Docket

No. C-3859, 1999 FTC LEXIS 40 (F.T.C. March 25, 1999),

the commission prohibited the publication of advertise-

ments that portrayed young adult passengers consum-

ing alcohol while sailing, in a manner that was unsafe

and depicted activities that ‘‘may also violate federal

and state boating safety laws.’’ Id., *2. The consent

decree prohibited the ‘‘future dissemination . . . of

any . . . advertisement that . . . depicts activities

that would violate [federal laws that make] it illegal to

operate a vessel under the influence of alcohol or illegal

drugs.’’ (Citations omitted.) In re Beck’s North America,

Inc., File No. 982-3092, 1998 FTC LEXIS 83, *15–16

(F.T.C. August 6, 1998). More generally, the FTC cau-

tioned that it ‘‘ha[d] substantial concern about advertis-

ing that depicts conduct that poses a high risk to health

and safety. As a result, the [FTC] will closely scrutinize

such advertisements in the future.’’ Id., *15.52

Because Congress clearly intended that laws govern-

ing the marketing of firearms would qualify as predicate

statutes, and because Congress is presumed to be aware

that the wrongful marketing of dangerous items such

as firearms for unsafe or illegal purposes traditionally

has been and continues to be regulated primarily by

consumer protection and unfair trade practice laws

rather than by firearms specific statutes, we conclude

that the most reasonable reading of the statutory frame-

work, in light of the decision of the Second Circuit in

New York v. Beretta U.S.A. Corp., supra, 524 F.3d 384,

is that laws such as CUTPA qualify as predicate statutes,

insofar as they apply to wrongful advertising claims.53

3

The Statement of Findings and Purposes

When it drafted PLCAA, Congress included a state-

ment of findings and purposes. See 15 U.S.C. § 7901

(2012). In his dissenting opinion, Justice Robinson reads

this statement to support the position of the defendants.

On balance, however, we conclude, for the following

reasons, that the congressional findings and purposes

also lend support to the plaintiffs’ interpretation of

the statute.

First, Title 15 of the 2012 edition of the United States

Code, § 7901 (a) (4), provides that ‘‘[t]he manufacture,

importation, possession, sale, and use of firearms and

ammunition in the United States are heavily regulated

by Federal, State, and local laws . . . [s]uch [as] . . .

the Gun Control Act of 1968, the National Firearms Act

. . . and the Arms Export Control Act . . . .’’ (Cita-

tions omitted; emphasis added.) Notably, this provision,

which expressly references various firearms specific

laws, makes no mention of the marketing function. By

contrast, the very next finding expressly references the

‘‘lawful . . . marketing . . . of firearms . . . .’’54 15

U.S.C. § 7901 (a) (5) (2012). Reading these two findings

in concert, it is clear that Congress chose not to abro-

gate the well established duty of firearms sellers to

market their wares legally and responsibly, even though

no federal laws specifically govern the marketing of

firearms.

Second, although the findings indicate that Congress

sought to immunize the firearms industry from liability

for third-party criminal conduct, they emphasize that

that immunity extended only to ‘‘harm that is solely

caused by others . . . .’’ (Emphasis added.) 15 U.S.C.

§ 7901 (a) (6) (2012); see also 15 U.S.C. § 7901 (b) (1)

(2012) (principal purpose of PLCAA is to prohibit

causes of action ‘‘for the harm solely caused by the

criminal or unlawful misuse of firearm products’’

[emphasis added]); Ileto v. Glock, Inc., supra, 565 F.3d

1158 (Berzon, J., concurring in part and dissenting in

part) (same). The statement of findings and purposes

further provides that the purpose of PLCAA is ‘‘[t]o

preserve a citizen’s access to a supply of firearms and

ammunition for all lawful purposes, including hunting,

self-defense, collecting, and competitive or recreational

shooting.’’ (Emphasis added.) 15 U.S.C. § 7901 (b) (2)

(2012). In the present case, the plaintiffs allege that the

defendants illegally marketed the XM15-E2S by promot-

ing its criminal use for offensive civilian assaults, and

that this wrongful advertising was a direct cause of the

Sandy Hook massacre. At no time and in no way does

the congressional statement indicate that firearm sell-

ers should evade liability for the injuries that result if

they promote the illegal use of their products.

Third, the findings make clear that Congress sought

to preclude only novel civil actions that are ‘‘based on

theories without foundation in hundreds of years of the

common law and jurisprudence of the United States

and do not represent a bona fide expansion of the com-

mon law,’’ recognition of which ‘‘would expand civil

liability in a manner never contemplated . . . by Con-

gress . . . or by the legislatures of the several States.’’

15 U.S.C. § 7901 (a) (7) (2012). As we previously dis-

cussed, however, it is well established that the FTC Act

and state analogues such as CUTPA not only govern the

marketing of firearms, but also prohibit advertisements

that promote or model the unsafe or illegal use of poten-

tially dangerous products. Accordingly, there is simply

no reason to think that the present action represents the

sort of novel civil action that Congress sought to bar.55

The dissent relies on one other provision of the state-

ment of findings and purposes that purportedly disquali-

fies CUTPA, as applied to the plaintiffs’ wrongful

marketing theory, as a potential predicate statute. Spe-

cifically, the statement emphasizes the importance of

preserving the rights enshrined in the second amend-

ment to the United States constitution. See 15 U.S.C.

§ 7901 (a) (1), (2) and (6) (2012).

There is no doubt that congressional supporters of

PLCAA were committed to Americans’ second amend-

ment freedoms and sought to secure those freedoms

by immunizing firearms companies from frivolous law-

suits. It is not at all clear, however, that the second

amendment’s protections even extend to the types of

quasi-military, semiautomatic assault rifles at issue in

the present case. See District of Columbia v. Heller,

554 U.S. 570, 627, 128 S. Ct. 2783, 171 L. Ed. 2d 637

(2008) (indicating that second amendment’s protection

does not extend to ‘‘ ‘dangerous and unusual weapons’ ’’

and, therefore, that M16s and related military style rifles

may be banned); Kolbe v. Hogan, 849 F.3d 114, 143 (4th

Cir.) (reading Heller to mean that second amendment

does not protect right to possess assault weapons fea-

turing high capacity magazines, such as AR-15), cert.

denied, U.S. , 138 S. Ct. 469, 199 L. Ed. 2d 374

(2017); New York State Rifle & Pistol Assn., Inc. v.

Cuomo, 804 F.3d 242, 257 (2d Cir. 2015) (assuming for

sake of argument that second amendment does apply

to semiautomatic assault weapons such as AR-15 but

upholding outright prohibitions against civilian owner-

ship of such weapons), cert. denied sub nom. Shew v.

Malloy, U.S. , 136 S. Ct. 2486, 195 L. Ed. 2d 822

(2016); see also Friedman v. Highland Park, 784 F.3d

406, 410–12 (7th Cir.), cert. denied, U.S. , 136 S.

Ct. 447, 193 L. Ed. 2d 483 (2015); Fyock v. Sunnyvale,

779 F.3d 991, 999 (9th Cir. 2015); Heller v. District of

Columbia, 670 F.3d 1244, 1261 (D.C. Cir. 2011). Accord-

ingly, we conclude that, on balance, PLCAA’s statement

of findings and purposes also bears out the plaintiffs’

interpretation of the statute, namely, that illegal market-

ing is not protected.56

4

Absurd Result

We next address the defendants’ argument that con-

struing a statute of general applicability such as CUTPA

to be a predicate statute would lead to an absurd result.

As one judge has articulated, ‘‘the predicate exception

cannot possibly encompass every statute that might be

‘capable of being applied’ to the sale or manufacture

of firearms; if it did, the exception would swallow the

rule, and no civil lawsuits would ever be subject to

dismissal under . . . PLCAA.’’ (Emphasis omitted.)

Ileto v. Glock, Inc., supra, 565 F.3d 1155 (Berzon, J.,

concurring in part and dissenting in part).

Of course, to surmount PLCAA immunity via the pred-

icate exception, there must be at least a colorable claim

that a defendant has, in fact, violated some statute,

resulting in harm to the plaintiff. Accordingly, Judge

Berzon’s argument appears to be predicated on the

assumptions that (1) most states have public nuisance

statutes or similar laws, such as the California nuisance

statutes at issue in Ileto, and (2) virtually any action

seeking to hold firearms sellers liable for third-party

gun violence could allege a colorable violation of those

statutes because the mere act of selling the weapons

involved might be deemed to create a public nuisance.

We will assume, without deciding, that Judge Berzon

is correct that, as a general matter, the predicate excep-

tion cannot be so expansive as to fully encompass laws

such as public nuisance statutes insofar as those laws

reasonably might be implicated in any civil action aris-

ing from gun violence.57 Although we believe that the

plaintiffs’ primary allegations—that any sale of assault

weapons to the civilian market constitutes an unfair

trade practice—would falter on this shoal, we need not

address that issue more fully in light of our determina-

tion that those allegations are time barred. See part IV

B of this opinion. What is clear, however, is that the

plaintiffs’ wrongful marketing allegations may proceed

without crippling PLCAA. Those claims allege only that

one specific family of firearms sellers advertised one

particular line of assault weapons in a uniquely unscru-

pulous manner, promoting their suitability for illegal,

offensive assaults. As we have stated throughout this

opinion, we do not know whether the plaintiffs will be

able to prove those allegations to a jury. But we are

confident that this sort of specific, narrowly framed

wrongful marketing claim alleges precisely the sort of

illegal conduct that Congress did not intend to immu-

nize. For this reason, CUTPA’s prohibition against such

conduct appears to fall squarely within the predicate

exception and does not lead to an absurd result.

C

Extrinsic Evidence of Congressional Intent

Other courts that have construed the predicate excep-

tion are divided as to whether the exception unambigu-

ously encompasses laws, such as CUTPA, that do not

expressly regulate firearms sales and marketing but are

nevertheless capable of being and have been applied

thereto. Compare Ileto v. Glock, Inc., supra, 565 F.3d

1133–35 (predicate exception is ambiguous), and New

York v. Beretta U.S.A. Corp., supra, 524 F.3d 401 (same),

with Smith & Wesson Corp. v. Gary, 875 N.E.2d 422,

431, 434 and n.12 (predicate exception unambiguously

applies), and New York v. Beretta U.S.A. Corp., supra,

405–407 (Katzmann, J., dissenting) (same). In part V B

of this opinion, we explained why the plain text of 15

U.S.C. § 7903 (5) (A) (iii) strongly suggests that CUTPA,

as applied to the plaintiffs’ claims, qualifies as a predi-

cate statute. In this part, we explain why extrinsic indi-

cia of congressional intent support the same conclu-

sion. These indicia include canons of statutory con-

struction, closely related legislation, and the legislative

history of PLCAA.

1

Canons of Statutory Construction

Under the law of the Second Circuit, if the plain

language of a statute is ambiguous, we then consider

whether any ambiguities may be resolved by the appli-

cation of canons of statutory construction and, failing

that, through review of the legislative history. E.g.,

United States v. Rowland, 826 F.3d 100, 108 (2d Cir.

2016), cert. denied, U.S. , 137 S. Ct. 1330, 197

L. Ed. 2d 517 (2017). In the present case, three canons

of construction are potentially relevant.

a

Clear Statement Requirement

We begin with the well established canon that a fed-

eral law is not to be construed to have superseded the

historic police powers of the states unless that was the

clearly expressed and manifest purpose of Congress.

E.g., Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516,

112 S. Ct. 2608, 120 L. Ed. 2d 407 (1992); Rice v. Santa

Fe Elevator Corp., 331 U.S. 218, 230, 67 S. Ct. 1146, 91

L. Ed. 1447 (1947); Federal Housing Finance Agency

v. Nomura Holding America, Inc., 873 F.3d 85, 112 n.30

(2d Cir. 2017), cert. denied, U.S. , 138 S. Ct. 2679,

201 L. Ed. 2d 1073 (2018), and cert. denied sub nom.

Findlay v. Federal Housing Finance Agency, U.S.

