No. _____
IN THE

Supreme Court of the United States
REMINGTON ARMS CO., LLC, ET AL.,
Petitioners,
v.
DONNA L. SOTO, ADMINSTRATRIX OF THE ESTATE OF
VICTORIA L. SOTO, ET AL.,
Respondents.
On Petition for a Writ of Certiorari
to the Supreme Court of Connecticut
PETITION FOR A WRIT OF CERTIORARI
James Vogts
Andrew A. Lothson
SWANSON, MARTIN &
BELL, LLP
330 North Wabash
Ste 3300
Chicago, IL 60611
(312) 321-9100

Scott A. Keller
Counsel of Record
BAKER BOTTS L.L.P.
1299 Pennsylvania Ave. NW
Washington, DC 20004
(202) 639-7700
scott.keller@bakerbotts.com
Stephanie F. Cagniart
BAKER BOTTS L.L.P.
98 San Jacinto Blvd., Ste 1500
Austin, TX 78701
(512) 322-2500

Counsel for Petitioners
WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – W ASHINGTON, D.C. 20002

 QUESTION PRESENTED
The Protection of Lawful Commerce in Arms Act
(“PLCAA”) “generally preempts claims against
manufacturers and sellers of firearms and ammunition
resulting from the criminal use of those products.” Ileto
v. Glock, Inc., 565 F.3d 1126, 1131 (9th Cir. 2009).
However, the PLCAA provides an exception for
“action[s] in which a manufacturer or seller of a [firearm
or ammunition] knowingly violated a State or Federal
statute applicable to the sale or marketing of the
product.” 15 U.S.C. § 7903(5)(A)(iii). “This exception has
come to be known as the ‘predicate exception.’” Ileto, 565
F.3d at 1132. Crucially, this predicate exception
enumerates examples of covered statutes, and these
examples specifically regulate the firearms industry. 15
U.S.C. § 7903(5)(A)(iii)(I)-(II).
The Connecticut Supreme Court below held that the
PLCAA’s predicate exception encompasses all general
statutes merely capable of being applied to firearms sales
or marketing. In contrast, both the Second and Ninth
Circuits have rejected this broad interpretation of the
predicate exception, which would swallow the PLCAA’s
immunity rule. City of New York v. Beretta U.S.A. Corp.,
524 F.3d 384, 402-403 (2d Cir. 2008); Ileto, 565 F.3d at
1134, 1136. And the Ninth Circuit interpreted the
predicate exception even more narrowly than the Second
Circuit. See ibid.
The question presented is whether the PLCAA’s
predicate exception encompasses alleged violations of
broad, generally applicable state statutes, such as the
Connecticut Unfair Trade Practices Act, which forbids
“unfair methods of competition and unfair or deceptive
acts or practices in the conduct of any trade or
commerce.” Conn. Gen. Stat. § 42-110b(a).
(i)

 PARTIES TO THE PROCEEDINGS
1. Petitioners, Remington Arms Company, LLC and
Remington Outdoor Company, Inc., were defendants in
the trial court and appellees below.
2. The following parties, respondents on review, were
plaintiffs in the trial court and appellants below: Donna
L. Soto, administratrix of the estate of Victoria L. Soto;
Ian Hockley and Nicole Hockley, co-administrators 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, as executor of the estate of Mary Joy Sherlach and in his individual capacity; Neil Heslin and Scarlett Lewis, co-administrators 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. Natalie
Hammond was also a plaintiff in the trial court, but was
not a party to the appeal below. See App., infra, 3a n.2.
3. Camfour, Inc., Camfour Holding, Inc., Riverview
Sales, Inc., and David LaGuercia were defendants in the
trial court and appellees below. Plaintiffs voluntarily
withdrew the action as to these defendants-appellees on
April 8, 2019.
4. Bushmaster Firearms, Bushmaster Firearms Inc.,
Bushmaster Firearms International, LLC, Bushmaster
Holdings, LLC, and Freedom Group, Inc. were also
named as defendants below. Those entities no longer exist. Petitioner Remington Outdoor Company, Inc. was
formerly known as Freedom Group, Inc., and Bushmaster Firearms International, LLC was merged into and
exists only as a brand owned by petitioner Remington
Arms Company, LLC.
(ii)

 CORPORATE DISCLOSURE STATEMENT
1. There is no publicly held company that owns 10%
or more of the stock of Remington Arms Company, LLC.
Remington Arms Company, LLC is a Delaware limited
liability company. Remington Arms Company, LLC’s
sole member is FGI Operating Company, LLC (“FGI
Operating”), a Delaware limited liability company. FGI
Operating’s sole member is FGI Holding Company, LLC
(“FGI Holding”), a Delaware limited liability company.
FGI Holding’s sole member is Remington Outdoor Company, Inc., a Delaware corporation.
2. Remington Outdoor Company, Inc. is a Delaware
corporation. It has no parent corporation and no publicly
held corporation owns 10% or more of its stock.
DIRECTLY RELATED CASES
1. This case arises out of trial court proceedings in
Soto v. Bushmaster Firearms International, LLC, No.
FBT-CV-15-6048103-S (Conn. Super. Ct.), before the Superior Court of Connecticut, Judicial District of Fairfield
at Bridgeport. On October 14, 2016, the superior court
struck the amended complaint. On November 18, 2016,
the superior court entered judgment.
2. The superior court’s decision was appealed to the
Supreme Court of Connecticut, which entered judgment
on March 19, 2019 in Soto v. Bushmaster Firearms International, LLC, Nos. SC 19832, SC 19833 (Conn.). On
May 1, 2019, the Connecticut Supreme Court stayed further proceedings pending this Court’s review.
3. Previously, the trial court case was removed to the
U.S. District Court for the District of Connecticut. See
Soto v. Bushmaster Firearms Int’l, LLC, No. 3:15-cv00068-RNC (D. Conn.). The district court remanded the
case to state court on October 16, 2015.
4. There are no other directly related cases within
the meaning of this Court’s Rule 14.1(b)(iii).
(iii)

 TABLE OF CONTENTS
Question Presented ............................................................... i
Parties to the Proceedings .................................................. ii
Corporate Disclosure Statement ....................................... iii
Directly Related Cases ....................................................... iii
Table of Authorities ............................................................. v
Opinions Below ..................................................................... 1
Statement of Jurisdiction .................................................... 1
Statutory Provisions Involved ............................................ 1
Introduction .......................................................................... 2
Statement of the Case .......................................................... 5
A. Federal Protection Of Lawful Commerce
In Arms...................................................................... 5
B. Factual And Procedural History ............................ 8
Reasons for Granting the Petition.................................... 16
A. The Decision Below Exacerbates An
Acknowledged Division Of Authority................... 17
B. The Decision Below Is Wrong .............................. 23
C. This Case Is An Attractive Vehicle To
Resolve An Important And Recurring
Issue ......................................................................... 28
Conclusion ........................................................................... 33
Appendix A – Opinion of the Supreme Court of
Connecticut (Mar. 19, 2019) ............................................... 1a
Appendix B – Opinion of the Connecticut
Superior Court (Oct. 14, 2016) ...................................... 156a
Appendix C – Stay Order of the Supreme Court
of Connecticut (May 1, 2019) ......................................... 218a
Appendix D – Statutory Provisions .............................. 220a
(iv)

 TABLE OF AUTHORITIES
Page(s)
CASES
Associated Inv. Co. v. Williams Assocs. IV,
645 A.2d 505 (Conn. 1994) ................................. 21, 22, 26
BMW of N. Am., Inc. v. Gore,
517 U.S. 559 (1996) ....................................................... 29
City of Boston v. Smith & Wesson Corp.,
No. 199902590, 2000 WL 1473568
(Mass. Super. Ct. July 13, 2000) ................................. 27
City of Gary ex rel. King v. Smith &
Wesson Corp.,
801 N.E.2d 1222 (Ind. 2003) ........................................ 27
City of Gary v. Smith & Wesson Corp.,
No. 18A-CT-181 (Ind. App. May 20,
2019) .............................................................................. 32
City of Gary v. Smith & Wesson Corp.,
No. 18A-CT-181, 2019 WL 2222985
(Ind. App. May 23, 2019) ........................................17, 20
City of New York v. Beretta U.S.A. Corp.,
524 F.3d 384 (2d Cir. 2008) .................................. passim
Cox Broadcasting Corp. v. Cohn,
420 U.S. 469 (1975) ............................................ 30, 31, 32
Deal v. United States,
508 U.S. 129 (1993) ....................................................... 24

(v)

 vi
District of Columbia v. Beretta U.S.A.
Corp.,
940 A.2d 163 (D.C. 2008) .............................................. 25
District of Columbia v. Heller,
554 U.S. 570 (2008) ......................................................... 6
Estate of Cowart v. Nicklos Drilling Co.,
505 U.S. 469 (1992) ....................................................... 23
Flynt v. Ohio,
451 U.S. 619 (1981) (per curiam) ................................. 32
Fort Wayne Books, Inc. v. Indiana,
489 U.S. 46 (1989) ......................................................... 30
FTC v. Sperry & Hutchinson Co.,
405 U.S. 233 (1972) ..................................................21, 26
Ganim v. Smith & Wesson Corp.,
780 A.2d 98 (Conn. 2001) ............................... 5, 23, 28, 29
Ganim v. Smith & Wesson Corp.,
No. CV 990153198S, 1999 WL 1241909
(Conn. Super. Ct. Dec. 10, 1999) ................................. 27
Goodyear Atomic Corp. v. Miller,
486 U.S. 174 (1988) ....................................................... 31
Hamilton v. Beretta U.S.A. Corp.,
264 F.3d 21 (2d Cir. 2001) .............................................. 6
Heller v. District of Columbia,
670 F.3d 1244 (D.C. Cir. 2011) ...................................... 9
Ileto v. Glock, Inc.,
565 F.3d 1126 (9th Cir. 2009) ............................... passim

 vii
McCarthy v. Olin Corp.,
119 F.3d 148 (2d Cir. 1997) ............................................ 5
McCarthy v. Sturm, Ruger & Co.,
916 F. Supp. 366 (S.D.N.Y. 1996) ................................ 27
McDonald v. City of Chicago,
561 U.S. 742 (2010) ......................................................... 7
Merrill v. Navegar, Inc.,
28 P.3d 116 (Cal. 2001) ..............................................5, 27
Michigan v. Long,
463 U.S. 1032 (1983) ..................................................... 31
N.Y. State Rifle & Pistol Ass’n v. Cuomo,
804 F.3d 242 (2d Cir. 2015) ............................................ 8
NAACP v. AcuSport, Inc.,
271 F. Supp. 2d 435 (E.D.N.Y. 2003) ............................ 6
Obduskey v. McCarthy & Holthus LLP,
139 S. Ct. 1029 (2019) ................................................... 24
People v. Arcadia Machine & Tool, Inc.,
No. 4095, 2003 WL 21184117 (Cal.
Super. Ct. Apr. 10, 2003) .............................................. 27
San Diego Bldg. Trades Council v.
Garmon,
359 U.S. 236 (1959) ....................................................... 29
Shew v. Malloy,
994 F. Supp. 2d 234 (D. Conn. 2014) ............................. 9
Smith & Wesson Corp. v. City of Gary,
875 N.E.2d 422 (Ind. App. 2007) ............................12, 20

