S.C. 19832 S.C. 19833 DONNA L. SOTO, ADMINISTRATRIX OF THE ESTATE OF VICTORIA L. SOTO, ET AL, Plaintiffs/Appellants v. ) ) ) ) ) ) ) ) BUSHMASTER FIREARMS INTERNATIONAL, LLC, A/K/A, ET AL, Defendants/Appellees SUPREME COURT STATE OF CONNECTICUT April 5, 2019 MOTION TO STAY PENDING DECISION BY THE UNITED STATES SUPREME COURT Pursuant to Practice Book § 71-7, Defendants REMINGTON ARMS COMPANY, LLC (“Remington Arms Company”) and REMINGTON OUTDOOR COMPANY, INC. (“Remington Outdoor Company” and, together with Remington Arms Company, “Remington”) move the Court for an order staying proceedings pending resolution of Remington’s Petition for Writ of Certiorari before the United States Supreme Court. In support of this Motion, Remington states as follows: I. BRIEF HISTORY OF THE CASE On March 19, 2019, the Court officially released its Opinion affirming the trial court’s order striking “most of” Plaintiffs’ claims alleging that the Defendants, including Remington, were liable for wrongful death and personal injury damages resulting from Adam Lanza’s criminal misuse of a Remington firearm at Sandy Hook Elementary School on December 14, 2012. Soto v. Bushmaster Firearms Int'l, LLC, et al., 331 Conn. 53, 65-66 (2019). The Court held that Plaintiffs’ negligent entrustment claim was properly stricken under Connecticut common law. Id. at 75-85. As a result, the Plaintiffs “cannot proceed under the negligent entrustment exception to immunity under the [Protection of Lawful 1 Commerce in Arms Act, 15 U.S.C. § 7901 et seq. (“PLCAA”)].” Id. at 85. The Court further held that Plaintiffs’ allegation that the act of selling the firearm in the civilian market violated the Connecticut Unfair Trade Practices Act (“CUTPA”) “should have” been stricken because it was barred by the applicable statute of limitations. Id. at 105.1 The Court also addressed the impact of the PLCAA on Plaintiffs’ remaining claim—that certain Remington advertisements “illegally” promoted “criminal use” of firearms for “offensive civilian assaults,” and the advertisements were “a direct cause” of the shooting. Id. at 131. The Court held that this CUTPA claim is not time barred on the face of the First Amended Complaint [id. at 133, n. 56], and that it is also not barred by the PLCAA because it fit within the PLCAA’s predicate exception to immunity based on a knowing violation of a statute applicable to the sale or marketing of firearms. Id. at 116-56.2 II. SPECIFIC FACTS RELIED ON Remington is filing a Petition for Certiorari in the United States Supreme Court in accordance with the applicable Rules of the United States Supreme Court. The basis for jurisdiction in the Supreme Court is this Court’s decision on an important federal question that conflicts with a decision of a United States court of appeals. U.S. Sup. Ct. R. 10. Specifically, Remington will ask the United States Supreme Court to consider and decide whether CUTPA is the type of statute Congress intended to serve as a 1 The Court also concluded that while Plaintiffs’ “primary theory—that the legal sale of the AR-15 assault rifle to the civilian market constitutes an unfair trade practice” was barred by the statute of limitations, even “if timely presented, [that theory] also would be barred by PLCAA immunity and/or the Product Liability Act, General Statutes § 52572n(a).” See Soto, 331 Conn. at 70, n. 14. 2 The Remington advertisements Plaintiffs allege promoted “criminal use” of firearms for “offensive civilian assaults” are described in paragraphs 78 through 83 of Plaintiffs’ First Amended Complaint. A75. The actual advertisements are attached hereto as Exhibit A. 2 “predicate statute” under § 7903(5)(A)(iii) of the PLCAA, a violation of which may deprive firearm manufacturers and sellers threshold immunity against being sued. See 15 U.S.C. § 7902(a) (“A qualified civil liability action may not be brought in any Federal or State court.”). As this Court recognized, “courts that have construed the predicate exception are divided” on whether Congress intended for violation of statutes, like CUTPA, to serve as an exception to PLCAA immunity. Soto, 331 Conn. at 136. III. LEGAL GROUNDS RELIED ON The Court should stay proceedings pending the United States Supreme Court’s decision to either deny Remington’s Petition for Certiorari or its decision on the merits of the case. Practice Book § 71-7 provides: When a case has gone to judgment in the state Supreme Court and a party to the action wishes to obtain a stay of execution pending a decision in the case by the United States Supreme Court, that party shall, within twenty days of the judgment, file a motion for stay with the appellate clerk directed to the state Supreme Court. The filing of the motion shall operate as a stay pending the state Supreme Court's decision thereon. If proceedings are not stayed and Remington is required to undergo the costly and time-consuming burdens of litigation, including further discovery, motion practice and possibly trial, it will irreparably lose the intended benefit of threshold PLCAA immunity from suit. The United States Supreme Court has consistently recognized that “[u]ntil … threshold immunity is resolved, discovery should not be allowed.