, 138 S. Ct. 2697, 201 L. Ed. 2d 1073 (2018). The

regulation of advertising that threatens the public

health, safety, and morals has long been considered a

core exercise of the states’ police powers. See, e.g.,

Altria Group, Inc. v. Good, 555 U.S. 70, 77, 129 S. Ct.

538, 172 L. Ed. 2d 398 (2008); Semler v. Oregon State

Board of Dental Examiners, 294 U.S. 608, 611–12, 55

S. Ct. 570, 79 L. Ed. 1086 (1935); Varney & Green v.

Williams, 155 Cal. 318, 321, 100 P. 867 (1909), overruled

in part on other grounds by Metromedia, Inc. v. San

Diego, 26 Cal. 3d 848, 610 P.2d 407, 164 Cal. Rptr. 510

(1980); State v. Certain Contraceptive Materials, 7

Conn. Supp. 264, 277–78 (1939), rev’d on other grounds,

126 Conn. 428, 11 A.2d 863 (1940). Accordingly, we will

find the plaintiffs’ CUTPA action to be superseded by

PLCAA only if that is the clearly expressed intent of

Congress.58

In the case of PLCAA, there is no indication in the

statutory text or statement of findings and purposes

that Congress intended to restrict the power of the

states to regulate wrongful advertising, particularly

advertising that encourages consumers to engage in

egregious criminal conduct. Indeed, sponsors of the

legislation repeatedly emphasized during the legislative

hearings that they did not intend to abrogate well estab-

lished legal principles.59 Accordingly, in the absence of

a clear statement in the statutory text or legislative

history that Congress intended to supersede the states’

traditional authority to regulate the wrongful advertis-

ing of dangerous products such as firearms, we are

compelled to resolve any textual ambiguities in favor

of the plaintiffs.

b

Ejusdem Generis

The defendants contend that a different canon of

construction, namely, ejusdem generis, essentially

resolves any statutory ambiguity in their favor. Specifi-

cally, from the fact that PLCAA provides two examples

of predicate federal statutes, both of which specifically

relate to firearms, the defendants infer that all predicate

statutes must be of that same ilk.60 We are not per-

suaded.

When it drafted the predicate exception, Congress

set forth two examples of statutes that are applicable

to the sale or marketing of firearms. PLCAA provides

that entities engaged in the firearms business are not

immune from liability with respect to ‘‘an action in

which a manufacturer or seller of a [firearm] knowingly

violated a State or Federal statute applicable to the sale

or marketing of the [firearm] . . . including—

‘‘(I) any case in which the manufacturer or seller

knowingly made any false entry in, or failed to make

appropriate entry in, any record required to be kept

under Federal or State law with respect to the [firearm],

or aided, abetted, or conspired with any person in mak-

ing any false or fictitious oral or written statement with

respect to any fact material to the lawfulness of the

sale or other disposition of a [firearm]; or

‘‘(II) any case in which the manufacturer or seller

aided, abetted, or conspired with any other person to

sell or otherwise dispose of a [firearm], knowing, or

having reasonable cause to believe, that the actual

buyer of the [firearm] was prohibited from possessing

or receiving a firearm . . . under subsection (g) or (n)

of section 922 of title 18 [of the United States Code]

. . . .’’61 15 U.S.C. § 7903 (5) (A) (iii) (2012) (setting

forth record keeping and unlawful buyer exceptions).

The defendants argue that we can discern the scope

of the predicate exception by applying ejusdem generis.

That canon applies when a statute sets forth a general

category of persons or things and then enumerates spe-

cific examples thereof. In those cases, when the scope

of the general category is unclear, a presumption, albeit

a rebuttable one, may arise that the general category

encompasses only things similar in nature to the spe-

cific examples that follow. See, e.g., 2A N. Singer & S.

Singer, Statutes and Statutory Construction (7th Ed.

2014) § 47:17, pp. 364–68. Several courts have acknowl-

edged the potential relevance of the canon when con-

struing the predicate exception. See, e.g., New York v.

Beretta U.S.A. Corp., supra, 524 F.3d 401–402.

It is well established, however, that ejusdem generis,

like other canons of construction, is merely a tool to

assist us in gleaning the intent of Congress; it should

not be applied in the face of a contrary manifestation

of legislative intent. Helvering v. Stockholms Enskilda

Bank, 293 U.S. 84, 88–89, 55 S. Ct. 50, 79 L. Ed. 211

(1934); 2A N. Singer & S. Singer, supra, § 47:22, pp.

400–404. This is particularly true, for example, when

the legislative history of a statute reveals a contrary

intent. See 2A N. Singer & S. Singer, supra, § 47:22,

pp. 404–405.

In the case of PLCAA, the legislative history of the

statute makes clear why Congress specifically chose to

include the record keeping and unlawful buyer excep-

tions when drafting the final version of the predicate

exception. Bills substantially similar to PLCAA had

been introduced in both the 107th Congress and the

108th Congress. See S. 1805, 108th Cong. (2003), H.R.

1036, 108th Cong. (2003); H.R. 2037, 107th Cong. (2001).

Those bills contained the same exemption for ‘‘State

or Federal statute[s] applicable to the sale or marketing

of [firearms]’’ that ultimately was codified at 15 U.S.C.

§ 7903 (5) (A) (iii). H.R. 2037, supra, § 4; accord S. 1805,

supra, § 4; H.R. 1036, supra, § 4. Notably, however, they

did not include the record keeping or the unlawful buyer

exception. Indeed, they did not offer any specific exam-

ples of predicate statutes.

The legislative history indicates that the record keep-

ing and unlawful buyer illustrations were added to the

bill that became law during the 109th Congress not to

define or clarify the narrow scope of the exception but,

rather, because, in 2002, two snipers had terrorized the

District of Columbia and surrounding areas. One of the

snipers allegedly stole a Bushmaster XM-15 semiauto-

matic rifle identical or similar to the one at issue in the

present case from a gun dealer with a history of lax

inventory control procedures.62 In 2003, the families of

the victims of the sniper attacks brought a civil action

against the gun dealer that ultimately resulted in a $2.5

million settlement.63 During the legislative debates,

many of the members who spoke in opposition to the

bill that ultimately became PLCAA argued that the bill

would have prevented victims of the sniper attacks from

bringing an action against that gun dealer, even though

the dealer’s carelessness had allowed the snipers to

obtain the assault weapon.64 Indeed, it was in part for

that very reason, and the public outcry over the sniper

attacks, that prior versions of the bill failed to pass.65

To deflect these potent political attacks, the author

and other supporters of the 2005 incarnation of the bill

pointed to the recently added record keeping and illegal

buyer exception language as evidence that victims of

the sniper attacks would not have been barred from

pursuing their action under the predicate exception.66

Indeed, several legislators strongly suggested that these

examples of predicate statutes were specifically added

to PLCAA to make clear that the lawsuits arising from

the sniper attacks would not have been barred by

PLCAA.67

The most reasonable interpretation of this legislative

history, then, is that the record keeping and unlawful

buyer illustrations were included in the final version of

PLCAA not in an effort to define, clarify, or narrow the

universe of laws that qualify as predicate statutes but,

rather, simply to stave off the politically potent attack

that PLCAA would have barred lawsuits like the one

that had arisen from the widely reported Beltway sniper

attacks. There is no other plausible explanation for

why Congress chose to modify the predicate exception

language contained in the 2001 and 2003 bills, which

otherwise was ‘‘virtually identical’’ to the language in

PLCAA. 151 Cong. Rec. 2561 (2005), remarks of Senator

Larry Edwin Craig; see also id., 18,096, remarks of Sena-

tor Craig (indicating that bill is same for all intents and

purposes as version introduced during 108th Congress,

with addition of clarifying examples).

This conclusion is bolstered by the fact that Congress

was fully aware that there are many types of federal

statutes and regulations, filling ‘‘hundreds of pages,’’

that specifically govern the firearms industry. 151 Cong.

Rec. 18,059 (2005), remarks of Senator Thomas Allen

Coburn. Indeed, 18 U.S.C. § 922 is dedicated to delineat-

ing dozens of different unlawful acts relating to the

production, distribution, and sale of firearms. Congress

could have simply identified 18 U.S.C. § 922, or the

other federal firearms laws to which Senator Coburn

alluded, as examples of predicate statutes. Instead, the

author of PLCAA opted to highlight only the two specific

subsections of 18 U.S.C. § 922—subsection (g) and

(n)—that would have barred the Beltway snipers from

obtaining the weapon used in the shootings.

Under similar circumstances, when it is clear that

examples have been included in a statute for purposes

of emphasis or in response to recent, high profile events,

rather than to restrict the scope of coverage, both the

United States Supreme Court and the lower federal

courts have declined to apply canons, including ejus-

dem generis, to construe a statutory provision overly

narrowly.68 For similar reasons, we conclude that the

ejusdem generis canon is not applicable to the predi-

cate exception.

c

Statutory Exceptions To Be Construed Narrowly

Citing Commissioner of Internal Revenue v. Clark,

489 U.S. 726, 739, 109 S. Ct. 1455, 103 L. Ed. 2d 753

(1989), the defendants rely on another canon, con-

tending that the predicate exception, like other statu-

tory exceptions, must be construed narrowly to pre-

serve the primary purpose of PLCAA. As we explained,

however, our review of the statutory language strongly

suggests that the defendants have misperceived the pri-

mary 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.69

2

Related Legislation

We also find it instructive that, in early 2005, at

approximately the same time that the proposed legisla-

tion that ultimately became PLCAA was introduced,

bills were introduced in both the House of Representa-

tives and the Senate that would have bestowed PLCAA-

type immunity on fast food restaurant companies to

protect them from lawsuits seeking to hold them liable

for consumers’ obesity and related health problems.70

Both bills contained language that was substantially

similar to PLCAA’s predicate exception: ‘‘A qualified

civil liability action shall not include . . . an action

based on allegations that . . . a manufacturer or seller

of [food] knowingly violated a Federal or State statute

applicable to the marketing, advertisement, or labeling

of [food] with intent for a person to rely on that violation

. . . .’’ S. 908, 109th Cong. § 4 (2005); accord H.R. 554,

109th Cong. § 4 (2005). The House Report accompa-

nying H.R. 554 made clear that ‘‘applicable’’ statutes for

purposes of that bill were not limited to laws, such as

the Federal Food, Drug and Cosmetic Act; 21 U.S.C.

§ 301 et seq. (2012); that directly and specifically regu-

late the food industry. Rather, the report indicated that

state consumer protection laws, such as CUTPA, also

qualified as predicate statutes, even though they are

laws of general applicability that do not expressly

address food and beverage marketing or labeling:

‘‘Every state has its own deceptive trade practices laws,

and a knowing violation of any of such state laws could

allow suits to go forward under the legislation if the

criteria specified . . . are met.’’71 H.R. Rep. No. 109-

130, p. 8 (2005).

We recognize that these bills never became law and

also that food and firearms are different types of prod-

ucts that implicate different risks and concerns. Never-

theless, we cannot ignore the fact that PLCAA and the

fast food bills were introduced at essentially the same

time, with substantially similar language and structure.72

See 2B N. Singer & J. Singer, Statutes and Statutory

Construction (7th Ed. 2012) § 51:4, pp. 275–76 (vetoed

bills and repealed statutes may be construed in pari

materia to assist in interpreting ambiguous legislation).

In light of this fact, there is good reason to believe that

legislators would have understood the term ‘‘statute

applicable to’’ in 15 U.S.C. § 7903 (5) (A) (iii) as similarly

encompassing an action under CUTPA against a com-

pany that unethically markets firearms for illegal pur-

poses.

3

The Legislative History of PLCAA

Finally, to the extent that any ambiguities remain

unresolved, we consider the legislative history of

PLCAA. Although the extensive history of the statute

presents something of a mixed bag, our review per-

suades us that Congress did not intend to limit the

scope of the predicate exception to violations of fire-

arms specific laws or to confer immunity from all claims

alleging that firearms sellers violated unfair trade prac-

tice laws.