 viii
Sportsmen’s Boating Corp. v. Hensley,
474 A.2d 780 (Conn. 1984) ............................................ 22
United States v. Hayes,
555 U.S. 415 (2009) ..................................................16, 24
United States v. Williams,
553 U.S. 285 (2008) ....................................................... 24
Whitman v. Am. Trucking Ass’ns,
531 U.S. 457 (2001) ....................................................... 26
Wyeth v. Levine,
555 U.S. 555 (2009) ....................................................... 24
STATUTES
15 U.S.C. §7901(a) ...................................................... passim
15 U.S.C. §7901(b) ............................................... 7, 27, 30, 32
15 U.S.C. §7902(a) ...........................................................7, 32
15 U.S.C. §7902(b) ...........................................................7, 32
15 U.S.C. §7903(4) ................................................................ 7
15 U.S.C. §7903(5) ...................................................... passim
18 U.S.C. §922(g) .................................................................. 8
18 U.S.C. §922(m) ................................................................. 8
18 U.S.C. §922(n) .................................................................. 8
28 U.S.C. §1257(a) ...........................................................1, 30

 ix
Conn. Gen. Stat. §42-110b(a) .................................... 3, 10, 22
CONGRESSIONAL AUTHORITIES
151 Cong. Rec. 17,371 (2005) ........................................23, 28
151 Cong. Rec. 18,073 (2005) ............................................. 28
151 Cong. Rec. 18,942 (2005) ............................................. 32
151 Cong. Rec. 19,135 (2005) ............................................. 32
151 Cong. Rec. 23,261 (2005) ........................................27, 30
151 Cong. Rec. 23,279 (2005) ........................................27, 32
H.R. Rep. No. 109-124 (2005) .................................... passim
SECONDARY AUTHORITIES
Black’s Law Dictionary (10th ed. 2014) ........................... 23
Vivian S. Chu, Cong. Research Serv.,
R42871, The Protection of Lawful
Commerce in Arms Act: An Overview
of Limiting Tort Liability of Gun
Manufacturers (2012) .................................................... 5
John Culhane, This Lawsuit Could Change
How We Prosecute Mass Shootings,
Politico (Mar. 18, 2019) ................................................ 28

 x
Nora Freeman Egnstrom & David M.
Studdert, Stanford Law Professors on
the Lawsuit Against Gun
Manufacturers in the Wake of the
Sandy Hook Massacre, Stanford Law
School (Mar. 14, 2019), ................................................. 28
Heidi Li Feldman, Why the Latest Ruling
in the Sandy Hook Shooting Litigation
Matters, Harv. L. Rev. Blog (Mar. 18,
2018) ............................................................................... 29
Nicholas J. Johnson, Supply Restrictions
at the Margins of Heller and the
Abortion Analogue, 60 Hastings L.J.
1285 (2009) ....................................................................... 9
Timothy D. Lytton, Halberstam v. Daniel
and the Uncertain Future of Negligent
Marketing Claims Against Firearms
Manufacturers, 64 Brook. L. Rev. 681
(1997) ................................................................................ 6
Timothy D. Lytton, Tort Claims Against
Gun Manufacturers for Crime-Related
Injuries, 65 Mo. L. Rev. 1 (2000) .................................. 5
Timony D. Lytton, Suing the Gun
Industry (Timothy D. Lytton, ed., 2005) ................6, 30
Timothy D. Lytton, Sandy Hook Lawsuit
Court Victory Opens Crack in Gun
Maker Immunity Shield, The
Conversation (Mar. 15, 2019) .................................17, 28

 xi
National Consumer Law Center,
Protection in the States: A 50-State
Evaluation of Unfair and Deceptive
Trade Practice Laws (Mar. 2018) ............................... 10
Sarah Herman Peck, Cong. Research
Serv., LSB10292, When Can the
Firearm Industry Be Sued? (2019),........................... 17
Recent Legislation, Protection of Lawful
Commerce in Arms Act, Pub. L. No.
109-02, 119 Stat. 2095 (2005), 119 Harv.
L. Rev. 1939 (2006). ........................................................ 6
Restatement (Third) of Torts §14 (2005) ......................... 25

 PETITION FOR A WRIT OF CERTIORARI
Remington Arms Company, LLC and Remington
Outdoor Company, Inc. respectfully petition for a writ of
certiorari to review the judgment of the Supreme Court
of Connecticut.
OPINIONS BELOW
The Supreme Court of Connecticut’s opinion, App.,
infra, 1a-155a, is reported at 202 A.3d 262. The superior
court’s decision to strike the amended complaint, App.,
infra, 156a-217a, is unreported, but is available at 2016
WL 8115354.
STATEMENT OF JURISDICTION
The judgment of the Supreme Court of Connecticut
was entered on March 19, 2019. On May 17, 2019, Justice
Ginsburg extended the time in which to file a petition for
a writ of certiorari to and including August 1, 2019. The
jurisdiction of this Court is invoked under 28 U.S.C.
§ 1257(a). See infra p. 30-31.
STATUTORY PROVISIONS INVOLVED
Pertinent statutory provisions are set forth in the appendix to this petition. App., infra, 220a-231a.

(1)

 2
INTRODUCTION
Congress enacted the Protection of Lawful
Commerce in Arms Act (“PLCAA”) to ensure that
firearms—so central to American society that the
Founders safeguarded their ownership and use in the
Bill of Rights—would be regulated only through the
democratic process rather than the vagaries of litigation.
Congress passed the PLCAA in 2005 in response to a
wave of lawsuits seeking to hold firearms manufacturers
and sellers liable “for the harm caused by the misuse of
firearms by third parties, including criminals.” 15 U.S.C.
§ 7901(a)(3).
Although those lawsuits were largely unsuccessful on
the merits, Congress found that the mere “possibility of
imposing liability on an entire industry for harm that is
solely caused by others is an abuse of the legal
system , * * * threatens the diminution of a basic
constitutional right and civil liberty, invites the dissembly
and destabilization of other industries and economic
sectors lawfully competing in the free enterprise
system * * * , and constitutes an unreasonable burden on
interstate and foreign commerce.” 15 U.S.C. § 7901(a)(6).
In other words, this flood of litigation put the firearms
industry “in danger of being overwhelmed by the cost of
defending itself.” H.R. Rep. No. 109-124, at 12 (2005).
Congress therefore granted manufacturers and sellers
broad immunity from lawsuits seeking damages and
other relief “resulting from the criminal or unlawful
misuse” of firearms by third parties. 15 U.S.C.
§ 7903(5)(A).
Immunity under the PLCAA is subject to certain
limited exceptions. One such exception allows actions to
proceed where a manufacturer or seller “knowingly
violated a State or Federal statute applicable to the sale
or marketing of [a firearm or ammunition],” and the

 3
violation proximately caused the plaintiff’s harm. 15
U.S.C. § 7903(5)(A)(iii). This is known as the “predicate
exception” because liability requires a knowing violation
of a “predicate statute.” City of New York v. Beretta
U.S.A. Corp., 524 F.3d 384, 390 (2d Cir. 2008).
By a 4-3 margin, the Connecticut Supreme Court
gave the predicate exception such a broad reading that it
threatens to swallow the PLCAA’s immunity rule. Over a
vigorous dissent, that court wrote that the predicate
exception’s text is most naturally read to encompass any
statute merely “capable of being applied” to firearms
sales or marketing. App., infra, 62a-63a. This
interpretation has been rejected by every federal court of
appeals to address the question, and the Second Circuit
described it as “a far too-broad reading” that “would
allow the predicate exception to swallow the statute.”
City of New York, 524 F.3d at 403. Furthermore, the
Connecticut Supreme Court held that the predicate
exception encompasses alleged violations of the
Connecticut Unfair Trade Practices Act (“CUTPA”), a
sweeping prohibition on “unfair or deceptive acts or
practices in the conduct of any trade or commerce.”
Conn. Gen. Stat. § 42-110b(a) (emphasis added). In
addition to conflicting with the Second Circuit’s analysis
in City of New York, the decision is irreconcilable with
the Ninth Circuit’s holding and analysis in Ileto v. Glock,
Inc., 565 F.3d 1126 (9th Cir. 2009). Ileto found it “likely
that Congress had in mind only * * * statutes that
regulate manufacturing, importing, selling, marketing,
and using firearms or that regulate the firearms
industry,” and concluded that the PLCAA preempts
“general tort theories of liability” regardless of whether
they are codified. Id. at 1136.
This Court’s review is urgently needed. As the
Connecticut Supreme Court acknowledged, courts have
faced profound “difficulties * * * in attempting to distill a

 4
clear rule or guiding principle from the predicate
exception.” App., infra, 105a. The decision below
dramatically exacerbates confusion over the predicate
exception’s scope and creates a clear split of authority.
It is also plainly wrong. This case is an archetypical
example of the kind of lawsuit Congress sought to
preempt, raising claims indistinguishable from those
routinely asserted in the pre-PLCAA litigation that
drove Congress to respond. The PLCAA’s operative text,
Congress’s findings and purposes, and the PLCAA’s
legislative history all point to one conclusion: General
unfair trade practices laws like CUTPA are not
encompassed by the predicate exception.
Because all states have analogous unfair trade
practices laws, the decision below threatens to unleash a
flood of lawsuits nationwide that would subject lawful
business practices to crippling litigation burdens. This
Court must intervene now to resolve the deep conflict
over the predicate exception’s scope, correct the
Connecticut Supreme Court’s misreading of the PLCAA,
and prevent a renewed wave of lawsuits of precisely the
kind Congress sought to preempt.