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). This common sense principle is based on fairness because when an immunity depends on resolution of “an essential legal question” a defendant should not have to “stand trial or face the other burdens of litigation.” Siegert v. Gilley, 500 U.S.226, 232-33 (1991) (addressing qualified immunity). 3 Immunity is, after all, “an entitlement to not stand trial or face the other burdens of litigation.” Saucier v. Katz, 533 U.S. 194, 201 (2001). “To defer the question” of whether immunity from suit exists “is to frustrate [the] significance and benefit” of the immunity provided to the defendant. Phoenix Consulting, Inc. v. Republic of Angola, 216 F.3d 36, 39 (D.C. Cir. 2000). This Court adheres to this principle and recognizes that the purpose behind immunities is protection from “having to litigate at all.” Shay v. Rossi, 253 Conn. 134, 166 (2000).3 Among the stated purposes of the PLCAA is “[t]o prevent the use of … lawsuits to impose unreasonable burdens” on firearms manufacturers. 15 U.S.C. § 7901(b)(4); see also City of New York v. Beretta, 524 F.3d 384, 394-95 (“Congress explicitly found that the third-party suits that the Act bars are a direct threat to the firearms industry,” and have a “substantial effect on the industry.”); Ileto v. Glock, Inc. 565 F.3d 1126, 1135 (9th Cir. 2009) (recognizing that the PLCAA’s primary purpose is to prohibit causes of action). Congress plainly intended that PLCAA immunity would serve as threshold immunity, not merely a defense to liability decided following discovery or trial. See Jeffries v. District of Columbia, 916 F. Supp. 2d 42, 44 (D.D.C. 2013) (PLCAA immunity is a threshold issue). Indeed, Congress provided that lawsuits pending when the PLCAA became law, which were within the PLCAA’s protection against being sued, were to “be immediately dismissed.” 15 U.S.C. § 7902(b). As the final arbiter of federal law, the Supreme Court is charged with ensuring the proper interpretation of the PLCAA and the predicate exception. See Cooper v. 3 Substantial discovery was conducted in this case before judgment was entered in Defendants’ favor by the trial court on November 1, 2016. Remington had produced thousands of pages of documents requested by Plaintiffs, and submitted witnesses for depositions on the company’s sales and marketing practices. 4 Aaron, 358 U.S. 1 (1958); see also Nitro–Lift Technologies, L.L.C. v. Howard, 133 S.Ct. 500, 503 (2012) (per curiam) (“It is this Court's responsibility to say what a [federal] statute means, and once the Court has spoken, it is the duty of other courts to respect that understanding of the governing rule of law.” (quoting Rivers v. Roadway Express, Inc., 511 U.S. 298, 312 (1994) (internal quotation marks omitted)). Indeed, this Court implicitly recognized that guidance from the Supreme Court is needed by acknowledging that congressional intent to protect firearm manufacturers from litigation is not clear, and it is “possible that Congress intended to broadly immunize firearm sellers from liability” for the conduct that Plaintiffs have alleged. Soto, 331 Conn. at 156. This Court also found that federal courts have faced “difficulties” in “attempting to distill a clear rule or guiding principle from the predicate exception.” Id. at 156-57. For this reason alone, the Court should stay proceedings and allow the parties to focus their resources on arguments before the United States Supreme Court on whether CUTPA is the type of statute that Congress intended to serve as a predicate statute under the predicate exception to PLCAA immunity. 15 U.S.C. § 7903(5)(A)(iii) IV. CONCLUSION For all of the foregoing reasons, Remington requests that this Court stay proceedings pending resolution of this case in the United States Supreme Court. 