During the legislative debates, opponents of the pro-

posed legislation that became PLCAA repeatedly ques-

tioned why it was necessary to confer immunity on the

firearms industry when, in their view, only a very small

number of gun violence related lawsuits had been filed

against firearms manufacturers and distributors, most

of which had been dismissed at the trial court level.73

In response, PLCAA’s sponsor and several of PLCAA’s

cosponsors described the specific types of lawsuits that

the legislation was intended to prohibit. See footnotes

74 and 76 of this opinion. They emphasized that their

primary concern was not with lawsuits such as the

present action, in which individual plaintiffs who have

been harmed in a specific incident of gun violence seek

to hold the sellers responsible for their specific miscon-

duct in selling the weapons involved. See id. Many pro-

ponents indicated that their intent was to preclude the

rising number of instances in which municipalities and

‘‘anti-gun activists’’ filed ‘‘junk’’ or ‘‘frivolous’’ lawsuits

targeting the entire firearms industry.74 As one cospon-

sor of the legislation explained, ‘‘[t]his bill is only

intended to protect law-abiding members of the fire-

arms industry from nuisance suits that have no basis

in current law, that are only intended to regulate the

industry or harass the industry or put it out of business

. . . which are [not] appropriate purposes for a law-

suit.’’75 151 Cong. Rec. 18,104 (2005), remarks of Senator

Max Sieben Baucus.76 In the present action, by contrast,

the private victims of one specific incident of gun vio-

lence seek compensation from the producers and dis-

tributors of a single firearm on the basis of alleged

misconduct in the specific marketing of that firearm.

Few if any of the bill’s sponsors indicated that cases

of this sort were what PLCAA was intended to preclude.

In addition, during the course of the legislative

debates, many legislators either expressly stated or

clearly implied that the only actions that would be

barred by PLCAA would be ones in which a defendant

bore absolutely no responsibility or blame for a plain-

tiff’s injuries and was, in essence, being held strictly

liable for crimes committed with firearms that it had

merely produced or distributed. See Ileto v. Glock, Inc.,

supra, 565 F.3d 1159 (Berzon, J., concurring in part

and dissenting in part). One cosponsor, for example,

emphasized that ‘‘the heart of this bill’’ was that one

can be held liable for violating a statute during the

production, distribution, or sale of firearms, ‘‘[b]ut we

are not going to extend it to a concept where you are

responsible, after you have done everything right, for

what somebody else may do who bought your product

and they did it wrong and it is their fault, not yours.’’

(Emphasis added.) 151 Cong. Rec. 18,920 (2005),

remarks of Senator Lindsey O. Graham. Another

cosponsor explained the essential evil to which the bill

was directed: ‘‘It is out of that fear and concern that

we have mayors and cities passing laws that create

strict liability . . . . [Firearms sellers have] become

. . . insurer[s] against criminal activity by criminals.’’

Id., 18,924, remarks of Senator Jefferson Beauregard

Sessions III. Senator Sessions added: ‘‘That is what we

are trying to curtail here—this utilization of the legal

system . . . .’’ Id.

A common theme running through supporters’ state-

ments was that holding a firearms seller liable for third-

party gun violence for which the seller is wholly blame-

less is no different from holding producers of products

such as automobiles, matches, baseball bats, and knives

strictly liable when those ubiquitous but potentially dan-

gerous items are inappropriately or illegally used to

commit crimes. As the author of PLCAA, Senator Craig,

explained: ‘‘If a gun manufacturer is held liable for the

harm done by a criminal who misuses a gun, then there

is nothing to stop the manufacturers of any product

used in crimes from having to bear the costs resulting

from the actions of those criminals. So as I mentioned

earlier, automobile manufacturers will have to take the

blame for the death of a bystander who gets in the way

of the drunk driver. The local hardware store will have

to be held responsible for a kitchen knife it sold, if later

that knife is used in the commission of a rape. The

baseball team whose bat was used to bludgeon a victim

will have to pay the cost of the crime. The list goes on

and on.’’ Id., 18,085. The implication of this argument

is that legislators’ primary concern was that liability

should not be imposed in situations in which the pro-

ducer or distributor of a consumer product bears abso-

lutely no responsibility for the misuse of that product

in the commission of a crime. There is no indication

that the sponsors of PLCAA believed that sellers of

those consumer products should be shielded from lia-

bility if, for example, an automobile manufacturer

advertised that the safety features of its vehicles made

them ideally suited for drunk driving, or if a sporting

goods dealer ran advertisements encouraging high

school baseball players to hurl their bats at the opposing

pitcher in retaliation for an errant pitch. That is, in

essence, what the plaintiffs have alleged in the present

case.

To the extent that supporters of PLCAA were con-

cerned with lawsuits other than those seeking to hold

firearms sellers strictly liable for gun violence, they

consistently expressed that their intention was to fore-

close novel legal theories that had been developed by

anti-gun activists with the goal of putting firearms sell-

ers out of business.77 The author of the legislation

explained as follows: ‘‘As we have stressed repeatedly,

this legislation will not bar the courthouse doors to

victims who have been harmed by the negligence or

misdeeds of anyone in the gun industry. Well recognized

causes of action are protected by the bill. Plaintiffs can

still argue their cases for violations of law . . . . The

only lawsuits this legislation seeks to prevent are novel

causes of action that have no history or grounding in

legal principle.’’ Id., 18,096, remarks of Senator Craig.

In addition, a number of lawmakers emphasized that

the legislation was primarily directed at heading off

unprecedented tort theories,78 which explains why the

predicate exception expressly preserved liability for

statutory violations. See Ileto v. Glock, Inc., supra, 565

F.3d 1135 (‘‘Congress clearly intended to preempt com-

mon-law claims, such as general tort theories of liabil-

ity’’); id., 1160–61 (Berzon, J., concurring in part and

dissenting in part) (‘‘[PLCAA] was viewed essentially

as a [tort reform] measure, aimed at restraining the

supposed expansion of tort liability’’).

As we discussed previously, the plaintiffs’ theory of

liability is not novel; nor does it sound in tort.79 The

plaintiffs allege that the defendants engaged in unfair

trade practices in violation of CUTPA, a statute that

was enacted in 1973. See P.A. 73-615. Furthermore,

CUTPA, by its express terms, is modeled on the FTC

Act; see General Statutes § 42-110b (b); which has been

in effect for more than one century. See Act of Septem-

ber 26, 1914, Pub. L. No. 63-203, 38 Stat. 717. As we

explained, the FTC Act and its state counterparts have

long been used to regulate not only the sale and market-

ing of firearms but also claims that sellers of other

dangerous products have advertised their wares in a

manner that modeled or promoted unsafe behavior and

created an unreasonable risk that viewers would engage

in unsafe or illegal conduct.80

The defendants, purporting to rely on the decision

of the Ninth Circuit in Ileto, argue that the legislative

history of PLCAA supports a more restrictive view of

the scope of the predicate exception. We read Ileto

differently. As we noted; see footnote 47 of this opinion;

the court in that case concluded that ‘‘congressional

speakers’ statements concerning the scope of . . .

PLCAA reflected the understanding that manufacturers

and sellers of firearms would be liable only for statutory

violations concerning firearm[s] regulations or sales

and marketing regulations.’’ (Emphasis added.) Ileto

v. Glock, Inc., supra, 565 F.3d 1137. Because CUTPA

specifically regulates commercial sales and marketing

activities such as those at issue in the present case;

see, e.g., Izzarelli v. R.J. Reynolds Tobacco Co., 117 F.

Supp. 2d 167, 178 (D. Conn. 2000); it falls squarely within

the predicate exception, as Ileto construed the legisla-

tive history.

We do not dispute that, over the course of the hun-

dreds of pages of coverage of the legislative debates,

a few congressional supporters of PLCAA made a few

brief references to predicate statutes as being firearms

specific.81 What the defendants have overlooked, how-

ever, are the dozens of statements by PLCAA’s drafter

and cosponsors that imply or directly state that the

predicate exception applies far more broadly, such that

firearms companies may be held liable for violation

of any applicable law, and not only those laws that

specifically govern the firearms trade. Indeed, in the

vast majority of instances in which the predicate excep-

tion was discussed during the legislative debates, pro-

ponents spoke in broad, general terms, indicating that

the bill would not immunize firearms companies that

had engaged in any illegal activity.82

Several cosponsors of the bill that became PLCAA

specifically explained that it would not preclude victims

of gun violence from holding firearms companies

accountable for injuries resulting from their gross negli-

gence or reckless conduct, because, essentially, any

such conduct would be in violation of some state or

federal law. See, e.g., 151 Cong. Rec. 18,919 (2005),

remarks of Senator Jon Llewellyn Kyl (‘‘[M]ost of the

acts that would meet the definition of gross negligence

would already be in violation of law. And if they are

in violation of law, they are not exempted from this

legislation. We don’t try to exempt any gun manufac-

turer for conduct [that] is in violation of law. So by

definition that would be an exemption from the provi-

sions of the bill . . . . The bottom line here is that if

there really is a problem, that is to say, the conduct is

so bad that it is a violation of law, no lawsuit is pre-

cluded under our bill in any way. . . . So in fact if the

gross negligence or reckless conduct of a person was

the proximate cause of death or injury—that is the

allegation—you are in court irrespective of this bill

. . . .’’); id., 18,922, remarks of Senator Orrin Grant

Hatch (‘‘[v]irtually any act that would meet the defini-

tion of gross negligence . . . would already be a viola-

tion of [f]ederal, [s]tate or local law, and therefore

would not receive the protection of this law anyway’’).

The clear implication of these comments is that the

predicate exception extends beyond firearms specific

laws and encompasses laws such as CUTPA, which

prohibit wholly irresponsible conduct such as the

wrongful advertising of potentially dangerous products

for criminal or illegal purposes.

The strongest support for the defendants’ reading of

the legislative history is a passing statement by the

author of PLCAA, Senator Craig, that ‘‘[t]his bill does

not shield . . . [those who] have violated existing law

. . . and I am referring to the [f]ederal firearms laws

. . . .’’ Id., 18,085. That statement was made, however,

in the context of a discussion of the federal record

keeping requirements that govern sales of firearms,

requirements that are indisputably specific to that

industry. At no point did Senator Craig suggest that, in

his opinion, the only state laws that qualify as predicate

statutes are those that specifically regulate the firearms

industry. Rather, on numerous occasions during the

legislative debates, Senator Craig categorically stated

that the bill was intended to protect only law abiding

firearms companies that had not violated any federal

or state law.83 ‘‘As we have stressed repeatedly,’’ Senator

Craig emphasized, ‘‘this legislation will not bar the

courthouse doors to victims who have been harmed by

the negligence or misdeeds of anyone in the gun indus-

try. Well recognized causes of action are protected by

the bill. Plaintiffs can still argue their cases for viola-

tions of law . . . .’’84 Id., 18,096. Accordingly, we con-

clude that the legislative history of PLCAA does not

support the defendants’ contention that Congress

intended to shield them from potential liability for the

types of CUTPA violations that the plaintiffs have

alleged.

VI

CONCLUSION

It is, of course, possible that Congress intended to

broadly immunize firearms sellers from liability for the

sort of egregious misconduct that the plaintiffs have

alleged but failed to effectively express that intent in the

language of PLCAA or during the legislative hearings.

If that is the case, and in light of the difficulties that

the federal courts have faced in attempting to distill

a clear rule or guiding principle from the predicate

exception, Congress may wish to revisit the issue and

clarify its intentions.

We are confident, however, that, if there were credi-

ble allegations that a firearms seller had run explicit

advertisements depicting and glorifying school shoot-

ings, and promoted its products in video games, such

as ‘‘School Shooting,’’ that glorify and reward such

unlawful conduct,85 and if a troubled young man who

watched those advertisements and played those games

were inspired thereby to commit a terrible crime like

the ones involved in the Sandy Hook massacre, then

even the most ardent sponsors of PLCAA would not

have wanted to bar a consumer protection lawsuit seek-

ing to hold the supplier accountable for the injuries

wrought by such unscrupulous marketing practices.

That is not this case, and yet the underlying legal princi-

ples are no different. Once we accept the premise that

Congress did not intend to immunize firearms suppliers

who engage in truly unethical and irresponsible market-

ing practices promoting criminal conduct, and given

that statutes such as CUTPA are the only means avail-

able to address those types of wrongs, it falls to a jury

to decide whether the promotional schemes alleged in

the present case rise to the level of illegal trade practices

and whether fault for the tragedy can be laid at their feet.