 5
STATEMENT OF THE CASE
A. Federal Protection Of Lawful Commerce In
Arms
1. Enacted in 2005, “[t]he PLCAA generally preempts
claims against manufacturers and sellers of firearms and
ammunition resulting from the criminal use of those
products.” Ileto, 565 F.3d at 1131. “The PLCAA was
considered and passed at a time when victims of shooting
incidents, as well as municipalities * * * , brought civil
suits seeking damages and injunctive relief against outof-state manufacturers and sellers of firearms.” Vivian S.
Chu, Cong. Research Serv., R42871, The Protection of
Lawful Commerce in Arms Act: An Overview of
Limiting Tort Liability of Gun Manufacturers 1 (2012),
https://bit.ly/2IfFZnE. These lawsuits were founded on a
variety of theories, including “strict liability for
abnormally dangerous activities,” “strict product liability
for defective design,” “negligent marketing,” “public
nuisance,” and “deceptive trade practices.” Timothy D.
Lytton, Tort Claims Against Gun Manufacturers for
Crime-Related Injuries, 65 Mo. L. Rev. 1, 6-50 (2000).
The unifying theme of these disparate theories of
liability was an attempt to hold “manufacturers,
distributors, dealers, and importers of firearms” liable
for “harm caused by the misuse of firearms by third
parties, including criminals.” 15 U.S.C. § 7901(a)(3). Some
of those lawsuits were brought by victims of crimes
committed with firearms, including several mass
shootings. See, e.g., Ileto, 565 F.3d at 1130; McCarthy v.
Olin Corp., 119 F.3d 148, 151 (2d Cir. 1997); Merrill v.
Navegar, Inc., 28 P.3d 116, 119 (Cal. 2001). Others were
brought by municipalities and officials. See, e.g., City of
New York, 524 F.3d at 388-389; Ganim v. Smith &
Wesson Corp., 780 A.2d 98, 101-102 (Conn. 2001).

 6
These lawsuits were generally unsuccessful on the
merits.1 Nonetheless, “the claims were still damaging to
the gun industry.” Recent Legislation, Protection of
Lawful Commerce in Arms Act, Pub. L. No. 109-02, 119
Stat. 2095 (2005), 119 Harv. L. Rev. 1939, 1940 (2006).
Some “municipal leaders pressed on regardless of their
chance of success, spending taxpayers’ money in a war of
attrition against the firearms industry.” Ibid. Cases
commonly dragged on for years with onerous discovery
and lengthy trials. See, e.g., Hamilton v. Beretta U.S.A.
Corp., 264 F.3d 21 (2d Cir. 2001); NAACP v. AcuSport,
Inc., 271 F. Supp. 2d 435 (E.D.N.Y. 2003). As a result, the
industry was “in danger of being overwhelmed by the
cost of defending itself against these suits.” H.R. Rep.
No. 109-124, at 12 (2005).
2. a. In response, Congress enacted the PLCAA.
Congress found that firearms are already “heavily
regulated under Federal, State, and local laws,” 15
U.S.C. § 7901(a)(4), and that lawful manufacturers and
sellers “are not, and should not, be liable for the harm
caused by those who criminally or unlawfully misuse
firearm products,” id. § 7901(a)(5). Finding that the
Second Amendment protects an individual right to keep
and bear arms, id. §§ 7901(a)(1)-(2); accord District of
Columbia v. Heller, 554 U.S. 570, 592 (2008), Congress
concluded that lawsuits seeking to hold law-abiding
firearms manufacturers and sellers liable for third-party
1

See, e.g., Timothy D. Lytton, Suing the Gun Industry 5 (Timothy D.
Lytton ed., 2005) (“The great majority [of such lawsuits] have been
dismissed or abandoned prior to trial, and of the few favorable jury
verdicts obtained by plaintiffs, all but one have been overturned on
appeal.”); Timothy D. Lytton, Halberstam v. Daniel and the
Uncertain Future of Negligent Marketing Claims Against
Firearms Manufacturers, 64 Brook. L. Rev. 681, 681 (1997) (noting
widespread failure of suits).

 7
criminal acts are “an abuse of the legal system” and
“threaten[] the diminution of a basic constitutional right
and civil liberty.” 15 U.S.C. § 7901(a)(6). Congress acted
to “prevent the use of such lawsuits to impose
unreasonable burdens on interstate and foreign
commerce,” id. § 7901(b)(4); to preserve citizens’ “access
to a supply of firearms and ammunition for all lawful
purposes,” id. § 7901(b)(2); and to protect the rights of
citizens under the Fourteenth Amendment, id.
§ 7901(b)(3); accord McDonald v. City of Chicago, 561
U.S. 742 (2010). Additionally, Congress acted to protect
the First Amendment rights of firearms manufacturers
and sellers, 15 U.S.C. § 7901(b)(5)—rights that are
implicated by the marketing claims here.
b. The text of the PLCAA broadly provides that a
“civil action or proceeding or an administrative
proceeding brought by any person against a
manufacturer or seller of a [firearm or ammunition]
product * * * for damages * * * or other relief, resulting
from the criminal or unlawful misuse of [the] product by
the person or a third party” “may not be brought in any
Federal or State court.” 15 U.S.C. §§ 7902(a), 7903(5)(A);
see id. § 7903(4). Any actions pending on the PLCAA’s
enactment date “shall be immediately dismissed.” Id.
§ 7902(b).
This broad immunity is subject to certain limited
exceptions. See 15 U.S.C. § 7903(5)(A)(i)-(vi). For
example, the PLCAA permits actions “against a seller for
negligent entrustment or negligence per se.” Id. at
§ 7903(5)(A)(ii).
As relevant here, the PLCAA permits “action[s] in
which a manufacturer or seller of a [firearm or
ammunition] knowingly violated a State or Federal
statute applicable to the sale or marketing of the
product, and the violation was a proximate cause of the

 8
harm for which relief is sought.” Id. § 7903(5)(A)(iii)
(emphasis added). This exception “has come to be known
as the ‘predicate exception,’ because a plaintiff not only
must present a cognizable claim,” but also “a knowing
violation of a ‘predicate statute,’” Ileto, 565 F.3d at
1132—that is, a statute “applicable to the sale or
marketing of [firearms],” 15 U.S.C. § 7903(5)(A)(iii).
The PLCAA expressly describes two types of claims
that come within the predicate exception: First, where
the manufacturer or seller knowingly falsified or failed to
keep “record[s] required to be kept under Federal or
State law with respect to the [firearm or ammunition],”
or was involved in making a false statement with regard
to the lawfulness of a firearms transfer. 15 U.S.C.
§ 7903(5)(iii)(I); see 18 U.S.C. § 922(m). Second, where the
manufacturer or seller “aided, abetted, or conspired” to
sell a firearm or ammunition that it knew or had
reasonable cause to know the “actual buyer * * * was
prohibited from possessing” under federal law. 15 U.S.C.
§ 7903(5)(iii)(II); see 18 U.S.C. §§ 922(g), (n).
B. Factual And Procedural History
1. In December 2012, twenty-year-old Adam Lanza
shot and killed his mother Nancy, and then he drove to
Sandy Hook Elementary School in Newtown, Connecticut, where he shot and killed twenty first-grade children
and six adults, and wounded two other staff members before taking his own life. See App., infra, 1a. The Sandy
Hook shooting shocked the country, and multiple states,
including Connecticut, enacted new gun-control legislation. See N.Y. State Rifle & Pistol Ass’n v. Cuomo, 804
F.3d 242, 247-251 (2d Cir. 2015).
Lanza carried out the attack primarily with a Bushmaster XM-15 rifle that his mother Nancy lawfully purchased in March 2010. App., infra, 10a. The XM-15 is a
version of the AR-15 rifle, “the best-selling rifle type in

 9
the United States.” Nicholas J. Johnson, Supply Restrictions at the Margins of Heller and the Abortion Analogue, 60 Hastings L.J. 1285, 1296 (2009); see Heller v.
District of Columbia, 670 F.3d 1244, 1261 (D.C. Cir.
2011) (“[I]n 2007,” AR-15 rifles “accounted for 5.5 percent of all firearms, and 14.4 percent of all rifles, produced in the U.S. for the domestic market.”). AR-15 rifles
are popular for hunting and home defense, and they are
“the leading type of firearm used in” competitions such
as “national matches * * * sponsored by the congressionally established Civilian Marksmanship Program.” Shew
v. Malloy, 994 F. Supp. 2d 234, 245 n.40 (D. Conn. 2014),
rev’d in part on other grounds sub nom. N.Y. State Rifle
& Pistol Ass’n v. Cuomo, 804 F.3d 242.
2. In December 2014, family members of several of
the Sandy Hook victims brought suit in Connecticut state
court against the rifle’s manufacturer (Remington), its
wholesale distributor, and its retail seller, seeking damages and unspecified injunctive relief. App., infra, 3a-4a
& nn.3-5.2 “The gravamen of [respondents’] claims, which
[were] brought pursuant to the state’s wrongful death
statute,” was that the defendants “(1) negligently entrusted to civilian consumers an AR-15 style assault rifle
that is suitable for use only by military and law enforcement personnel, and (2) violated the Connecticut Unfair
Trade Practices Act (CUTPA), through the sale or
wrongful marketing of the rifle.” Id. at 4a-5a (footnotes
and citation omitted).
The primary thrust of respondents’ complaint was
that “the AR-15 * * * is ‘grossly ill-suited’ for legitimate
civilian purposes,” and that “any commercial sale of [such
rifles] to civilian users” should be deemed “negligent en2

One of the surviving victims was also named as a plaintiff, but she
later abandoned her claims. App., infra, 3a n.2.

 10
trustment” or “an unfair trade practice” per se. App., infra, 11a, 24a, 79a-80a. Respondents contended that “the
AR-15 is a military grade weapon” and “the risks associated with selling the weapon to the civilian market far
outweigh any potential benefits.” Id. at 11a.
The complaint also alleged that Remington “knowingly marketed, advertised, and promoted” the rifle “for civilians to use to carry out offensive, military style combat
missions against their perceived enemies.” App., infra,
2a. Purported examples of such allegedly “unethical, oppressive, immoral and unscrupulous” marketing included
advertisements connecting the rifles to the military by
picturing a soldier against the backdrop of an American
flag; featuring the slogan “[w]hen you need to perform
under pressure, Bushmaster delivers”; describing one
Bushmaster model (not the XM-15) as “the ultimate
combat weapons system”; and using the phrase, “[f]orces
of opposition, bow down.” Id. at 12a-13a.3 The complaint
also alleged that Remington “further promoted” the XM15 as a “combat weapon” by designating a 30-round magazine—which was lawful in Connecticut in 2012—as a
“standard” accessory in catalogues. Id. at 12a.
Respondents claimed that Remington’s marketing violated CUTPA—a general unfair trade practices law
that, like similar laws in other states,4 broadly forbids
“unfair competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” Conn.
Gen. Stat. § 42-110b(a). Respondents did not allege that
3

The advertisements containing these images and slogans are
appended to Remington’s motion for stay in the Connecticut
Supreme Court. See Remington Defs.’ Conn. S. Ct. Mot. to Stay, Ex.
A (Apr. 5, 2019).
4
See generally Nat’l Consumer Law Ctr., Consumer Protection in
the States: A 50-State Evaluation of Unfair and Deceptive Practices
Laws (Mar. 2018), https://bit.ly/2K8eaMe.