5 Respectfully submitted, /s/ Scott M. Harrington #307196 Jonathan P. Whitcomb Scott M. Harrington DISERIO MARTIN O'CONNOR & CASTIGLIONI LLP #102036 One Atlantic Street Stamford, CT 06901 (203) 358-0800 (203) 348-2321 (fax) jwhitcomb@dmoc.com sharrington@dmoc.com and James B. Vogts Andrew A. Lothson SWANSON, MARTIN & BELL, LLP 330 North Wabash, Suite 3300 Chicago, IL 60611 (312) 321-9100 (312) 321-0990 (fax) jvogts@smbtrials.com alothson@smbtrials.com Attorneys for REMINGTON ARMS CO. LLC and REMINGTON OUTDOOR COMPANY, INC. 6 CERTIFICATION OF SERVICE AND COMPLIANCE The undersigned hereby certifies, pursuant to Practice Book Section 62-7, as follows: (1) a copy of the foregoing Motion to Stay Pending Decision by The United States Supreme Court has been delivered by email and United States Mail to the counsel of record listed below on this 5th day of April, 2019; (2) the document has been redacted or does not contain any names or other personal identifying information that is prohibited from disclosure by rule, statute, court order or case law; and (3) that the document complies will all applicable Rules of Appellate Procedure. Joshua D. Koskoff Alinor C. Sterling Katherine Mesner-Hage Koskoff Koskoff & Bieder, PC 350 Fairfield Avenue Bridgeport, CT 06604 Tel. (203) 336-4421 Fax (203) 368-2244 jkoskoff@koskoff.com asterling@koskoff.com khage@koskoff.com (Counsel for Plaintiffs) Christopher Renzulli Scott Charles Allan Renzulli Law Firm LLP 81 Main Street Suite 508 White Plains, NY 10601 Tel. (914) 285-0700 Fax (914) 285-1213 crenzulli@renzullilaw.com sallan@renzullilaw.com (Counsel for Defendants, Camfour, Inc. and Camfour Holding, LLP) 7 Peter M. Berry, Esq. Berry Law LLC 107 Old Windsor Road, 2nd Floor Bloomfield, CT 06002 Tel. (860) 242-0800 Fax (860) 242-0804 firm@berrylawllc.com (Counsel for Defendants, David LaGuercia and Riverview Sales, Inc.) Evan A. Davis, Esq. Elizabeth Vicens, Esq. Howard Zelbo Cleary Gottlieb Steen & Hamilton LLP One Liberty Plaza New York, NY 10006 Tel. (212) 225-2850 Fax (212) 225-3999 edavis@cgsh.com evicens@cgsh.com hzelbo@cgsh.com (Counsel for Amicus Curiae Trinity Wall Street) Brendan K. Nelligan, Esq. Kennedy Johnson Schwab & Roberge LLC 555 Long Wharf Drive, 13th Fl. New Haven, CT 06511 Tel. (203) 865-8430 Fax (203) 865-5345 bnelligan@kennedyjohnson.com (Counsel for Amicus Curiae Applicant Law Center to Prevent Gun Violence) Brad S. Karp H. Christopher Boehning Amy J. Beaux Paul Weiss Rifkin Wharton & Garrison, LLP 1285 Avenue of the Americas New York, NY 10019-6064 (212) 373-3000 Fax: (212) 757-3990 bkarp@paulweiss.com cboehning@paulweiss.com abeaux@paulweiss.com (Counsel for Amicus Curiae Applicant Law Center to Prevent Gun Violence) 8 Vaughan Finn, Esq. Shipman & Goodwin LLP One Constitution Plaza Hartford, CT 06103-1919 Tel. (860) 251-5000 Fax (860) 251-5219 vfinn@goodwin.com (Counsel for Amicus Curiae Applicant Brady Center to Prevent Gun Violence) Thomas H. Zellerbach Orrick, Herrington & Sutcliffe LLP 1000 Marsh Road Menlo Park, CA 94025-1015 (650) 614-7446 Fax (650) 614-7401 tzellerbach@orrick.com (Counsel for Amicus Curiae Applicant Brady Center to Prevent Gun Violence) James J. Healy, Esq. Cowdery & Murphy, LLC 280 Trumbull Street Hartford, CT 06103 Tel. (860) 278-5555 Fax (860) 249-0012 jhealy@cowdery&murphy.com (Counsel for Amicus Curiae Applicants – Professors) Matthew H. Geelan Donahue, Durham & Noonan, P.C. 741 Boston Post Road Guilford, CT 06437 Tel: (203) 458-9168 Fax: (203) 458-4424 MGeelan@ddnctlaw.com (Counsel for Amicus Curiae Applicants Physicians) Michael J. Dell Kramer Levin Naftalis & Frankel LLP 1177 Avenue of the Americas New York NY 10036 (212) 715-9100 Fax: (212) 757-8000 mdell@kramerlevin.com (Counsel for Amicus Curiae Applicants Physicians) 9 Rebecca T. Dell Paul, Weiss, Rifkind, Wharton & Garrison, LLP 1285 Avenue of the Americas New York, NY 10019-6064 (212) 373-3000 Fax: (212) 757-3990 rdell@paulweiss.com (Counsel for Amicus Curiae Applicants Physicians) Jeremy Pearlman Assistant Attorney General 110 Sherman St. Hartford, CT 06105 Tel. (860) 808-5400 Fax: (860) 808-5593 Email: jeremy.pearlman@ct.gov (Counsel for Amicus Curiae Applicants State of Connecticut and Department of Consumer Protection) Daniel J. Klau, Esq. McElroy, Deutsch, Mulvaney & Carpenter LLP One State Street, 14th Floor Hartford, CT 06103 Phone: (860) 525-5175 Fax: 860-728-0401 dklau@mdmc-law.com (Counsel for Amicus Curiae Applicants CT Against Gun Violence and Tom Diaz) David N. Rosen Alexander T. Taubes David Rosen & Associates, PC 400 Orange Street New Haven, CT 06511 (203) 787-3513 (203) 789-1605 (Fax) drosen@davidrosenlaw.com ataubes@davidrosenlaw.com (Counsel for Amicus Curiae Applicants-Newtown Action Alliance and CAPSS) /s/ Scott M. Harrington #307196 Scott M. Harrington 10 EXHIBIT A access orintroducing the world's most adaptive modular rifle. The new Bushmaster? [Adaptive Combat Hillel System. not til st: tnrios you'll .m I1.l: n?rtv Iitlrt~ to . .ltit litt- t? MIR in r?rrl .o .rn l1 ?y'l??tl 9. . . .ii ElliLl Since 1913. the finest commercial AFl-style platlorm rifles to the - Unmatched quality control. As a Bushmaster is assembled. It under- world. 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