For the foregoing reasons, we conclude that the trial

court properly determined that, although most of the

plaintiffs’ claims should have been dismissed, PLCAA

does not bar the plaintiffs’ wrongful marketing claims

and that, at least to the extent that it prohibits the

unethical advertising of dangerous products for illegal

purposes, CUTPA qualifies as a predicate statute. Spe-

cifically, if the defendants did indeed seek to expand the

market for their assault weapons through advertising

campaigns that encouraged consumers to use the weap-

ons not for legal purposes such as self-defense, hunting,

collecting, or target practice, but to launch offensive

assaults against their perceived enemies, then we are

aware of nothing in the text or legislative history of

PLCAA to indicate that Congress intended to shield the

defendants from liability for the tragedy that resulted.

The judgment is reversed with respect to the trial

court’s ruling that the plaintiffs lack standing to bring

a CUTPA claim and its conclusion that the plaintiffs’

wrongful death claims predicated on the theory that

any sale of military style assault weapons to the civilian

market represents an unfair trade practice were not

barred under the applicable statute of limitations, and

the case is remanded for further proceedings according

to law; the judgment is affirmed in all other respects.

In this opinion McDONALD, MULLINS and KAHN,

Js., concurred.

* This case originally was scheduled to be argued before a panel of this

court consisting of Justices Palmer, McDonald, Robinson, Mullins, Kahn,

Vertefeuille and Elgo. Although Justices Robinson and Kahn were not present

when the case was argued before the court, they have read the briefs

and appendices, and listened to a recording of the oral argument prior to

participating in this decision.

The listing of justices reflects their seniority status on this court as of

date of oral argument.

1 Following the Sandy Hook massacre, the legislature added the Bushmas-

ter XM15, among many other assault rifles, to the list of firearms the sale

or transfer of which is prohibited in Connecticut. See Public Acts 2013, No.

13-3, § 25, codified at General Statutes (2014 Supp.) § 53-202a (1) (B) (xxi).

2 The plaintiffs are Donna L. Soto, administratrix of the estate of Victoria

L. Soto; Ian Hockley and Nicole Hockley, coadministrators of the estate of

Dylan C. Hockley; David C. Wheeler, administrator of the estate of Benjamin

A. Wheeler; Mary D’Avino, administratrix of the estate of Rachel M. D’Avino;

Mark Barden and Jacqueline Barden, coadministrators of the estate of Daniel

G. Barden; William D. Sherlach, executor of the estate of Mary Joy Sherlach;

Neil Heslin and Scarlett Lewis, coadministrators of the estate of Jesse

McCord Lewis; Leonard Pozner, administrator of the estate of Noah S.

Pozner; and Gilles J. Rousseau, administrator of the estate of Lauren G.

Rousseau. For convenience, we refer to these plaintiffs simply as ‘‘the dece-

dents’’ with respect to claims brought by the administrators in their fidu-

ciary capacity.

We note that one administrator, William D. Sherlach, also filed suit in his

individual capacity, seeking damages for loss of consortium. The parties

have not specifically briefed and we do not separately address William D.

Sherlach’s loss of consortium claims in this opinion.

We further note that Natalie Hammond, a staff member who was wounded

in but survived the attack, also was named as a plaintiff. Hammond has

abandoned her claims and, therefore, is not a party to this appeal.

3 The Bushmaster defendants are Bushmaster Firearms; Bushmaster Fire-

arms, Inc.; Bushmaster Firearms International, LLC; Remington Outdoor

Company, Inc.; Remington Arms Company, LLC; Bushmaster Holdings, LLC;

and Freedom Group, Inc.

4 The Camfour defendants are Camfour, Inc., and Camfour Holding, LLP,

also known as Camfour Holding, Inc.

5 The Riverview defendants are Riverview Sales, Inc., and David LaGuercia.

6 We will refer to Adam Lanza as Lanza and to Nancy Lanza as his mother.

7 General Statutes § 52-555 provides in relevant part: ‘‘(a) In any action

surviving to or brought by an executor or administrator for injuries resulting

in death, whether instantaneous or otherwise, such executor or administra-

tor may recover from the party legally at fault for such injuries just damages

together with the cost of reasonably necessary medical, hospital and nursing

services, and including funeral expenses, provided no action shall be brought

to recover such damages and disbursements but within two years from the

date of death, and except that no such action may be brought more than

five years from the date of the act or omission complained of. . . .’’

8 The parties and the amici disagree as to whether the term ‘‘assault rifle’’

is an appropriate moniker for this class of weapons. We use the term because

it is how the General Assembly has chosen to refer to semiautomatic fire-

arms. See General Statutes § 53-202a (1) (B) (xxi); see also Merrill v.

Navegar, Inc., 26 Cal. 4th 465, 470 n.3, 28 P.3d 116, 110 Cal. Rptr. 2d 370

(2001) (term has become widely accepted in law).

9 General Statutes § 42-110b (a) provides that ‘‘[n]o person shall engage

in unfair methods of competition and unfair or deceptive acts or practices

in the conduct of any trade or commerce.’’

Other relevant provisions of CUTPA are set forth in part IV of this opinion.

10 The referenced statutory provisions are set forth in part IV of this

opinion.

11 See 15 U.S.C. § 7903 (5) (A) (ii) (2012).

12 See 15 U.S.C. § 7903 (5) (A) (iii) (2012). This exception has come to be

known as the predicate exception because a plaintiff must allege a knowing

violation of a predicate statute.

13 The plaintiffs appealed to the Appellate Court from the judgment of the

trial court, and we transferred the appeal to this court pursuant to General

Statutes § 51-199 (c) and Practice Book § 65-1.

We granted permission to thirteen groups to appear and file amicus curiae

briefs in this appeal. Five of the amici have filed briefs in support of the

defendants’ position: (1) Connecticut Citizens Defense League, Inc.; (2)

Connecticut Defense Lawyers Association; (3) Gun Owners of America,

Inc., Gun Owners Foundation, United States Justice Foundation, The Heller

Foundation, and Conservative Legal Defense and Education Fund; (4)

National Rifle Association of America, Inc.; and (5) National Shooting Sports

Foundation. Eight of the amici have filed briefs in support of the plaintiffs’

position: (1) medical doctors Katie Bakes, William Begg, Barbara Blok,

Kathleen Clem, Christopher Colwell, Marie Crandall, Michael Hirsh, Stacy

Reynolds, Jeffrey Sankoff, and Comilla Sasson (physicians amici); (2) The

Brady Center to Prevent Gun Violence; (3) CT Against Gun Violence and

Tom Diaz; (4) Law Center to Prevent Gun Violence; (5) Newtown Action

Alliance and the Connecticut Association of Public School Superintendents;

(6) law professors Nora Freeman Engstrom, Alexandra D. Lahav, Anita

Bernstein, John J. Donohue III, Michael D. Green, Gregory C. Keating, James

Kwak, Douglas Kysar, Stephan Landsman, Anthony J. Sebok, W. Bradley

Wendel, John Fabian Witt, and Adam Zimmerman; (7) the State of Connecti-

cut and the Department of Consumer Protection; and (8) Trinity Church

Wall Street.

14 Although our conclusion that the plaintiffs’ primary theory—that the

legal sale of the AR-15 assault rifle to the civilian market constitutes an unfair

trade practice—is barred by the relevant statute of limitations disposes of

that theory; see part IV B of this opinion; we believe that that theory, if

timely presented, also would be barred by PLCAA immunity and/or the

Product Liability Act, General Statutes § 52-572n (a).

15 The standard of review regarding motions to strike is well established.

‘‘A motion to strike attacks the legal sufficiency of the allegations in a

pleading. . . . In reviewing the sufficiency of the allegations in a complaint,

courts are to assume the truth of the facts pleaded therein, and to determine

whether those facts establish a valid cause of action. . . . [I]f facts provable

in the complaint would support a cause of action, the motion to strike must

be denied. . . . Thus, we assume the truth of both the specific factual

allegations and any facts fairly provable thereunder. . . . Because a motion

to strike challenges the legal sufficiency of a pleading, and, consequently,

requires no factual findings by the trial court, our review of the court’s

ruling [on a motion to strike] is plenary.’’ (Citations omitted; internal quota-

tion marks omitted.) Himmelstein v. Windsor, 304 Conn. 298, 307, 39 A.3d

1065 (2012).

16 Although the plaintiffs do not specifically allege it, an investigation

revealed that Lanza killed his mother in their home prior to the massacre

and that the massacre ended when he took his own life in the school. Both

of those killings apparently were carried out with other firearms and are

not at issue in this case. See Division of Criminal Justice, State of Connecti-

cut, Report of the State’s Attorney for the Judicial District of Danbury on

the Shootings at Sandy Hook Elementary School and 36 Yogananda Street,

Newtown, Connecticut on December 14, 2012 (November 25, 2013) p. 2.

17 In addition to alleging that the defendants promoted the XM15-E2S for

illegal, offensive use by civilians, the plaintiffs contended in their briefs

and at oral argument before this court that the defendants’ marketing was

unethical and unscrupulous insofar as they (1) marketed the weapon to

unstable, or even mentally ill, teenaged boys who were likely to use the

rifle to commit violent assaults, (2) attempted to circumvent firearms sales

laws by marketing the weapon to legal buyers who would foreseeably pro-

vide them to family members who could not legally purchase such weapons,

and (3) further promoted the weapons for offensive use by unstable young

men by licensing them for placement in violent video games that promote

illegal civilian uses of military type assault rifles. Because these legal theories

are not clearly articulated in the operative complaint, however, we do not

consider them for purposes of this opinion.

18 Although the plaintiffs do not expressly allege it in their complaint, the

physicians amici contend that, according to the medical literature, assault

weapon advertisements may activate people who are predisposed to

violence.

19 Title 15 of the 2012 edition of the United States Code, § 7903 (5) (B),

provides in relevant part: ‘‘[T]he term ‘negligent entrustment’ means the

supplying of a qualified product by a seller for use by another person when

the seller knows, or reasonably should know, the person to whom the

product is supplied is likely to, and does, use the product in a manner

involving unreasonable risk of physical injury to the person or others.’’

20 Title 15 of the 2012 edition of the United States Code, § 7903 (5) (A),

provides in relevant part: ‘‘The term ‘qualified civil liability action’ . . . shall

not include—

* * *

‘‘(ii) an action brought against a seller for negligent entrustment . . . .’’

21 As we explain hereinafter, there is, of course, a third option: it may be

foreseeable that the direct entrustee will share the dangerous item with a

specific, identifiable third party who is incompetent to use it safely. The

present case does not require us to determine whether and when an action

for negligent entrustment will lie under those circumstances, when the nexus

between the entrustor and the ultimate user is less attenuated than it is in

the present case.

22 See, e.g., The Republic of Plato (H. Davis trans., M. Walter Dunne 1901)

c. 5, p. 33 (arguing that, having taken temporary possession of weapons

from friend who was then in his right mind, it would be unjust to return

those weapons if friend, having since gone mad, demanded them back).

23 The plaintiffs expressly disclaim any allegation that Riverview’s employ-

ees were careless in their decision to sell the rifle to Lanza’s mother.

24 See, e.g., Dillon v. Suburban Motors, Inc., 212 Cal. Rptr. 360, 362–67

(Cal. App.), cause dismissed, 705 P.2d 1260, 218 Cal. Rptr. 584 (Cal. 1985);

Semeniuk v. Chentis, 1 Ill. App. 2d 508, 510, 117 N.E.2d 883 (1954); Sickles

v. Montgomery Ward & Co., 6 Misc. 2d 1000, 1001, 167 N.Y.S.2d 977 (1957);

Corey v. Kaufman & Chernick, Inc., 70 R.I. 27, 30–31, 36 A.2d 103 (1944).