 11
either Adam or Nancy Lanza saw any of the referenced
advertisements or catalogues. But the complaint referred
to Adam Lanza’s general interest in the military and violent videogames, and it made the bare allegation that he
chose the XM-15 from his mother’s firearms collection
“not only for its functional capabilities,” but “also because
of its marketed association with the military.” App., infra, 13a.
3. The superior court struck the complaint for failure
to state a claim. App., infra, 216a-217a. It concluded that
respondents’ negligent entrustment allegations failed
under both state law and the federal PLCAA. Id. at 217a.
While the court determined that CUTPA qualified as a
law “applicable to the sale or marketing of [firearms]”
under the predicate exception, id. at 198a-199a, it also
held that respondents failed to state a valid CUTPA
claim because they alleged no business relationship with
the defendants and thus lacked standing to assert their
claim. Id. at 201a.
4. a. By a 4-3 margin, the Connecticut Supreme
Court affirmed in part and reversed in part. Like the superior court, it rejected respondents’ negligent entrustment claims on state-law grounds. App., infra, 14a-24a.
But the Connecticut Supreme Court disagreed with the
superior court that respondents were required to allege a
business relationship to state a CUTPA claim. Id. at 27a40a. The court concluded that respondents’ “first theory
of CUTPA liability—that the sale of AR-15s to the civilian population is ipso facto unfair”—was “barred under
the CUTPA statute of limitations.” Id. at 27a & 8a n.14.
However, the court held that respondents’ “alternative”
theory that the XM-15 was “advertis[ed] and market[ed]
* * * in an unethical, oppressive, immoral, and unscrupulous manner” was timely. Id. at 26a-27a, 45a-47a. Although the court acknowledged that proving the requisite
“causal link” between Remington’s advertising and the

 12
“lethality of the Sandy Hook massacre” may “prove to be
a Herculean task,” it concluded that respondents had
standing to proceed on their wrongful advertising theory.
Id. at 38a-39a.
b. The court then turned to the dispositive question
of federal law: whether “CUTPA qualifies as * * * a predicate statute, that is, a ‘statute applicable to the sale or
marketing of [firearms]’” within the meaning of the
PLCAA. App., infra, 60a (quoting 15 U.S.C.
§ 7903(5)(A)(iii)) (emphasis in original).
A bare majority of four justices concluded that
CUTPA—a general unfair trade practices statute of
“broad scope,” App., infra, 31a-32a—qualifies as a
PLCAA predicate statute. The majority concluded that
“the principal definition of ‘applicable’ is simply ‘[c]apable
of being applied.’” Id. at 62a (citation omitted). And it
noted that “[t]he only state appellate court to have reviewed the predicate exception construed it in this manner.” Ibid. (citing Smith & Wesson Corp. v. City of Gary,
875 N.E.2d 422 (Ind. App. 2007)).
The majority acknowledged that “the defendants’ interpretation” of the statutory text was “not implausible”
and that other “dictionary definitions of ‘applicable’
might support a narrower reading” that would exclude
CUTPA. App., infra, 61a-62a. But it reasoned that “[i]f
Congress had intended to limit the scope of the predicate
exception to violations of statutes that are directly, expressly, or exclusively applicable to firearms,” it could
have explicitly “used such language.” Id. at 63a.
The majority purported to find support in City of
New York, 524 F.3d 384. There, the Second Circuit rejected the “capable of being applied” interpretation and
held that the predicate exception did not encompass alleged violations of a New York public nuisance statute,
which applied broadly to “unreasonable” conduct. Id. at

 13
399, 403-404. But the Second Circuit also stated that the
predicate “exception * * * encompass[es]” statutes that
“courts have applied to the sale and marketing of firearms,” or that “do not expressly regulate firearms but
that clearly can be said to implicate the[ir] purchase and
sale.” Id. at 404. According to the majority below,
CUTPA fit those categories, App., infra, 68a-69a, because CUTPA had long been applied to “wrongful advertising” under what the court called the “cigarette rule” (a
reference to lawsuits over deceptive tobacco advertising),
id. at 71a; and, in the majority’s view, had been “applied
to the sale of firearms,” id. at 70a.
The majority acknowledged that, in Ileto, 565 F.3d
1126, “the Ninth Circuit ha[d] construed the predicate
exception more narrowly than * * * the Second Circuit,”
and had held that the predicate exception did not encompass statutes codifying “general tort theories.” App., infra, 69a n.47, 74a n.53. But the majority suggested that
CUTPA “might * * * arguably qualif[y] as a predicate
statute” under the Ninth Circuit’s “more narrow[] * * *
standards” because “CUTPA specifically regulates commercial sales activities and is, therefore, narrower in
scope and more directly applicable than * * * general tort
and nuisance statutes.” Id. at 74a n.53.
The majority brushed aside the view of other courts
and jurists that its “capable of being applied” interpretation would allow “the exception [to] swallow the rule,”
App., infra, 79a-80a (quoting Ileto, 565 F.3d at 1155 (Berzon, J., concurring in part and dissenting in part)); cf.
City of New York, 524 F.3d at 403 (similar), noting that
there still “must be at least a colorable claim that a defendant has, in fact, violated some statute,” id. at 80a.
While the majority “assume[d], without deciding,” that
the predicate exception might not “fully” encompass certain statutes that “reasonably might be implicated in any
civil action arising from gun violence,” it did not view

 14
“[respondents]’ wrongful marketing allegations” as falling within that narrow category. Id. at 80a-81a. It reasoned that the allegations against “one specific family of
firearms sellers” in this case were sufficiently “narrowly
framed” to “proceed without crippling PLCAA.” Id. at
81a.
The majority nonetheless acknowledged that it was
“possible that Congress intended to immunize firearms
sellers” from claims of this kind. App., infra, 105a. It
therefore suggested that “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.” Ibid.
c. Justice Robinson dissented, joined by Justices Vertefeuille and Elgo. They concluded that “the predicate
exception encompasses only those statutes that specifically govern the sale and marketing of firearms and ammunition, as opposed to generalized unfair trade practices statutes” like CUTPA. App., infra, 112a.
The dissent determined that the PLCAA’s “statutory
text and legislative history” provided “no support” for
the aspects of the Second Circuit’s City of New York
opinion on which the majority relied. App., infra, 120a121a. It “decline[d] to follow the analysis of the Second
Circuit’s ultimately unpersuasive decision,” considering
its “expansive holding” to be “simply inconsistent” with
the “the relevant statutory text and legislative history,”
which “suggests a narrower reading of th[e] exception.”
Id. at 120a-122a. The dissent found the Ninth Circuit’s
“more restrictive” analysis “more instructive.” Id. at 123a
& n.10.
The dissent reasoned that “[t]he very specific examples of firearms laws that Congress provides in the predicate exception strongly suggest that it intended only
those statutes that are specific to the firearms trade to be

 15
considered ‘applicable to the sale or marketing of [firearms].’” App., infra, 130a (citation omitted). It noted that
this understanding was supported by the legislative history, which contained explicit references to “deceptive
marketing” and advertising-related lawsuits as among
the types preempted. Id. at 138a & n.18 (emphasis omitted).
The dissent observed that Congress was especially
“concern[ed] about vague standards.” App., infra, 139a.
And it rejected “the logic behind the majority’s premise
that Congress intended the [PLCAA] to preempt state
common-law claims, but leave undisturbed even broader
sources of liability under state unfair trade practice statutes like CUTPA.” Id. at 147a n.21.
d. On Remington’s motion, the Connecticut Supreme
Court stayed its judgment pending this Court’s review.
App., infra, 218a-219a.

 16
REASONS FOR GRANTING THE PETITION
Courts of appeals have faced great “difficulties * * *
attempting to distill a clear rule or guiding principle from
the predicate exception,” App., infra, 105a, about what
laws qualify as “statute[s] applicable to the sale or
marketing of [firearms].” 15 U.S.C. § 7903(5)(A)(iii). The
resulting disarray has produced a broad range of
irreconcilable interpretations of the exception’s scope.
The Connecticut Supreme Court deepened this division,
adopting virtually wholesale the broadest possible
interpretation of “capable of being applied”—which even
the Second Circuit rejected as “a far too-broad reading,”
City of New York, 524 F.3d at 403, and which is utterly
irreconcilable with the Ninth Circuit’s Ileto decision. This
division of authority is intolerable given Congress’s
“intention to create national uniformity” with the
PLCAA, Ileto, 565 F.3d at 1136, and warrants this
Court’s immediate review.
This Court’s guidance is sorely needed. As the
dissenters below noted, lawsuits like this one are
precisely the kind the PLCAA was enacted to prevent.
The Connecticut Supreme Court’s decision misreads the
PLCAA’s text and drastically undermines Congress’s
“manifest purpose,” United States v. Hayes, 555 U.S.
415, 427 (2009)—to provide manufacturers broad
immunity from liability for third-party criminal misuse of
firearms, subject only to carefully limited exceptions.
The decision will have immediate and severe
consequences, exposing the firearms industry to costly
and burdensome litigation based on theories of liability
virtually indistinguishable from those that motivated the
PLCAA’s enactment. States across the nation have broad
consumer protection statutes comparable to CUTPA.
Thus, as a leading scholar on firearm-manufacturer
liability has explained, the decision below will “unleash a

 17
flood of lawsuits across the country.” Timothy D. Lytton,
Sandy Hook Lawsuit Court Victory Opens Crack in Gun
Maker Immunity Shield, Conversation (Mar. 15, 2019),
https://bit.ly/2F44rEz (Lytton, Sandy Hook Lawsuit).
Other courts are already citing the decision below to
support sweeping liability. See City of Gary v. Smith &
Wesson Corp., No. 18A-CT-181, 2019 WL 2222985, at *13
(Ind. App. May 23, 2019) (citing decision in reaffirming
broadest reading of predicate exception). The decision
could easily prompt claims directed at all aspects of a
firearm manufacturer’s business activities—not just
advertising, but product design, distribution, and sales.
Allowing this case simply to proceed will inflict on the
firearms industry the very harm the PLCAA was meant
to address—massive, unsustainable litigation expenses,
which threaten to destroy an industry that makes lawful
products whose possession and use the Constitution
specifically protects. Only this Court’s immediate review
can avoid that consequence.
A. The
Decision
Below
Exacerbates
An
Acknowledged Division Of Authority
“[C]ourts have not coalesced around a single
interpretation of the predicate exception.” Sarah Herman
Peck, Cong. Research Serv., LSB10292, When Can the
Firearm
Industry
Be
Sued?
5
(2019),
https://bit.ly/2ZWZwyN. In Ileto, 565 F.3d 1126, the
Ninth Circuit “construed the predicate exception more
narrowly” than the Second Circuit did in City of New
York, 524 F.3d 384. App., infra, 69a n.47. Tellingly, each
of those decisions issued over a vigorous dissent
regarding both the exception’s overall scope and its
application to the case at hand. The Connecticut Supreme
Court further deepened this division by reading the
predicate exception even more broadly than the Second
Circuit—once again, in a sharply divided decision