25 The plaintiffs have drawn our attention to several cases in which the

dangerous instrumentality at issue was misused by someone other than the

direct entrustee. In each of those cases, however, the defendants had specific

reason to know or believe that the direct entrustee should not be trusted

with the instrumentality. See, e.g., Collins v. Arkansas Cement Co., 453 F.2d

512, 513–14 (8th Cir. 1972) (defendant’s employee who gave explosive to

children had history of horseplay with such explosives); LeClaire v. Com-

mercial Siding & Maintenance Co., 308 Ark. 580, 581–82, 826 S.W.2d 247

(1992) (defendant knew that employee, who allowed another driver to use

defendant’s vehicle, leading to accident, had history of intoxication and

moving violations); Rios v. Smith, 95 N.Y.2d 647, 653, 744 N.E.2d 1156, 722

N.Y.S.2d 220 (2001) (defendant knew that son often drove defendant’s all-

terrain vehicle [ATV] in unsafe manner and that son’s friend, whose misuse

of ATV injured plaintiff, was frequent visitor and previously had ridden ATV

with son).

26 General Statutes (Rev. to 1975) § 42-110b (a) provided in relevant part:

‘‘No person shall engage in unfair methods of competition . . . in the con-

duct of any trade or commerce. . . .’’ General Statutes (Rev. to 1975) § 42-

110a (4) defined ‘‘trade and commerce’’ as ‘‘the advertising, offering for sale,

sale, or distribution of any services and any property . . . .’’

27 See, e.g., 19 H.R. Proc., Pt. 6, 1976 Sess., pp. 2186–87, remarks of Repre-

sentative Ferrari.

28 See, e.g., 22 S. Proc., Pt. 8, 1979 Sess., p. 2575, remarks of Senator Steven

C. Casey; 19 S. Proc., Pt. 6, 1976 Sess., pp. 2276–78, remarks of Senator

Louis Ciccarello.

29 See, e.g., Bubalo v. Navegar, Inc., Docket No. 96 C 3664, 1997 WL 337218,

*9 (N.D. Ill. June 13, 1997), modified on other grounds, 1998 WL 142359

(N.D. Ill. March 20, 1998); S. Calkins, ‘‘FTC Unfairness: An Essay,’’ 46 Wayne

L. Rev. 1935, 1975–76 n.182 (2000); T. Lytton, ‘‘Halberstam v. Daniel and

the Uncertain Future of Negligent Marketing Claims Against Firearms Manu-

facturers,’’ 64 Brook. L. Rev. 681, 704–705 (1998).

30 We note that other courts and commentators have deemed this to be

a plausible theory of causation. See Friedman v. Highland Park, 784 F.3d

406, 411 (7th Cir.) (ban on assault weapons and large capacity magazines

may reduce carnage if mass shooting occurs), cert. denied, U.S. ,

136 S. Ct. 447, 193 L. Ed. 2d 483 (2015); Merrill v. Navegar, Inc., supra, 26

Cal. 4th 517 (Werdegar, J., dissenting) (reasonable juror could find that

features of assault pistol allowed shooter to kill and injure more victims

than would have been possible with conventional weapons); T. Lytton,

‘‘Halberstam v. Daniel and the Uncertain Future of Negligent Marketing

Claims Against Firearms Manufacturers,’’ 64 Brook. L. Rev. 681, 706 (1998)

(‘‘[i]f plaintiffs can somehow prove that a defendant’s marketing efforts

create a new market among individuals known to be likely to engage in

criminal activity who, but for the defendant’s efforts, would be less likely

to purchase a weapon . . . with the firepower of the defendant’s, then

[those] plaintiffs may be able to convince a jury on the issues of breach

and causation’’).

31 General Statutes § 42-110g (f) provides: ‘‘An action under this section

may not be brought more than three years after the occurrence of a violation

of this chapter.’’

32 Of course, on remand the defendants are not foreclosed from attempting

to demonstrate, in the context of a motion for summary judgment, that they

did not engage in any of the allegedly wrongful marketing activities within

three years prior to the date of the massacre.

33 We note that, although a ‘‘ ‘[p]roduct liability claim’ includes all claims

or actions brought for personal injury, death or property damage caused

by [among other things] the . . . marketing . . . of any product’’; General

Statutes § 52-572m (b); it is well established that the exclusivity provision

of the Product Liability Act applies only to those claims seeking to recover

damages caused by a defective product. Gerrity v. R.J. Reynolds Tobacco

Co., supra, 263 Conn. 128.

34 Although the defendants frame the issue as whether damages for wrong-

ful death are recoverable under CUTPA, the issue is more accurately charac-

terized as whether CUTPA permits recovery for personal injuries, fatal or

otherwise. Because death itself was not a recognized type of damage at

common law, ‘‘[d]eath and its direct consequences can constitute recover-

able elements of damages only if, and to the extent that, they are made so

by statute.’’ Lynn v. Haybuster Mfg., Inc., 226 Conn. 282, 295, 627 A.2d 1288

(1993). In fact, ‘‘[t]he wrongful death statute . . . is the sole basis [on]

which an action that includes as an element of damages a person’s death

or its consequences can be brought.’’ (Citation omitted.) Id. There is no

question, then, that CUTPA itself does not authorize the recovery of damages

for wrongful death.

35 We express no opinion as to under what other circumstances CUTPA

may allow recovery for personal injuries.

36 See R. Langer et al., 12 Connecticut Practice Series: Connecticut Unfair

Trade Practices, Business Torts and Antitrust (2018–19 Ed.) § 6.7, p. 850

(noting that Connecticut’s trial courts are divided on this question).

37 General Statutes § 42-110b (b) provides in relevant part that ‘‘[i]t is the

intent of the legislature that in construing subsection (a) of this section,

the commissioner and the courts of this state shall be guided by interpreta-

tions given by the Federal Trade Commission and the federal courts to

Section 5 (a) (1) of the Federal Trade Commission Act . . . .’’

38 We recognize that the FTC Act does not authorize a private right of action

and, therefore, that neither the FTC nor the federal courts, in construing

the FTC Act, have confronted the issue of whether a plaintiff harmed by

immoral marketing practices may recover for resulting personal injuries.

Nevertheless, we find it instructive that the FTC Act has been construed

to apply to unethical and unscrupulous marketing and other unfair trade

practices that are likely to result in primarily physical harms. See, e.g., In

re International Harvester Co., supra, 104 F.T.C. 1064.

39 The statute applies to sales of both firearms and ammunition. See, e.g.,

15 U.S.C. § 7903 (4) (2012). In the interest of simplicity, we use the term

‘‘firearm’’ to encompass ammunition as well.

40 The law provides that ‘‘[a] qualified civil liability action may not be

brought in any Federal or State court.’’ 15 U.S.C. § 7902 (a) (2012). ‘‘The

term ‘qualified civil liability action’ means a civil action or proceeding or

an administrative proceeding brought by any person against a manufacturer

or seller of a [firearm], or a trade association, for damages, punitive damages,

injunctive or declaratory relief, abatement, restitution, fines, or penalties,

or other relief, resulting from the criminal or unlawful misuse of a [firearm]

by the person or a third party . . . .’’ 15 U.S.C. § 7903 (5) (A) (2012).

41 See, e.g., 15 U.S.C. § 6211 (9) (2012) (for purposes of international

antitrust enforcement assistance, defining ‘‘regional economic integration

organization’’ as ‘‘an organization that is constituted by, and composed of,

foreign states, and on which such foreign states have conferred sovereign

authority to make decisions that are . . . directly applicable to and binding

on persons within such foreign states’’); 22 U.S.C. § 283ii (a) (2012) (‘‘securi-

ties guaranteed by the [Inter-American Investment] Corporation as to both

principal and interest to which the commitment in article II, section 2 (e)

of the agreement [establishing that Corporation] is expressly applicable,’’

are exempt from rules governing domestic securities); 26 U.S.C. § 833 (c)

(4) (B) (i) (2012) (health insurance organization is treated as existing Blue

Cross or Blue Shield organization for tax purposes if it is ‘‘organized under,

and governed by, State laws which are specifically and exclusively applicable

to not-for-profit health insurance or health service type organizations’’).

42 We recognize that the term ‘‘marketing’’ is facially ambiguous. One

dictionary in print at the time the statute was enacted defines ‘‘marketing’’

as follows: ‘‘1. The act or process of buying and selling in a market. 2.

The commercial functions involved in transferring goods from producer to

consumer. 3. The promotion of sales of a product, as by advertising and

packaging.’’ The American Heritage College Dictionary (4th Ed. 2007) p.

847. Notably, whereas the first two definitions are roughly synonymous

with the general concepts of distribution and sales, the third is limited to

advertising and other purely promotional functions.

In context, however, it is clear that the term ‘‘marketing’’ is used in PLCAA

in the third, narrower sense. As we noted, the predicate exception refers

to statutes ‘‘applicable to the sale or marketing of’’ firearms. 15 U.S.C. § 7903

(5) (A) (iii) (2012). Elsewhere, PLCAA refers to ‘‘[b]usinesses in the United

States that are engaged in interstate and foreign commerce through the

lawful design, manufacture, marketing, distribution, importation, or sale to

the public of firearms or ammunition products . . . .’’ 15 U.S.C. § 7901 (a)

(5) (2012). If the term ‘‘marketing’’ had been meant to encompass sales and

distribution, as well as advertising and the like, then Congress’ inclusion of

the terms ‘‘sale’’ and ‘‘distribution’’ would be superfluous. See, e.g., Milner

v. Dept. of the Navy, 562 U.S. 562, 575, 131 S. Ct. 1259, 179 L. Ed. 2d 268

(2011) (citing TRW, Inc. v. Andrews, 534 U.S. 19, 31, 122 S. Ct. 441, 151 L.

Ed. 2d 339 [2001], for proposition that statutes should be read to avoid

making any provision superfluous).

In addition, there are several other provisions of the statute in which the

drafters referred to the ‘‘sale’’ and ‘‘distribution’’ of firearms but did not

mention ‘‘marketing.’’ See, e.g., 15 U.S.C. § 7901 (a) (4) (2012); 15 U.S.C.

§ 7903 (1) (2012). We must assume that the drafters selected their language

with conscious intent, and that the use of the additional term ‘‘marketing’’

in the predicate exception is meant to import a distinct meaning. See, e.g.,

Russello v. United States, 464 U.S. 16, 23, 104 S. Ct. 296, 78 L. Ed. 2d 17 (1983).

Our conclusion that the meaning of the term ‘‘marketing’’ is limited to

advertising and promotional functions in the context of PLCAA finds addi-

tional support in the 2018 edition of 22 C.F.R. § 123.4 (a) (3), which permits

the temporary importation of certain defense articles, including arms, if an

item ‘‘[i]s imported for the purpose of exhibition, demonstration or marketing

in the United States and is subsequently returned to the country from which

it was imported . . . .’’ This is consistent with the more restrictive definition

of ‘‘marketing’’ in other federal regulations. See, e.g., 45 C.F.R. § 164.501

(2018). Several recently proposed federal bills that would have regulated

the firearms industry provide further support. H.R. 5093, 113th Cong. (2014),

for example, which would have directed the FTC to ‘‘promulgate rules . . .

to prohibit any person from marketing firearms to children’’; id., § 2 (a);

barred advertising practices such as ‘‘the use of cartoon characters to pro-

mote firearms and firearms products.’’ Id., § 2 (a) (1). Also instructive is

H.R. 2089, 115th Cong. (2017). One provision of that bill would have prohib-

ited ‘‘the manufacture, importation, sale, or purchase by civilians of the

Five-seveN Pistol . . . .’’ Id., § 2 (b) (2). Another provision references ‘‘the

current or historical marketing of the firearm’s capabilities . . . .’’ Id.,

§ 3 (b).

43 See Cal. Bus. & Prof. Code § 5272.1 (c) (2) (Deering Supp. 2018) (prohib-

iting firearms advertisements at public, multimodal transit facilities); N.J.

Admin. Code § 13:54-5.6 (2007) (establishing requirements for newspaper

advertisements of machine guns, assault firearms, and semiautomatic rifles);

R.I. Gen. Laws § 11-47-40 (b) (2002) (regulating advertisement of conceal-

able firearms).

44 Clearly, as one original cosponsor of the bill that became PLCAA; S.

397, 109th Cong. (2005); explained, legislators were of the view that such

laws do exist: ‘‘[P]laintiffs are demanding colossal monetary damages and

a broad range of injunctive relief . . . . These injunctions would relate to

the design, manufacture, distribution, marketing, and the sale of firearms.

We already have laws that cover all of that.’’ (Emphasis added.) 151 Cong.

Rec. 17,371 (2005), remarks of Senator Jefferson Beauregard Sessions III.

45 See, e.g., R. Petty, ‘‘Supplanting Government Regulation with Competitor

Lawsuits: The Case of Controlling False Advertising,’’ 25 Ind. L. Rev. 351,

359 (1991); M. Meaden, Comment, ‘‘Joe Camel and the Targeting of Minors

in Tobacco Advertising: Before and After 44 Liquormart v. Rhode Island,’’

31 New Eng. L. Rev. 1011, 1026–27 (1997).

46 The plaintiffs’ CUTPA claim is predicated on their contention that the

defendants ‘‘unethically, oppressively, immorally, and unscrupulously pro-

moted’’ the XM15-E2S. Commonly known as the ‘‘cigarette rule,’’ that stan-

dard originated in a policy statement of the Federal Trade Commission

issued more than one-half century ago; see Unfair or Deceptive Advertising

and Labeling of Cigarettes in Relation to the Health Hazards of Smoking,

29 Fed. Reg. 8324, 8355 (July 2, 1964); and rose to prominence when men-

tioned in a footnote in Federal Trade Commission v. Sperry & Hutchinson

Co., 405 U.S. 233, 244–45 n.5, 92 S. Ct. 898, 31 L. Ed. 2d 170 (1972). The

decades since have seen a move away from the cigarette rule at the federal

level. See Ulbrich v. Groth, 310 Conn. 375, 474–77, 78 A.3d 76 (2013) (Zarella,

J., concurring in part and dissenting in part); 12 R. Langer et al., supra,

§ 2.2, pp. 39–45. That move culminated with a revision of the FTC Act by

Congress in 1994, which codified the limitations on the FTC’s authority to

regulate unfair practices. See Federal Trade Commission Act Amendments

of 1994, Pub. L. No. 103-312, § 9, 108 Stat. 1691, 1695, codified at 15 U.S.C.

§ 45 (n) (1994). This court has characterized the federal standard for unfair

trade practices contained therein as ‘‘a more stringent test known as the

substantial unjustified injury test,’’ under which ‘‘an act or practice is unfair

if it causes substantial injury, it is not outweighed by countervailing benefits

to consumers or competition, and consumers themselves could not reason-

ably have avoided it.’’ Artie’s Auto Body, Inc. v. Hartford Fire Ins. Co., 317

Conn. 602, 622 n.13, 119 A.3d 1139 (2015).

The defendants have not asked us to reexamine our continued application

of the cigarette rule as the standard governing unfair trade practice claims

brought under CUTPA, and, therefore, the issue is not presently before us.

We recognize, however, that a question exists as to whether the cigarette

rule should remain the guiding rule as a matter of state law. See, e.g., id.,

(‘‘[i]n light of our conclusion . . . that the plaintiffs’ CUTPA claim fails

even under the more lenient cigarette rule, it is unnecessary for us to decide

whether that rule should be abandoned in favor of the federal test’’); Ulbrich

v. Groth, supra, 310 Conn. 429 (declining to review ‘‘the defendants’ unpre-

served claim that the cigarette rule should be abandoned in favor of the

substantial unjustified injury test’’); State v. Acordia, Inc., 310 Conn. 1, 29

n.8, 73 A.3d 711 (2013) (declining to ‘‘address the issue of the viability of

the cigarette rule until it squarely has been presented’’). At the same time,

notwithstanding the questions raised in those decisions, we have continued

to apply the cigarette rule as the law of Connecticut; see, e.g., Landmark

Investment Group, LLC v. CALCO Construction & Development Co., 318

Conn. 847, 880, 124 A.3d 847 (2015); and, even though we have flagged the

issue for reexamination by the legislature; see Artie’s Auto Body, Inc. v.

Hartford Fire Ins. Co., supra, 317 Conn. 622 n.13; the legislature has contin-

ued to acquiesce in our application of the cigarette rule.

In any event, even if we were to adopt the current federal standard

governing unfair advertising, it would not bar the plaintiffs’ CUTPA claims,

as they have alleged that the defendants engaged in trade practices that

caused substantial, unavoidable injury and that were not outweighed by

countervailing benefits. Still, on remand, the defendants are not foreclosed

from arguing that a different standard should govern the plaintiffs’

CUTPA claims.

47 Although the Ninth Circuit construed the predicate exception more

narrowly, that court also rejected a reading that would limit predicate stat-

utes to those that pertain exclusively to the sale or marketing of firearms,

recognizing that other statutes that regulate ‘‘sales and manufacturing activi-

ties’’ could qualify. Ileto v. Glock, Inc., supra, 565 F.3d 1134; see also id.,

1137 (legislative history indicates intent to restrict liability to ‘‘statutory

violations concerning firearm[s] regulations or sales and marketing regula-

tions’’ [emphasis added]). In Ileto, the Ninth Circuit held that the California

laws at issue did not qualify as predicate statutes, but it reached that conclu-

sion primarily because (1) California had codified its common law of tort,

which remained subject to judicial evolution; id., 1135–36; and (2) during

the legislative debates, members of Congress had referenced that very case

as an example of one that PLCAA would preclude. Id., 1137. In other words,

the fact the California statutes at issue were, in a sense, merely general tort

theories masquerading as statutes meant that the plaintiffs’ claims were

precisely the sort that Congress intended to preempt.

48 See In re Colt Industries Operating Corp., 84 F.T.C. 58, 61–62 (1974);

In re Browning Arms Co., 80 F.T.C. 749, 752 (1972); In re Ithaca Gun Co.,

78 F.T.C. 1104, 1107 (1971).

49 In another Connecticut case, Ganim v. Smith & Wesson Corp., supra,

258 Conn. 313, the plaintiffs asserted CUTPA claims similar to those at

issue in the present case, alleging, among other things, that misleading and

unscrupulous firearms advertising contributed to gun violence. Id., 334–35.

Because the municipal plaintiffs lacked standing, however, we did not rule

on the validity of their CUTPA claims. See id., 343, 373.

A CUTPA violation also was alleged on the basis of conduct similar to

that at issue in the present case in Wilson v. Midway Games, Inc., 198 F.

Supp. 2d 167 (D. Conn. 2002). In that case, the plaintiff’s son had been

stabbed to death by a friend who had become obsessed with a violent

interactive video game. Id., 169. The plaintiff alleged, among other things,

that the defendant manufacturer of that game violated CUTPA by aggres-

sively and inappropriately marketing the game to a vulnerable adolescent

audience. See id., 175–76. The court dismissed the CUTPA claim for failure

to comply with CUTPA’s statute of limitations. Id., 176. In Izzarelli v. R.J.

Reynolds Tobacco Co., 117 F. Supp. 2d 167, 170–71 (D. Conn. 2000), by

contrast, the court denied a motion to dismiss the plaintiff’s claim that

the defendant violated CUTPA by unethically marketing tobacco products

to minors.

50 See, e.g., Melton v. Century Arms, Inc., 243 F. Supp. 3d 1290, 1306 (S.D.

Fla. 2017) (defective design action in which plaintiffs stated cognizable claim

under Florida unfair trade practice law that, among other things, advertising

falsely represented that AK-47 rifles are safe); Beretta U.S.A. Corp. v. Federal

Ins. Co., 117 F. Supp. 2d 489, 490, 492 (D. Md. 2000) (firearms manufacturer

sought defense and indemnification in underlying state actions alleging,

among other things, that manufacturer falsely advertised that gun ownership

and possession increased one’s security), aff’d, 17 Fed. Appx. 250 (4th Cir.

2001); People v. Arcadia Machine & Tool, Inc., Docket No. 4095, 2003 WL

21184117, *15, 22, 26–27 (Cal. Super. April 10, 2003) (granting summary

judgment for defendant manufacturers because plaintiffs failed to present

evidence that [1] reasonable consumers would be misled by defendants’

advertisements, or [2] California public policy disapproved of marketing

firearms to children, but allowing case to proceed against defendant distribu-

tors accused of advertising banned assault weapons), aff’d sub nom. In re

Firearm Cases, 126 Cal. App. 4th 959, 992, 24 Cal. Rptr. 3d 659 (2005);

Opinions, N.M. Atty. Gen. No. 77-23 (July 19, 1977) p. 149 (advertising illegal

sale of firearms in liquor establishment would constitute unfair or deceptive

trade practice); see also FN Herstal, S.A. v. Clyde Armory, Inc., 123 F.

Supp. 3d 1356, 1376 (M.D. Ga. 2015) (trademark infringement action), aff’d,

838 F.3d 1071 (11th Cir. 2016), cert. denied, U.S. , 137 S. Ct. 1436,

197 L. Ed. 2d 649 (2017); American Shooting Sports Council, Inc. v. Attorney

General, 429 Mass. 871, 875, 711 N.E.2d 899 (1999) (attorney general may

regulate firearms sales and marketing pursuant to state unfair trade practice

law in order to address sale of products that do not perform as warranted,

including those that pose safety and performance issues, as well as those

that legislature has defined as unlawful).

51 See, e.g., In re MACE Security International, Inc., 117 F.T.C. 168,

182 (1994) (advertisements made unsubstantiated claims that single, poorly

directed spray of self-defense chemical would instantly stop assailants); In

re Benton & Bowles, Inc., 96 F.T.C. 619, 622–23 (1980) (advertisements

depicting children riding bicycles unsafely or illegally); In re AMF, Inc.,

supra, 95 F.T.C. 313–14 (advertisements representing young children riding

bicycles and tricycles in improper, unsafe or unlawful manner); In re Mego

International, Inc., supra, 92 F.T.C. 189–90 (advertisements depicting chil-

dren using electrical toys and appliances near water without adult supervi-

sion); In re Uncle Ben’s, Inc., supra, 89 F.T.C. 136 (advertisements depicting

children attempting to cooking food without close adult supervision); In re

Hudson Pharmaceutical Corp., 89 F.T.C. 82, 86–88 (1977) (advertisements

that might induce children to take excessive amounts of vitamin supple-

ments); In re General Foods Corp., 86 F.T.C. 831, 840 (1975) (advertisements

depicting consumption of raw plants growing in wild or natural surround-

ings); but see J. Vernick et al., ‘‘Regulating Firearm Advertisements That

Promise Home Protection: A Public Health Intervention,’’ 277 JAMA 1391,

1396 (1997) (for unstated reasons, FTC did not act on request by various

advocacy groups to adopt rules regulating firearm advertising).

52 Since that time, the FTC also has taken an interest in the marketing of

violent video games to children. See generally Federal Trade Commission,

Report to Congress, supra, 2009 WL 5427633.

53 As we previously noted; see footnote 47 of this opinion; although the

Ninth Circuit has construed the predicate exception more narrowly than

has the Second Circuit, CUTPA also might well qualify as a predicate statute

under the standard articulated in the Ninth Circuit’s decision in Ileto. Specifi-

cally, the court suggested that a predicate statute must either concern ‘‘fire-

arm[s] regulations or sales and marketing regulations.’’ (Emphasis added.)

Ileto v. Glock, Inc., 565 F.3d 1137; see also id., 1134 (statutory examples of

predicate statutes ‘‘target the firearms industry specifically’’ or ‘‘pertain

specifically to sales and manufacturing activities’’). Accordingly, insofar as

CUTPA specifically regulates commercial sales activities and is, therefore,

narrower in scope and more directly applicable than the general tort and

nuisance statutes at issue in Ileto, it arguably qualifies as a predicate statute

under the standards articulated by each of the three appellate courts to

have construed the federal statute.

54 Title 15 of the 2012 edition of the United States Code, § 7901 (a) (5),

provides: ‘‘Businesses in the United States that are engaged in interstate

and foreign commerce through the lawful design, manufacture, marketing,

distribution, importation, or sale to the public of firearms or ammunition

products that have been shipped or transported in interstate or foreign

commerce are not, and should not, be liable for the harm caused by those

who criminally or unlawfully misuse firearm products or ammunition prod-

ucts that function as designed and intended.’’