 18
eliciting a vigorous dissent. And it created a clear split of
authority, reaching a decision irreconcilable with Ileto.
1. In City of New York, the Second Circuit addressed
the applicability of the predicate exception to a state
nuisance statute prohibiting “unreasonable” conduct that
“creates or maintains a condition which endangers
[public] safety or health.” 524 F.3d at 399 & n.1 (citation
omitted). The court determined that the word
“applicable” could not, in context, be interpreted simply
to mean “capable of being applied,” which would result in
“a far too-broad reading” that “would allow the predicate
exception to swallow the statute.” Id. at 403.
But the Second Circuit then “decline[d] to foreclose
the possibility that, under certain circumstances, state
courts may apply a statute of general applicability to the
type of conduct that the City complains of, in which case
such a statute might qualify as a predicate statute.” Id. at
400. The court held that the exception encompasses
statutes that (1) “expressly regulate firearms,” (2)
“courts have applied to the sale and marketing of
firearms,” or (3) “do not expressly regulate firearms but
that clearly can be said to implicate the purchase and sale
of firearms.” Id. at 404. Noting that that the nuisance law
at issue there was “a statute of general applicability that
has never been applied to firearms suppliers for conduct
like that complained of by the City,” it held the predicate
exception inapplicable. Id. at 399, 404.
Judge Katzmann dissented. He concluded that “the
word ‘applicable’ ” unambiguously means “capable of
being applied.” Id. at 405 (Katzmann, J., dissenting). He
took issue with the majority’s apparent reliance on how
courts had applied state liability statutes in the past,
which he characterized as both nonsensical and arbitrary,
id. at 406-407, and objected that “the majority’s unclear
language and rationale” left “future courts * * * without

 19
guidance” about the scope of the predicate exception, id.
at 406.
The Ninth Circuit addressed a nearly identical
question in Ileto: whether the predicate exception
encompassed California negligence and nuisance
statutes. 565 F.3d at 1132-1133. The Ninth Circuit also
squarely rejected the “all-encompassing” “capable of
being applied” interpretation. Id. at 1133-1134. However,
unlike the Second Circuit, the Ninth Circuit gave no
weight to how a particular state statute had been applied
in the past. It interpreted the word “applicable” in light
of the “illustrative predicate statutes” provided in the
exception’s text, as well as Congress’s statement of
findings and purposes. Id. at 1134.
Judge Graber, joined by Judge Reinhardt, thus
concluded it was “more likely that Congress had in mind
only * * * statutes that regulate manufacturing,
importing, selling, marketing, and using firearms or that
regulate the firearms industry.” Id. at 1136 (emphasis
added). And the majority held that “Congress intended
to preempt * * * general tort theories of liability”
regardless of whether they were statutorily codified.
Ibid. The majority observed that the statutes at issue
were “subject to the same ‘judicial evolution’ as ordinary
common-law claims,” and that such “‘judicial evolution’
was precisely the target of the PLCAA.” Ibid. (citing 15
U.S.C. § 7901(a)(7)).
Judge Berzon dissented in relevant part. She too
found it “clear” that “the predicate exception cannot
possibly encompass every statute that might be ‘capable
of being applied’ to the sale or manufacture of
firearms”—an “exception [that] would swallow the rule.”
Id. at 1155 (Berzon, J., concurring in part and dissenting
in part). Nevertheless, she took issue with the majority’s
“conclu[sion] that Congress likely had only [a] narrow

 20
subset of laws (apparently, firearm-specific laws and
regulations) in mind when drafting the predicate
exception.” Id. at 1159. Judge Berzon embraced a third
reading instead: that the predicate exception
encompasses “statutes capable of being applied to the
sale or marketing of firearms,” but only when
“litigants * * * allege that defendants ‘knowingly violated’
those statutes,” id. at 1159-1160 (quoting 15 U.S.C.
§ 7903(5)(A)(iii))—even if the statutes themselves do not
“require[] knowing conduct,” id. at 1156.
The confusion over the predicate exception does not
end there. In City of Gary, 875 N.E.2d 422—which the
majority below cited favorably—the Indiana Court of
Appeals “conclude[d] that the predicate exception is
unambiguous,” id. at 434, endorsed the “capable of being
applied” interpretation, id. at 431 (citation omitted), and
allowed a lawsuit alleging violations of Indiana’s public
nuisance statute to proceed. Although arguably dicta,
that court has since reaffirmed its broad reading, citing
the decision below. See City of Gary v. Smith & Wesson
Corp., No. 18A-CT-181, ---N.E.3d---, 2019 WL 2222985,
at *13. This plainly conflicts with the Second and Ninth
Circuits’ interpretations. See Ileto, 565 F.3d at 1135 n.5
(discussing City of Gary).
The decision below deepens the division. The
Connecticut Supreme Court adopted the maximalist
“capable of being applied” interpretation that the Second
and Ninth Circuits rejected, but which Judge Katzmann
and the Indiana Court of Appeals embraced. App., infra,
62a-63a. The majority below declined to recognize any
further limiting principle, dismissing concerns that its
decision would “swallow the rule” by observing that
“there must be at least a colorable claim” that “some
statute” was violated. Id. at 80a.

 21
2. Seeking to downplay the conflict and insulate this
case from review, the Connecticut Supreme Court halfheartedly asserted that CUTPA “might * * * arguably”
qualify as a predicate statute under Ileto. App., infra, 74a
n.53. But the decision below directly conflicts with the
Ninth Circuit’s holding and analysis, which extends “the
predicate exception” only to “firearm-specific laws and
regulations.” Ileto, 565 F.3d at 1155, 1159 (Berzon, J.,
concurring in part and dissenting in part) (discussing
majority opinion). And Ileto squarely held that
“Congress intended to preempt general tort theories of
liability” whether statutorily codified or not, emphasizing
Congress’s textually manifest purpose to foreclose
common-law-style “judicial evolution.” Id. at 1136.
Just like the statutes in Ileto, CUTPA imposes broad
civil liability under an “elusive * * * standard of fairness.”
Associated Inv. Co. v. Williams Assocs. IV, 645 A.2d 505,
511 (Conn. 1994) (quoting FTC v. Sperry & Hutchinson
Co., 405 U.S. 233, 244 (1972)). Just like the statutes in
Ileto, “CUTPA * * * establish[es] a fairness standard
designed to grow and broaden * * * to meet
circumstances as they arise,” ibid. (internal quotation
marks omitted)—making it “subject to the same ‘judicial
evolution’ as ordinary common-law claims” that “w[ere]
precisely the target of the PLCAA,” Ileto, 565 F.3d at
1136. And just like the statutes in Ileto, CUTPA is not
remotely comparable to the highly specific “illustrative
predicate statutes” Congress provided, id. at 1134, such
as record-keeping laws for firearms sales.
Largely relying on a sentence fragment plucked from
the Ninth Circuit’s discussion of legislative history, the
majority below attempted to distinguish CUTPA from
“the general tort and nuisance statutes” in Ileto on the
grounds that it “specifically regulates commercial sales
activities and is, therefore, narrower in scope.” App.,
infra, 74a n.53. That distinction does not hold water. To

 22
be sure, the Ninth Circuit suggested the predicate
exception might include not only statutes that “pertain
exclusively to the firearms industry,” but may also
encompass certain other laws that “pertain specifically to
sales and manufacturing activities.” Ileto, 565 F.3d at
1134. But even if the Ninth Circuit contemplated
including laws besides those exclusively applicable to
firearms, it would sweep no more broadly than provisions
comparable to Congress’s highly specific “illustrative
predicate statutes.” Ibid. As both the majority and the
dissent below recognized, CUTPA is not remotely “of
that same ilk.” App., infra, 84a; see also id. at 127a
(Robinson, J., dissenting in part).
The majority’s characterization of CUTPA as
somehow “narrower in scope” than the “general tort * * *
statutes” at issue in Ileto, App., infra, 74a n.53, is
likewise without merit. By the majority’s own admission,
CUTPA is a law of “broad scope and remedial nature,”
id. at 31a-32a, applying general fairness standards to any
and all “acts or practices in the conduct of any trade or
commerce,” Conn. Gen. Stat. § 42-110b(a). The majority
emphasizes that CUTPA “specifically regulates
commercial sales activities,” App., infra, 74a n.53, but
that is a meaningless limitation in this context. Every
lawsuit the PLCAA was intended to preempt would
target commercial activities. In fact, “CUTPA’s standard
for liability” is more “flexible” than “common law tort
principles,” Sportsmen’s Boating Corp. v. Hensley, 474
A.2d 780, 787 (Conn. 1984), which the Ninth Circuit found
preempted in Ileto. Furthermore, “the private cause of
action under CUTPA * * * provides a remedy for a wider
range of business conduct than does the common law.”
Associated Inv. Co., 645 A.2d at 512 (emphasis added).
While the Ninth Circuit placed some weight on the
fact that “members of Congress had referenced” Ileto
itself “as an example of [a lawsuit] that PLCAA would

 23
preclude,” App, infra, 69a n.47 (citing Ileto, 565 F.3d at
1137), that is no distinction. Although the PLCAA’s
legislative history contains no reference to this case (filed
nine years after its enactment), it has the next closest
thing: specific references to the City of Bridgeport’s
lawsuit against firearms manufacturers for “unfair and
deceptive advertising under CUTPA.” Ganim, 780 A.2d
at 112-113. See 151 Cong. Rec. 17,371 (statement of Sen.
Sessions) (2005); H.R. Rep. No. 109-124, at 8-9 (2005)
(report for virtually identical predecessor bill). There is
no way to reconcile the decision below with Ileto.
B. The Decision Below Is Wrong
The decision below is also plainly wrong. The
PLCAA’s text, Congress’s express statement of purpose
and findings, and the legislative history all point to the
same conclusion: General unfair trade practices laws like
CUTPA are not encompassed within the PLCAA’s
predicate exception.
1. In analyzing the predicate exception, “the
beginning point must be the language of the statute.”
Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469,
475 (1992). As a general matter, the word “applicable”
can either mean “[c]apable of being applied” or—
especially in reference to “a rule, regulation, law, etc.”—
“affecting or relating to a particular person, group, or
situation; having direct relevance.” Black’s Law
Dictionary 120 (10th ed. 2014) (emphases added). Both
senses are common in “everyday usage.” Ileto, 565 F.3d
at 1133-1134 & n.4.
The majority below found the broader “capable of
being applied” definition more plausible, noting that
Congress could have explicitly employed narrowing
language. App., infra, 62a-63a. But it is a “fundamental
principle of statutory construction (and, indeed, of
language itself) that the meaning of a word cannot be

 24
determined in isolation, but must be drawn from the
context in which it is used.” Deal v. United States, 508
U.S. 129, 132 (1993). Here, every contextual indicator
supports a narrower reading that would exclude generic
unfair trade practices laws like CUTPA.
Congress provided specific examples of statutes
“applicable” to firearms sales or marketing, “both of
which specifically relate to firearms.” App., infra, 84a-85a
& n.61. A narrower reading is therefore supported “by
the commonsense canon of noscitur a sociis.” United
States v. Williams, 553 U.S. 285, 294 (2008). Indeed, if
Congress had used the word “applicable” so broadly as to
encompass even laws that apply generic fairness
standards to any and all commercial activity, “there
would be no need to list examples at all,” Ileto, 565 F.3d
at 1134; the specific examples would be “superfluous,”
Obduskey v. McCarthy & Holthus LLP, 139 S. Ct. 1029,
1037 (2019).5
More fundamentally, construing the predicate
exception to include any statute capable of being applied
to firearms “would frustrate Congress’ manifest
purpose,” Hayes, 555 U.S. at 427, “allow[ing] the
predicate exception to swallow the statute,” City of New
York, 524 F.3d at 403, and making a hash of the PLCAA’s
primary provision. It would effectively rewrite the
PLCAA’s preemption of a broad range of “civil action[s]
or proceeding[s] or * * * administrative proceeding[s]”
for “any relief” (including “fines” or “penalties”), 15
U.S.C. § 7903(5)(A), into a limited bar on certain claims
5

The majority also erred by relying on the principle that federal
statutes should not be construed to supersede historic state police
powers unless Congress’s purpose to do so is clear. See App., infra,
82a-84a. That presumption has no application where, as here, the
entire purpose of the legislation is to “pre-empt state-law causes of
action.” Wyeth v. Levine, 555 U.S. 555, 565 n.3 (2009).