55 The standards embodied in the cigarette rule have been established

law—first federal, and then state—for nearly six decades. As one legal

scholar has explained, ‘‘at one time challenges to the depiction of unsafe

practices in advertisements [were] a staple of [FTC] unfairness enforcement

. . . .’’ (Footnote omitted.) S. Calkins, supra, 46 Wayne L. Rev. 1974. More-

over, even under the current federal unfairness standard, one of the FTC’s

primary areas of focus in challenging unfair trade practices has been ‘‘adver-

tising that promotes unsafe practices.’’ Id., 1962. The plaintiffs merely seek to

apply these established legal principles to the marketing of assault weapons,

products that are at least as dangerous as any that have been the subject

of prior FTC enforcement actions.

During the legislative debates, the author of PLCAA made clear that all

the law sought to preclude was novel causes of action, rather than specific

applications of established legal principles: ‘‘Plaintiffs can still argue their

cases for violations of law . . . . The only lawsuits this legislation seeks

to prevent are novel causes of action that have no history or grounding in

legal principle.’’ 151 Cong. Rec. 18,096 (2005), remarks of Senator Larry

Edwin Craig. In fact, the plaintiffs’ claims invoke a statutory cause of action

that falls squarely within established consumer protection law. See, e.g.,

Izzarelli v. R.J. Reynolds Tobacco Co., 117 F. Supp. 2d 167, 170–71, 178 (D.

Conn. 2000) (denying motion to dismiss claim that defendant violatedCUTPA

by unethically and unscrupulously marketing cigarettes to underage smokers

and encouraging minors to violate law).

56 We further note that among the stated purposes of PLCAA was ‘‘[t]o

protect the right, under the First Amendment to the Constitution, of manufac-

turers, distributors, dealers, and importers of firearms or ammunition prod-

ucts, and trade associations, to speak freely . . . .’’ 15 U.S.C. § 7901 (b) (5)

(2012). We recognize that the advertisement and marketing of goods is a

quintessential form of commercial speech under established first amend-

ment jurisprudence. See, e.g., Zauderer v. Office of Disciplinary Counsel,

471 U.S. 626, 637, 105 S. Ct. 2265, 85 L. Ed. 2d 652 (1985). At the same time,

it is equally well settled that commercial speech that proposes an illegal

transaction or that promotes or encourages an unlawful activity does not

enjoy the protection of the first amendment. See, e.g., Village of Hoffman

Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 496, 102 S. Ct. 1186,

71 L. Ed. 2d 362 (1982); Pittsburgh Press Co. v. Pittsburgh Commission on

Human Relations, 413 U.S. 376, 388–89, 93 S. Ct. 2553, 37 L. Ed. 2d 669

(1973); see also Thompson v. Western States Medical Center, 535 U.S. 357,

367, 122 S. Ct. 1497, 152 L. Ed. 2d 563 (2002); Lamar Outdoor Advertising,

Inc. v. Mississippi State Tax Commission, 701 F.2d 314, 321–22 (5th Cir.

1983). In reviewing the propriety of a motion to strike, we are obligated to

assume the truth of the facts pleaded in the operative complaint. See, e.g.,

Himmelstein v. Windsor, supra, 304 Conn. 307. The plaintiffs’ complaint in

the present case alleges that the marketing in question promoted unlawful

activity, namely, the civilian use of the XM15-E2S ‘‘as a combat weapon

. . . for the purpose of waging war and killing human beings.’’ Accordingly,

the first amendment is not implicated by the claims as set forth by the

plaintiffs in their complaint.

57 We note that the Second Circuit, in considering whether a criminal

nuisance statute of general applicability qualified as a predicate statute,

indicated that the relevant legal question is whether a statute is applicable

to the sale or marketing of firearms as applied to the particular circumstances

of the case at issue, rather than facially applicable. See New York v. Beretta

U.S.A. Corp., supra, 524 F.3d 401 (discussing whether state statute at issue

had been applied to firearms suppliers ‘‘for conduct like that complained

of by the [plaintiff]’’); id., 400–401 n.4 (in future, another statute of general

applicability may be found to govern specific conduct complained of and,

thus, qualify as predicate statute). We agree that that is the proper lens

through which to consider the question, especially with respect to a statute

such as CUTPA, which authorizes a cause of action that encompasses a

number of distinct legal theories and principles. See 12 R. Langer et al.,

supra, § 2.1, p. 13.

58 Similar principles and presumptions apply if the issue is framed in terms

of whether PLCAA preempts the plaintiffs’ CUTPA action. As the United

States Supreme Court recently explained, ‘‘[a]mong the background princi-

ples of construction that our cases have recognized are those grounded in

the relationship between the [f]ederal [g]overnment and the [s]tates under

[the United States] [c]onstitution. It has long been settled, for example, that

we presume federal statutes do not . . . preempt state law . . . .’’ (Cita-

tions omitted.) Bond v. United States, 572 U.S. 844, 857–58, 134 S. Ct. 2077,

189 L. Ed. 2d 1 (2014). The court further explained: ‘‘Closely related . . .

is the [well established] principle that it is incumbent [on] the . . . courts

to be certain of Congress’ intent before finding that federal law overrides

the usual constitutional balance of federal and state powers. . . . [W]hen

legislation affect[s] the federal balance, the requirement of clear statement

[ensures] that the legislature has in fact faced, and intended to bring into

issue, the critical matters involved in the judicial decision.’’ (Citations omit-

ted; internal quotation marks omitted.) Id., 858. These principles apply with

particular force to congressional legislation that potentially intrudes into a

field, such as advertising, that traditionally has been occupied by the states.

See Altria Group, Inc. v. Good, supra, 555 U.S. 77.

59 See, e.g., 151 Cong. Rec. 19,119 (2005), remarks of Senator John Thune;

id., 19,120, remarks of Senator Larry Edwin Craig.

60 In part III of his dissenting opinion, Justice Robinson makes a similar

point, although framed in terms of the closely related canon of noscitur

a sociis.

61 With respect to the unlawful buyer exception set forth in 15 U.S.C.

§ 7903 (5) (A) (iii) (II), the referenced subsections of 18 U.S.C. § 922 prohibit

various persons, including convicted felons, illegal immigrants, and individu-

als indicted for felonies or addicted to controlled substances, from shipping,

transporting, or receiving firearms in interstate commerce. 18 U.S.C. §§ 922

(g) and (n) (2012). The unlawful buyer exception thus directly references

federal statutes that specifically regulate trade in firearms. Although the

record keeping exception set forth in 15 U.S.C. § 7903 (5) (A) (iii) (I) does

not expressly reference any specific statute, the language of that provision

closely mirrors that of 18 U.S.C. § 922 (m), which mandates compliance

with the record keeping requirements that govern federally licensed firearms

dealers. Moreover, the legislative history indicates that Congress drafted 15

U.S.C. § 7903 (5) (A) (iii) (I) with an eye toward regulations such as 27

C.F.R. § 478.39a (a) (1), which mandates that licensed firearms dealers report

lost or stolen weapons to the federal Bureau of Alcohol, Tobacco, Firearms

and Explosives no more than forty-eight hours after the loss or theft is

discovered. See 151 Cong. Rec. 18,937–38 (2005), remarks of Senator Larry

Edwin Craig.

62 See 151 Cong. Rec. 23,262 (2005), remarks of Representative Christopher

Van Hollen; see also id., 23261 remarks of Representative Frank James

Sensenbrenner, Jr.

63 151 Cong. Rec. 23,263 (2005), remarks of Representative Christopher

Van Hollen.

64 See, e.g., 151 Cong. Rec. 19,131 (2005), remarks of Senator Barbara

Boxer; id., 23,278, remarks of Representative Rahm Emanuel.

65 See 151 Cong. Rec. 17,372–73 (2005), remarks of Senator John Reed;

id., 23,263, remarks of Representative Christopher Van Hollen; H.R. Rep.

No. 108-59, p. 98 (2003); J. Jiang, ‘‘Regulating Litigation Under the Protection

of Lawful Commerce in Arms Act: Economic Activity or Regulatory Nullity?,’’

70 Alb. L. Rev. 537, 539–40 (2007).

66 See, e.g., 151 Cong. Rec. 18,937 (2005), remarks of Senator Larry Edwin

Craig (dealer violated federal record keeping laws); id., 19,128, remarks of

Senator Kathryn Ann Bailey Hutchison (dealer violated laws); id., 23,261,

remarks of Representative Frank James Sensenbrenner, Jr. (arguing that

plaintiffs could have established record keeping violations and noting that

federal Bureau of Alcohol, Tobacco, Firearms and Explosives report docu-

mented more than 300 such violations by dealer); see also id., 18,112, remarks

of Senator John William Warner (noting that both snipers were legally barred

from purchasing firearms).

67 See, e.g., 151 Cong. Rec. 23,020 (2005), remarks of Representative Phil

Gingrey (‘‘[t]his exception would specifically allow lawsuits against firearms

dealers such as the dealer whose firearm ended up in the hands of the

[Beltway] snipers who failed to maintain a required inventory list necessary

to ensure that they are alerted to any firearm thefts’’); id., 23,273, remarks

of Representative Frank James Sensenbrenner, Jr. (‘‘this exception would

specifically allow lawsuits against firearms dealers such as the dealer whose

firearm ended up in the hands of the [Beltway] snipers’’); see also id.,

18,066, remarks of Senator Dianne Feinstein (acknowledging that ‘‘new

modifications’’ to legislation were directed toward sniper case); id., 18,941,

remarks of Senator Barbara Ann Mikulski (alluding to Beltway snipers in

debating legislation).

68 See, e.g., Ali v. Federal Bureau of Prisons, 552 U.S. 214, 226–27, 128 S.

Ct. 831, 169 L. Ed. 2d 680 (2008); Watt v. Western Nuclear, Inc., 462 U.S.

36, 44 n.5, 103 S. Ct. 2218, 76 L. Ed. 2d 400 (1983); Millsap v. Andrus, 717

F.2d 1326, 1329 n.5 (10th Cir. 1983); United States v. Kaluza, Docket No.

12-265, 2013 WL 6490341, *21–23 (E.D. La. December 10, 2013), aff’d, 780

F.3d 647 (5th Cir. 2015).

69 We further observe that, during the legislative debates surrounding

PLCAA, the author and various cosponsors of the proposed legislation

repeatedly emphasized that it must be narrowly construed and that it pro-

tects only those firearms sellers who have not engaged in any illegal or

irresponsible conduct. See, e.g., 151 Cong. Rec. 17,371 (2005), remarks of

Senator Jefferson Beauregard Sessions III, id., 18,044, remarks of Senator

Craig; id., 18,911, remarks of Senator Craig; id., 19,137, remarks of Senator

Craig; id., 23,266, remarks of Representative Clifford Bundy Stearns.

70 See S. 908, 109th Cong. (2005); H.R. 554, 109th Cong. (2005).

71 See 1 N. Singer & J. Singer, Statutes and Statutory Construction (New

Ed. 2010) § 11:14, p. 565 (‘‘[committee] report is of great significance for

purposes of statutory interpretation’’); 2A N. Singer & S. Singer, supra, § 48:6,

p. 585 (‘‘courts generally view committee reports as the ‘most persuasive

indicia’ of legislative intent’’); 2A N. Singer & S. Singer, supra, § 48:6, pp.

588–89 (legislative intent clearly expressed in committee report trumps rules

of textual construction, such as ejusdem generis).

72 Notably, all but one of the thirty-two sponsors and cosponsors of S.

908 also cosponsored S. 397, 109th Cong. (2005), the bill that ultimately

became PLCAA, and the sponsor of each bill cosponsored the other.

73 See, e.g., 151 Cong. Rec. 18,099 (2005), remarks of Senator Christopher

John Dodd.

74 151 Cong. Rec. 18,058 (2005), remarks of Senator Coburn; id., 18,084,

18,100, 19,135, remarks of Senator Craig; id., 18,941–42, remarks of Senator

Richard John Santorum; id., 19,118–19, remarks of Senator John Thune; id.,

19,119, remarks of Senator Jefferson Beauregard Sessions III; id., 23,268,

remarks of Representative Robert William Goodlatte; id., 23,278, remarks

of Representative John J. H. Schwarz; see also Cincinnati v. Beretta U.S.A.