 25
grounded solely in the common law. This interpretation
renders much of Congress’ basic definition of covered
“civil liability action[s]” inoperative, Accord District of
Columbia v. Beretta U.S.A. Corp., 940 A.2d 163, 171 n.6
(D.C. 2008); in fact, it would even render some of the
other exceptions largely or wholly superfluous, such as
the exception for “negligence per se,” 15 U.S.C.
§ 7903(5)(A)(ii). See Restatement (Third) of Torts § 14.
Yet the majority below adopted the “capable of being
applied” interpretation virtually wholesale. Its sole
gesture toward a limiting principle was to “assume,
without deciding” that the predicate exception might not
“fully” encompass certain statutes broad enough to “be
implicated in any civil action arising from gun violence.”
App., infra, 80a (emphasis added). The majority did not
even attempt to locate a basis for that ad hoc (and
extraordinarily narrow) limitation in the PLCAA’s text.
Ultimately, even this meager and hypothetical limitation
was too much for the majority below. Recognizing that
CUTPA itself is a statute that “reasonably might be
implicated” in “virtually any action seeking to hold
firearms sellers liable for third-party gun violence,” ibid.,
the majority concluded that the “proper lens” through
which to analyze the predicate exception was “whether a
statute is applicable to the sale or marketing of firearms
as applied to the particular circumstances of the case at
issue,” id. at 80a n.57 (emphasis added). The idea
appears to be the application of the predicate exception
will turn on how “narrowly” the theory of liability is
“framed” in a particular case, id. at 81a—an approach
that would allow plaintiffs to easily plead around the
PLCAA’s provisions.
2. Interpreting the predicate exception to include
broad unfair trade practices laws like CUTPA makes a
mockery of Congress’s stated purpose and findings.
Congress found that “[l]awsuits have been commenced”

 26
against firearms companies “seek[ing] money damages
and other relief for the harm caused by the misuse of
firearms by third parties, including criminals,” 15 U.S.C.
§ 7901(a)(3)—that is, lawsuits precisely like this one. And
it found—contrary to the theories advanced in those
lawsuits—that firearm companies “are not, and should
not, be liable for the harm caused by those who
criminally or unlawfully misuse” firearms. Id. at
§ 7901(a)(5). To be sure, the PLCAA recognizes some
exceptions. But Congress does not “hide elephants in
mouseholes,” Whitman v. Am. Trucking Ass’ns, 531 U.S.
457, 468 (2001)—such as by using ambiguous language to
exempt claims under broad unfair trade practices laws
existing in all 50 states.
As the Ninth Circuit noted in Ileto, Congress was
particularly concerned with vague standards subject to
“judicial evolution.” 565 F.3d at 1136. Congress intended
to foreclose the risk that “a maverick judicial officer or
petit jury” might “expand civil liability” in unexpected
ways. 15 U.S.C. § 7901(a)(7). Congress acted to prevent
such unanticipated “expan[sion] [of] civil liability.” Ibid.
This goal would be eviscerated by exempting state unfair
trade practices laws that, like CUTPA, invite “application
of broadly defined * * * and ‘elusive * * * standard[s] of
fairness,’ ” Associated Inv. Co., 645 A.2d at 511 (quoting
Sperry & Hutchinson, 405 U.S. at 244)—and that are, if
anything, “broader” and “more flexible” than the
common law, id. at 510-511. It defies reason that
“Congress intended * * * to preempt state common-law
claims, but leave undisturbed even broader sources of
liability under state unfair trade practice statutes.” App.,
infra, 147a n.21 (Robinson, J., dissenting in part). This
lawsuit is particularly antithetical to Congress’s purpose
because it employs a broad and vague state statute to
penalize advertising when Congress explicitly sought to

 27
protect manufacturers and sellers’ “right[s] under the
First Amendment.” 15 U.S.C. § 7901(b)(5).
3. The legislative history eliminates any doubt. The
lawsuits the PLCAA was enacted to address commonly
included claims of negligent, unfair, or deceptive
advertising, as well as claims under state unfair trade
practices statutes. See, e.g., McCarthy v. Sturm, Ruger &
Co., 916 F. Supp. 366, 369 (S.D.N.Y. 1996) (negligent
advertising), aff’d sub nom. McCarthy v. Olin Corp., 119
F.3d 148 (2d Cir. 1997); Merrill, 28 P.3d at 121, 130-132
(negligent/unlawful advertising); People v. Arcadia
Machine & Tool, Inc., No. 4095, 2003 WL 21184117, at *7
(Cal. Super. Ct. Apr. 10, 2003) (advertising-based claims
under California’s Unfair Competition Law), aff’d sub
nom. In re Firearm Cases, 24 Cal. Rptr. 3d 659, 663-664,
667-668 (Cal. Ct. App. 2005); Ganim v. Smith & Wesson
Corp., No. CV 990153198S, 1999 WL 1241909, at *1
(Conn. Super. Ct. Dec. 10, 1999) (deceptive advertising
and unfair sales practices claims under CUTPA), aff’d
780 A.2d 98 (Conn. 2001); City of Gary ex rel. King v.
Smith & Wesson Corp., 801 N.E.2d 1222, 1247 (Ind. 2003)
(deceptive advertising); City of Boston v. Smith &
Wesson Corp., No. 199902590, 2000 WL 1473568, at *3
(Mass. Super. Ct. July 13, 2000) (false and deceptive
advertising).
Every one of those lawsuits is referenced in the
legislative history. See, e.g., H.R. Rep. No. 109-124, at 6
n.1, 7 n.15, 8-9 & n.36, 11 n.48 (2005) (citing all lawsuits
above);6 151 Cong. Rec. 23,279 (2005) (statement of Rep.
Stearns) (citing City of Gary). During the debates,
Senator Hatch specifically criticized lawsuits “citing
6

House Report 109-124 concerned H.R. 800, a bill of the same name
that “contain[ed] the same legal reform provisions [as] * * * S. 397,”
151 Cong. Rec. 23,261 (2005) (statement of Rep. Sensenbrenner), the
bill that was ultimately passed into law.

 28
deceptive marketing” and “claim[ing] that sellers give the
false impression that gun ownership enhances personal
safety.” 151 Cong. Rec. 18,073 (2005) (emphases added).
Most tellingly, Senator Sessions singled out the City of
Bridgeport’s lawsuit against firearm makers—which
asserted, among other claims, a cause of action “for
unfair and deceptive advertising under CUTPA,” Ganim,
780 A.2d at 112 (emphasis added)—as an example of a
lawsuit that would not be permitted to go forward. 151
Cong. Rec. 17,371 (2005); accord H.R. Rep. No. 109-124,
at 8-9 & n.36 (discussing Ganim).
C. This Case Is An Attractive Vehicle To Resolve
An Important And Recurring Issue
1. a.
The importance of this issue cannot be
overstated. “Every state has consumer protection
statutes more-or-less like Connecticut’s.” Nora Freeman
Engstrom & David M. Studdert, Stanford Law
Professors on the Lawsuit Against Gun Manufacturers
in the Wake of the Sandy Hook Massacre, Stanford Law
School (Mar. 14, 2019), https://stanford.io/2XYOEyS. The
decision below thus threatens to “create a substantial
opening in the immunity firearm manufacturers” have
under the PLCAA. Ibid. It provides a veritable “‘how-to’
guide” for “[o]ther states [to] use their own unfair trade
practices laws” and “a blueprint for overcoming * * * the
PLCAA.” John Culhane, This Lawsuit Could Change
How We Prosecute Mass Shootings, Politico (Mar. 18,
2019), https://politi.co/2YnZj6S.
As a leading academic scholar on firearms liability
concluded, it is “likely that gun violence victims will bring
similar claims elsewhere,” using the decision below as a
template, to “potentially unleash a flood of lawsuits
across the country.” Lytton, Sandy Hook Lawsuit,
https://bit.ly/2F44rEz. Nor would such lawsuits be
limited to “unfair advertising” claims. CUTPA and other

 29
state unfair trade practices laws broadly prohibit
“unfair” or “deceptive” acts or practices, encompassing a
multitude of “distinct legal theories,” App., infra, 80a
n.57, effectively indistinguishable from pre-PLCAA
lawsuits. See, e.g., Ganim, 780 A.2d at 112-113 (alleging
CUTPA violations for, among other things, “unfair and
deceptive advertising” of handguns, “fail[ing] to
incorporate feasible safety devices,” and “sell[ing]
excessive numbers of guns”).
Private lawsuits are just the beginning. “To
appreciate the wider import” and “possible far-reaching
implications” of the decision below,” one must recognize
that consumer protection laws like CUTPA provide state
attorneys general with sweeping authority, such as the
power to bring “suit[s] for damages, declaratory and
injunctive relief.” Heidi Li Feldman, Why the Latest
Ruling in the Sandy Hook Shooting Litigation Matters,
Harv.
L.
Rev.
Blog
(Mar.
18,
2018),
https://bit.ly/2GSu104. This decision thus revives the
“scenario of many states, municipalities, and individuals
pursuing gun industry actors through [unfair or
deceptive acts and practices] provisions.” Ibid. The
availability of lawsuits seeking retrospective liability
under vague and evolving fairness standards in even a
single state will create heavy “burdens on the interstate
market” for firearms, and impose de facto gun-control
“policy choice[s] on neighboring States.” BMW of N.
Am., Inc. v. Gore, 517 U.S. 559, 571 (1996); accord 15
U.S.C. § 7901(a)(8) (finding that firearms lawsuits
“undermin[e] * * * comity between the sister States”).
The impact on the firearms industry of even a few courts
following the Connecticut Supreme Court would be
profound.
b. “Regulation can be as effectively exerted through
an award of damages as through * * * preventive relief.”
San Diego Bldg. Trades Council v. Garmon, 359 U.S.

 30
236, 247 (1959). “For some plaintiffs and their attorneys,
filing lawsuits against the gun industry represents a way
to pursue gun control without having to face the obstacles
of legislative politics.” Timothy D. Lytton, Suing the Gun
Industry at 154. This case illustrates the point. The crux
of respondents’ complaint was that “the AR-15 * * * is
‘grossly ill-suited’ for legitimate civilian purposes.” App.,
infra, 11a. And respondents’ brief below criticized the
supposedly “impotent regulatory scheme” that “fails to
mandate” stricter gun control. Pls.’ Ct. S. Ct. Br. 8.
Congress enacted the PLCAA to prevent such impact
litigation, see 15 U.S.C. § 7901(a)(8), which it viewed as an
“abuse of the legal system,” id. § 7901(a)(6), that
threatened citizens’ access to “firearms and ammunition
for all lawful purposes,” id. § 7901(b)(2). See also, e.g., 151
Cong. Rec. 23,261 (2005) (statement of Rep.
Sensenbrenner) (describing lawsuits as “attempts to
accomplish through litigation what has not been achieved
by legislation”). The decision below opens the door for a
renewed campaign of nationwide litigation inviting courts
to decide contentious gun-policy issues under
indeterminate common-law-style standards.
2. a. That the decision below did not end trial-court
litigation here is no barrier to this Court’s jurisdiction.
Under Cox Broadcasting Corp. v. Cohn, 420 U.S. 469,
482-483 (1975), this Court deems a judgment final under
28 U.S.C. § 1257(a) when (1) “the federal issue has been
finally decided in the state courts,” (2) “the party seeking
review here might prevail on the merits on nonfederal
grounds,” insulating the federal issue from further
review, (3) “reversal of the state court on the federal
issue would be preclusive of any further litigation on the
relevant cause of action,” and (4) “a refusal immediately
to review the state-court decision might seriously erode
federal policy.” See also Fort Wayne Books, Inc. v.

 31
Indiana, 489 U.S. 46, 54-57 (1989); Goodyear Atomic
Corp. v. Miller, 486 U.S. 174, 178-180 (1988).
This case perfectly fits those criteria. First, the
Connecticut Supreme Court finally decided the federal
issue—whether CUTPA qualifies as a “statute applicable
to the sale or marketing of [firearms]” under the
PLCAA. 15 U.S.C. § 7903(5)(A)(iii). Second, Remington
might prevail on nonfederal grounds: notably, its
advertising may not be found wrongful under CUTPA, or
respondents may be unable to prove the causal link
between the allegedly wrongful advertising and the
harms suffered—an undertaking the court below
acknowledged “may prove to be a Herculean task.” App.,
infra, 38a. If so, the Connecticut Supreme Court’s
construction of the PLCAA would be insulated from
federal review. See Cox, 420 U.S. at 482; Michigan v.
Long, 463 U.S. 1032, 1037-1039 (1983). Third, reversal on
the issue would extinguish respondents’ last surviving
claim, “preclu[ding] * * * further litigation.” Cox,
420 U.S. at 482-483.
Finally, and critically, refusal to immediately review
the state-court decision would “seriously erode federal
policy.” Cox, 420 U.S. at 483. This is no ordinary PLCAA
case: It is widely recognized as a bellwether for the
future of firearms litigation nationwide. See supra pp. 2829. This Court has never addressed the PLCAA,
including the predicate exception. And the Connecticut
Supreme Court’s decision marks the first time a state
court of last resort (or a federal court of appeals) has held
that a state law of general applicability—let alone one
with close analogues across the nation—would qualify as
a predicate statute. “[A] failure to decide the question
now will leave the [firearms industry] operating in the
shadow” of that decision for years. Cox, 420 U.S. at 486.
Indeed, plaintiffs have already relied on the Connecticut
Supreme Court’s decision arguing for a broad reading of

 32
the predicate exception. See Appellant’s Notice of
Additional Authority, City of Gary v. Smith & Wesson
Corp., No. 18A-CT-181 (Ind. App. May 20, 2019).
“Delaying final decision of the [PLCAA issue] until
after trial,” Cox, 420 U.S. at 485-486, is unacceptable.
Congress enacted the PLCAA not simply to ensure that
manufacturers would escape final judgments imposing
liability for third-party crimes; Congress sought to
address the crippling effects of litigation—“liability
actions commenced * * * by” governmental and private
plaintiffs, which it viewed as unfounded and abusive. 15
U.S.C. § 7901(a)(7). Congress wanted “[t]o prevent the
use of such lawsuits to impose unreasonable burdens on”
lawful commerce in arms. Id. at § 7901(b)(4) (emphasis
added); cf., e.g., 151 Cong. Rec. 18,942 (2005) (statement
of Sen. Santorum) (“[T]hese suits—even while
unsuccessful—drain significant resources from these
companies * * *. We cannot allow this trend to
continue.”).
The PLCAA’s text thus focuses not on substantive
rules of liability, but rather on which “action[s] may not
be brought,” 15 U.S.C. § 7902(a), and mandates that
covered lawsuits pending on the PLCAA’s enactment
date “shall be immediately dismissed,” id. § 7902(b); see
151 Cong. Rec. 23,279 (2005) (statement of Rep. Stearns)
(“One of the primary purposes of this legislation is to not
force defendants to incur the additional costs and delay of
filing motions and arguing, and certainly not to go
through costly trial and appeals of cases that the bill
requires to be dismissed forthwith.”); accord 151 Cong.
Rec. 19,135 (2005) (statement of Sen. Craig) (similar).
Given the PLCAA’s clear policy, there is no question
that “identifiable federal statutory * * * policies” would
“be[] undermined by the continuation of the litigation in
the state courts.” Flynt v. Ohio, 451 U.S. 619, 622 (1981)

 33
(per curiam). Another decision allowing this Court to
review the predicate exception may take years if it ever
arrives. Either way, Remington would irreparably lose
the intended benefit of the PLCAA’s threshold immunity
from suit. The burdens of discovery alone would be
severe. And defendants in lawsuits seeking to apply the
Connecticut Supreme Court’s unprecedented holding to
other states’ unfair trade practices statutes would face
the same burdens. Only immediate review can prevent
those harms.
b. Finally, this case is an especially attractive vehicle
for resolving the widespread confusion over the predicate
exception. The Connecticut Supreme Court clearly
understood the high stakes, and both the majority and
the dissent exhaustively analyzed the PLCAA’s text,
purposes, and legislative history in thorough opinions
reaching opposite conclusions, separated by a single vote.
The superior court resolved the case on the pleadings, so
there are no disputed factual issues. And because further
state-court proceedings are stayed pending this Court’s
review, there is no risk that the dispute would become
moot. See App., infra, 218a-219a. This is a uniquely
suitable opportunity for this Court to resolve a recurring
issue of undoubted national importance on which the
lower courts are deeply divided.
CONCLUSION
The petition for a writ of certiorari should be granted.

 34
Respectfully submitted.
James Vogts
Andrew A. Lothson
SWANSON, MARTIN &
BELL, LLP
330 North Wabash
Ste 3300
Chicago, IL 60611
(312) 321-9100

Scott A. Keller
Counsel of Record
BAKER BOTTS L.L.P.
1299 Pennsylvania Ave. NW
Washington, DC 20004
(202) 639-7700
scott.keller@bakerbotts.com
Stephanie F. Cagniart
BAKER BOTTS L.L.P.
98 San Jacinto Blvd., Ste 1500
Austin, TX 78701
(512) 322-2500

Counsel for Petitioners
August 2019



Admitted only in Texas. Not admitted in the District of Columbia.
Practicing under the supervision of principals of the firm who are
members of the District of Columbia bar.

 APPENDIX A
Supreme Court of Connecticut.
Donna L. SOTO, Administratrix (Estate of Victoria L.
Soto), et al.
v.
BUSHMASTER FIREARMS INTERNATIONAL,
LLC, et al.
(SC 19832), (SC 19833)
 
Argued November 14, 2017
 
Officially released March 19, 2019

PALMER, J.
On December 14, 2012, twenty year old Adam Lanza
forced his way into Sandy Hook Elementary School in
Newtown and, during the course of 264 seconds, fatally
shot twenty first grade children and six staff members,
and wounded two other staff members. Lanza carried
out this massacre using a Bushmaster XM15-E2S
semiautomatic rifle that was allegedly manufactured,
distributed, and ultimately sold to Lanza’s mother by the
various defendants’ in this case. There is no doubt that
Lanza was directly and primarily responsible for this
appalling series of crimes. In this action, however, the
plaintiffs—administrators of the estates of nine of the
decedents—contend that the defendants’ also bear some
of the blame. The plaintiffs assert a number of different
legal theories as to why the defendants’ should be held
partly responsible for the tragedy. The defendants’
(1a)

 2a
counter that all of the plaintiffs’ legal theories are not
only barred under Connecticut law, but also precluded by
a federal statute, the Protection of Lawful Commerce in
Arms Act (PLCAA), Pub. L. No. 109-92, 119 Stat. 2095
(2005), codified at 15 U.S.C. §§ 7901 through 7903 (2012),
which, with limited exceptions, immunizes firearms
manufacturers, distributors, and dealers from civil
liability for crimes committed by third parties using their
weapons. See 15 U.S.C. §§ 7902 (a) and 7903 (5) (2012).
For the reasons set forth in this opinion, we agree
with the defendants’ that most of the plaintiffs’ claims
and legal theories are precluded by established
Connecticut law and/or PLCAA. For example, we
expressly reject the plaintiffs’ theory that, merely by
selling semiautomatic rifles—which were legal at the
time 1 —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
Connecticut law. Specifically, they allege that the
defendants’ knowingly marketed, advertised, and
promoted the XM15-E2S for civilians to use to carry out
offensive, military style combat missions against their
perceived enemies. Such use of the XM15-E2S, or any
weapon for that matter, would be illegal, and Connecticut
law does not permit advertisements that promote or
encourage violent, criminal behavior.
Following a
scrupulous review of the text and legislative history of
Following the Sandy Hook massacre, the legislature added the
Bushmaster 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 No. 13-3, § 25, codified at General
Statutes (2014 Supp.) § 53-202a (1) (B) (xxi).