Corp., 95 Ohio St. 3d 416, 417, 768 N.E.2d 1136 (2002) (recognizing ‘‘[the]

growing number of lawsuits brought by municipalities against gun manufac-

turers and their trade associations to recover damages associated with the

costs of firearm violence incurred by the municipalities’’).

75 The House report on a substantially similar bill introduced during the

107th Congress explained the need for the legislation as follows: ‘‘There are

a number of legal theories under which plaintiffs are arguing [that] the

firearms industry should be held responsible, including improper or defective

distribution, unsafe design or product liability, and public nuisance. To date,

every case that has been litigated to conclusion has been dismissed . . . .’’

H.R. Rep. No. 107-727, pt. 1, p. 4 (2002). Notably, wrongful marketing claims

are not identified among the category of legal theories that Congress sought

to preclude.

76 The cosponsors further emphasized that plaintiffs in the cases of concern

were seeking legislative type equitable remedies, such as purchase limits

or restrictions on sales to small gun dealers. See, e.g., 151 Cong. Rec. 18,103

(2005), remarks of Senator Baucus; see also id., 18,059, remarks of Sena-

tor Coburn.

77 See, e.g., 151 Cong. Rec. 17,370 (2005), remarks of Senator Sessions;

id., 18,942, remarks of Senator Richard John Santorum; id., 19,119, 19,129,

remarks of Senator Orrin Grant Hatch; id., 19,120, remarks of Senator Craig;

78 See, e.g., 151 Cong. Rec. 19,120 (2005), remarks of Senator Craig; id.,

23,267, remarks of Representative Mike Pence; id., 23,273, remarks of Repre-

sentative Frank James Sensenbrenner, Jr.

79 We note, however, that there also is ample precedent for recognizing

wrongful marketing claims of this sort predicated on tort theories of liability.

See, e.g., Braun v. Soldier of Fortune Magazine, Inc., 968 F.2d 1110, 1112,

1114, 1122 (11th Cir. 1992) (affirming judgment for plaintiff under Georgia

common law when defendants published advertisement in which ‘‘merce-

nary’’ offered ‘‘[discreet] gun for hire,’’ resulting in murder of plaintiffs’

decedent), cert. denied, 506 U.S. 1071, 113 S. Ct. 1028, 122 L. Ed. 2d 173

(1993); Merrill v. Navegar, Inc., supra, 26 Cal. 4th 491 and n.9 (leaving

open possibility that California law recognizes cause of action for negligent

advertising premised on immoral promotion of criminal use of firearms);

Bubalo v. Navegar, Inc., Docket No. 96 C 3664, 1997 WL 337218, *9 (N.D.

Ill. June 13, 1997) (determining that Illinois law recognizes cause of action

for negligent marketing of assault pistols for criminal purposes but holding

that plaintiffs had failed to plead sufficient facts to establish causation),

modified on other grounds, 1998 WL 142359 (N.D. Ill. March 20, 1998);

Moning v. Alfono, 400 Mich. 425, 432, 254 N.W.2d 759 (1977) (question of

whether marketing slingshots directly to children creates unreasonable risk

of harm was for jury to resolve).

80 We further observe that, during the legislative debates, supporters of

the bill that became PLCAA frequently stated that more than one half of

the states in the country already had adopted similar laws and that PLCAA

was necessary primarily to establish uniform national standards and to

ensure that frivolous actions were not filed in the minority of jurisdictions

that had not enacted such protections. See, e.g., 151 Cong. Rec. 17,370

(2005), remarks of Senator Sessions; id., 23,020, remarks of Representative

Phil Gingrey; id., 23,024, remarks of Representative Charles Foster Bass;

id., 23,265, remarks of Representative Frederick C. Boucher; see also Ileto

v. Glock, Inc., supra, 565 F.3d 1136 (noting ‘‘Congress’ intention to create

national uniformity’’ in enacting PLCAA). As the author of a virtually identical

House bill explained, ‘‘[t]he bill we are considering today is designed to

simply mirror these [s]tates and what they have done to provide a unified

system of laws . . . .’’ 151 Cong. Rec. 23,266, remarks of Representative

Clifford Bundy Stearns.

Notably, most of the state laws to which PLCAA was analogized, by their

terms, bar only actions against firearms sellers brought by municipalities

and other public entities. See H.R. Rep. No. 108-59, p. 16 (2003). Indeed,

legislators recognized that ‘‘[m]any [states’] immunity statutes only limit

the ability of cities, counties, and other local governments to sue [gun

manufacturers and sellers].’’ Id. Moreover, of the state laws that provide

broader immunity to firearms sellers, many govern only product liability

actions; see, e.g., Idaho Code Ann. § 6-1410 (2004); N.C. Gen. Stat. § 99B-

11 (2017); S.C. Code Ann. § 15-73-40 (2005); Tex. Civ. Prac. & Rem. Code

Ann. § 82.006 (b) (West 2017); Wn. Rev. Code Ann. § 7.72.030 (1) (a) (West

2017); whereas others permit actions alleging the violation of any state law.

See, e.g., Ohio Rev. Code Ann. § 2305.401 (B) (3) (West 2017); see also Mich.

Comp. Laws Serv. § 28.435 (7) (LexisNexis 2015) (‘‘[a] federally licensed

firearms dealer is not liable for damages arising from the use or misuse of

a firearm if the sale complies with this section, any other applicable law of

this state, and applicable federal law’’). Accordingly, very few of the state

laws on which legislators purported to model PLCAA would even potentially

bar the types of wrongful marketing claims at issue in the present action.

81 See, e.g., 151 Cong. Rec. 18,085 (2005), remarks of Senator Craig; id.,

18,914, remarks of Senator Kathryn Ann Bailey Hutchison; id., 18,942,

remarks of Senator Richard John Santorum.

82 See, e.g., 151 Cong. Rec. 17,370–71 (2005), remarks of Senator Sessions

(‘‘Why would the manufacturer or seller of a gun who is not negligent,

who obeys all of the applicable laws—we have a host of them—be held

accountable . . . ? . . . I don’t understand how . . . [a product that is]

sold according to the laws of the United States [can create legal liability]

for an intervening criminal act.’’); id., 17,371, remarks of Senator Sessions

(‘‘Manufacturers and sellers are still responsible for their own negligent or

criminal conduct and must operate entirely within the complex [s]tate and

[f]ederal laws. . . . Plaintiffs can go to court if the gun dealers do not follow

the law . . . .’’); id., 17,377, remarks of Senator Sessions (‘‘Under this bill,

I think it is very important to note that you can sue gun sellers and manufac-

turers who violate the law. It is crystal clear in the statute that this is so.’’);

id., 17,390, remarks of Senator Orrin Grant Hatch (‘‘This bill is not a license

for the gun industry to act irresponsibly. If a manufacturer or seller does

not operate entirely within [f]ederal or [s]tate law, it is not entitled to the

protection of this legislation.’’ [Emphasis added.]); id., 18,059, remarks of

Senator Coburn (‘‘[m]anufacturers and sellers are still responsible for their

own negligent or criminal conduct and must operate entirely within the

[f]ederal and [s]tate laws’’ [emphasis added]); id., 18,103, remarks of Senator

Baucus (bill confers immunity on ‘‘[b]usinesses that comply with all applica-

ble [f]ederal and [s]tate laws’’ [emphasis added]); id., remarks of Senator

Baucus (‘‘This bill . . . will not shield the industry from its own wrongdoing

or from its negligence . . . . For example, the bill will not require dismissal

of a lawsuit if a member of the industry breaks the law . . . .’’); id., 18,942,

remarks of Senator Richard John Santorum (PLCAA is ‘‘narrowly crafted’’

law that continues to hold responsible ‘‘individuals and companies that

knowingly violate the law’’); id., 19,118–19, remarks of Senator John Thune

(‘‘This bill . . . [protects] innocent . . . gun manufacturers and gun deal-

ers . . . who have abided by the law . . . [but] allows suits against manu-

facturers . . . for violating a law in the production or sale of a firearm

. . . . These are not arbitrary standards . . . . They are established legal

principles that apply across the board to all industries.’’); id., 23,020, remarks

of Representative Phil Gingrey (exception applies to violations of ‘‘a [s]tate

or [f]ederal statute applicable to sales or marketing’’); id., 23,265, remarks

of Representative Frederick C. Boucher (‘‘[t]he bill . . . does not affect

suits against anyone who has violated other [s]tate or [f]ederal laws’’); id.,

23,266, remarks of Representative Clifford Bundy Stearns (‘‘[T]his legislation

is very narrowly tailored to allow suits against any bad actors to proceed.

It includes carefully crafted exceptions . . . for . . . criminal behavior by

a gun maker or seller . . . .’’); id., 23,274, remarks of Representative Frank

James Sensenbrenner, Jr. (‘‘This is a carefully crafted bill. It provides immu-

nity for people who have not done anything wrong . . . but it does allow

lawsuits to proceed against the bad actors.’’); id., remarks of Representative

Steny Hamilton Hoyer (bill provides immunity ‘‘unless a manufacturer or

seller of arms acts in some wrongful or criminal way’’).

83 See, e.g., 151 Cong. Rec. 2561 (2005) (‘‘These lawsuits are based [on]

the notion that even though a business complies with all laws and sells a

legitimate product, it should be held responsible . . . . [PLCAA] specifi-

cally provides that actions based on the wrongful conduct of those involved

in the business of manufacturing and selling firearms would not be affected

by this legislation. The bill is solely directed to stopping abusive, politically

driven litigation . . . .’’ [Emphasis added.]); id., 18,057 (‘‘[t]his bill gives

specific examples of lawsuits not prohibited . . . lawsuits based on viola-

tions of [state] and [f]ederal law’’); id., 18,057–58 (‘‘Any manufacturer, distrib-

utor, or dealer who knowingly violates any [s]tate or [f]ederal law can be

held civilly liable under the bill. This bill does not shut the courthouse door.

. . . Current cases [in which] a manufacturer, distributor, or dealer know-

ingly violates a [s]tate or [f]ederal law will not be thrown out.’’ [Emphasis

added.]); id., 18,061 (‘‘[This bill] does not protect firearms . . . manufactur-

ers, sellers or trade associations from any lawsuits based on their own

negligence or criminal conduct. The bill gives specific examples of lawsuits

not prohibited. Let me repeat, not prohibited: Product liability . . . [n]egli-

gence or negligent entrustment, breach of contract, lawsuits based on a

violation of [s]tate and [f]ederal law, it is very straightforward, and we think

it is very clear.’’); id., 18,085 (‘‘Finally, this bill does not protect any member

of the gun industry from lawsuits for harm resulting from any illegal actions

they have committed. Let me repeat it. If a gun dealer or manufacturer

violates the law, this bill is not going to protect them . . . .’’ [Emphasis

added.]); id., 18,096 (‘‘[i]f manufacturers or dealers break the law or commit

negligence, they are still liable’’); id., 18,911 (‘‘this legislation [has come] to

the floor to limit the ability of junk or abusive kinds of lawsuits in a very

narrow and defined way, but in no way—and I have said it very clearly—

denying the recognition that if a gun dealer or a manufacturer acted in an

illegal or irresponsible way . . . this bill would not preempt or in any way

protect them’’); id., 19,136–37 (‘‘[t]his bill will not prevent a single victim from

obtaining relief for wrongs done to them by anyone in the gun industry’’);

id., 19,137 (‘‘This bill is intended to do one thing, and that is to end the

abuse that is now going on in the court system of America against law-

abiding American businesses when they violate no law. . . . But if that law-

abiding citizen violates the law . . . then they are liable.’’ [Emphasis

added.]).

84 Indeed, Senator Craig suggested during the legislative debates that a

law as broadly applicable as a local zoning regulation could qualify as a

predicate statute. See 151 Cong. Rec. 18,096 (2005).

85 As the amici Newtown Action Alliance and Connecticut Association of

Public School Superintendents stated in their amicus brief, at the time of

the Sandy Hook massacre, Lanza owned a computer game entitled ‘‘School

Shooting,’’ in which the player enters a school and shoots at students.

Reversed