1

 3a
PLCAA, we also conclude that Congress has not clearly
manifested an intent to extinguish the traditional
authority of our legislature and our courts to protect the
people of Connecticut from the pernicious practices
alleged in the present case. The regulation of advertising
that threatens 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 marketing
allegations. We affirm the trial court’s judgment insofar
as that court struck the plaintiffs’ claims predicated on all
other legal theories.
I
PROCEDURAL HISTORY
The plaintiffs brought the present action in 2014,
seeking damages and unspecified injunctive relief. 2 The
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 decedents” with respect to claims brought by the
administrators in their fiduciary 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

2

 4a
defendants’ include the Bushmaster defendants’
(Remington), 3 one or more of which is alleged to have
manufactured the Bushmaster XM15-E2S semiautomatic
rifle that was used in the crimes; the Camfour
defendants’, 4 distributors that allegedly purchased the
rifle from Remington 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 § 52555, 7 is that the defendants’ (1) negligently entrusted to

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 Firearms, 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 administrator 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. . . .”

 5a
civilian consumers an AR-15 style assault rifle 8 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’
complaint, contending that all of the plaintiffs’ claims are
barred by PLCAA. The defendants’ also argued that, to
the extent that the plaintiffs’ claims sound in negligent
entrustment, the plaintiffs failed to state a legally valid
negligent entrustment claim under Connecticut common
law, and, to the extent that their claims are predicated on
alleged CUTPA violations, they are legally insufficient
because, among other things, (1) the plaintiffs lack
standing to bring a CUTPA action, (2) the plaintiffs’
claims are time barred by CUTPA’s three year statute of
limitations; see General Statutes § 42-110g (f);
(3) personal injuries and death are not cognizable
CUTPA damages, and (4) the plaintiffs’ CUTPA claims
are simply veiled product liability claims and, therefore,
are barred by General Statutes § 52-572n (a), the

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 firearms. See General Statutes § 53-202a (1) (B)
(xxi); see also Merrill v. Navegar, Inc., 26 Cal. 4th 465, 470 n.3, 110
Cal. Rptr.2d 370, 28 P.3d 116 (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.
8

 6a
exclusivity 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
defendants’ arguments, the court concluded that (1) the
plaintiffs’ allegations do not fit within the common-law
tort of negligent entrustment, (2) PLCAA bars the
plaintiffs’ claims insofar as those claims sound in
negligent entrustment, and (3) the plaintiffs lack
standing to bring wrongful death claims predicated on
CUTPA violations because they never entered into a
business relationship with the defendants’. Accordingly,
the court granted in their entirety the defendants’
motions to strike the plaintiffs’ amended complaint.
On appeal, the plaintiffs challenge each of those
conclusions. 13 For their part, the defendants’ contend, as
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.
10

 7a
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 constituted
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 XM15E2S to civilians for criminal purposes, and that those
We granted permission to thirteen groups to appear and file amicus
curiae briefs in this appeal. Five of the amici have filed briefs in
support of the defendants’ position: (1) Connecticut Citizens Defense
League, Inc.; (2) Connecticut Defense Lawyers Association; (3) Gun
Owners of America, Inc., Gun Owners Foundation, United States
Justice Foundation, The Heller Foundation, and Conservative Legal
Defense and Education Fund; (4) National Rifle Association of
America, Inc.; and (5) National Shooting Sports Foundation. Eight
of the amici have filed briefs in support of the plaintiffs’ position: (1)
medical doctors Katie Bakes, William Begg, Barbara Blok, Kathleen
Clem, Christopher Colwell, Marie Crandall, Michael Hirsh, Stacy
Reynolds, Jeffrey Sankoff, and Comilla Sasson (physicians amici); (2)
The Brady Center to Prevent Gun Violence; (3) CT Against Gun
Violence and Tom Diaz; (4) Law Center to Prevent Gun Violence; (5)
Newtown Action Alliance and the Connecticut Association of Public
School Superintendents; (6) law professors Nora Freeman
Engstrom, Alexandra D. Lahav, Anita Bernstein, John J. Donohue
III, Michael D. Green, Gregory C. Keating, James Kwak, Douglas
Kysar, Stephan Landsman, Anthony J. Sebok, W. Bradley Wendel,
John Fabian Witt, and Adam Zimmerman; (7) the State of
Connecticut and the Department of Consumer Protection; and (8)
Trinity Church Wall Street.

 8a
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 plaintiffs. 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.
Athough 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 quotation marks omitted.) Himmelstein v. Windsor, 304
Conn. 298, 307, 39 A.3d 1065 (2012).
14

 9a
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
plaintiffs 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 unstable
individuals can acquire an AR-15, has made the rifle the
weapon of choice for mass shootings, including school
shootings.
The particular weapon at issue in this case was
manufactured and sold by the Bushmaster defendants’.
Sometime prior to March, 2010, the Bushmaster
defendants’ sold the rifle to the Camfour defendants’.
The Camfour defendants’ subsequently sold the rifle to
the Riverview defendants’, who operate a retail gun store
located in the town of East Windsor.
In March, 2010, Lanza’s mother purchased the rifle
from the Riverview defendants’.
Lanza, who was

 10a
seventeen years old at the time, had expressed a desire
to join the elite United States Army Rangers unit. His
mother bought the rifle to give to or share with him in
order to connect with him. However, when Lanza turned
eighteen on April 22, 2010, he did not enlist in the
military. Still, he gained unfettered access to a military
style assault rifle.
Eight months later, on the morning of December 14,
2012, Lanza retrieved the rifle and ten 30 round
magazines. Using a technique taught in the first person
shooter video games that he played, he taped several of
those magazines together to allow for faster reloading.
He then drove to Sandy Hook Elementary School.
Just before 9:30 a.m., Lanza shot his way into the
locked school using the XM15-E2S. He immediately shot
and killed Mary Joy Sherlach as well as the school’s
principal. He subsequently shot and wounded two staff
members.
Lanza next entered Classroom 8, where he used the
rifle to kill two adults and fifteen first grade children,
including five of the plaintiffs. Finally, he entered
Classroom 10, where he used the rifle to kill two adults
and five first grade children, including three of the
plaintiffs. Nine children from Classroom 10 were able to
escape when Lanza paused to reload with another
magazine.
In total, the attack lasted less than four and one-half
minutes, during which Lanza fired at least 154 rounds
from the XM15-E2S, killing twenty-six and wounding two
others. 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
16

 11a
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 outweigh
any potential benefits. The defendants’ continued to sell
the XM15-E2S despite their knowledge of these facts.
Therefore, the plaintiffs contend, it was both negligent
and an unfair trade practice for each of the defendants’ 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,
specifically, the weapon’s suitability for offensive combat
missions. The plaintiffs argue that the defendants’
militaristic marketing reinforces the image of the AR-15
as a combat weapon that is intended to be used for the
purposes of waging war and killing human beings.
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 Connecticut, 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.

 12a
Consistent with that image, the defendants’ further
promoted the XM15-E2S as a combat weapon system by
designating in their product catalogues that the rifle
comes “standard” with a 30 round magazine which, the
plaintiffs allege, differs from how the defendants’
promote and sell rifles for legal civilian purposes such as
hunting and sport shooting. 17
The plaintiffs further contend that the defendants’
unethically promoted their assault weapons for offensive,
military style missions by publishing advertisements and
distributing product catalogs that (1) promote the AR-15
as “the uncompromising choice when you demand a rifle
as mission adaptable as you are,” (2) depict soldiers
moving on patrol through jungles, armed with
Bushmaster rifles, (3) feature the slogan “[w]hen you
need to perform under pressure, Bushmaster delivers,”
superimposed over the silhouette of a soldier holding his
helmet against the backdrop of an American flag, (4) tout
the “military proven performance” of firearms like the
XM15-E2S, (5) promote civilian rifles as “the ultimate
combat weapons system,” (6) invoke the unparalleled
In addition to alleging that the defendants’ promoted the XM15E2S 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
provide 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.

17

 13a
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
marketing theory of liability, the plaintiffs contend that
the defendants’ marketing of the XM15-E2S to civilians
for offensive assault missions was a substantial factor in
causing the plaintiffs’ injuries. Specifically, they contend
that Lanza had dreamed as a child of joining the elite
Army Rangers unit of the United States Army and was,
therefore,
especially
susceptible
to militaristic
marketing. They further contend that he selected the
XM15-E2S for his assault from among an arsenal that
included various less lethal arms—at least three
handguns, one shotgun, two bolt action rifles, and three
samurai swords—and that he specifically chose the
XM15-E2S not only for its functional capabilities,
including its assaultive qualities and efficiency in
inflicting mass casualties, but also because of its
marketed association with the military. 18 Finally, they
contend 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
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.

18

 14a
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.
Additional 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 allegations
of negligent entrustment and CUTPA violations, both of
which satisfy statutory exceptions to PLCAA immunity.
In this part of the opinion, we consider whether the trial
court correctly concluded that the plaintiffs’ claims were
legally insufficient to the extent that those claims are
predicated on a theory of negligent entrustment. The
trial court concluded both that the plaintiffs had not
sufficiently pleaded a cause of action in negligent
entrustment under Connecticut common law and, in the
alternative, that the plaintiffs’ allegations did not satisfy
PLCAA’s statutory definition of negligent entrustment.
See 15 U.S.C. § 7903 (5) (B) (2012). 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
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.”
19

 15a
under our state’s common law, we need not consider
whether negligent entrustment claims must meet stricter
requirements in order to satisfy the federal statutory
exception.
The following additional procedural history is
relevant to this issue. In response to the defendants’
motions to strike, the plaintiffs argued that their claims
are not precluded by PLCAA because each of their
claims is predicated in part on a theory of negligent
entrustment and PLCAA does not confer immunity on
sellers of firearms in actions for negligent entrustment.
See 15 U.S.C. § 7903 (5) (A) (ii) (2012). 20 In its decision
granting the defendants’ motions to strike, the trial court
concluded that an action for negligent entrustment 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 Camfour 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 defendants’) 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 theories of liability.

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. . .
.”
20

 16a
We commence our review of this issue with a brief
discussion of the history of and principles that animate
the tort of negligent entrustment. The cause of action for
negligent entrustment represents a departure from the
general rule that an individual cannot be held liable for
the conduct of others. It reflects a legitimate societal
concern that a person in possession of a dangerous
instrument should bear the responsibility of exercising
care when entrusting that instrument to another, given
the serious risk to society if items like firearms or
automobiles should fall into unfit hands. See J. Fisher,
Comment, “So How Do You Hold This Thing Again?:
Why the Texas Supreme Court Should Turn the Safety
off the Negligent Entrustment of a Firearm Cause of
Action,” 46 Tex. Tech. L. Rev. 489, 495, 501 (2014). The
primary question that we must resolve is whether these
principles apply only when the entrustor believes or has
specific reason to believe that the direct entrustee is
likely to use the item unsafely or, rather, whether they
also apply when it is reasonably foreseeable that the
entrustment ultimately will lead to injurious use, whether
by the direct entrustee or by some unknown third party.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
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.

21

 17a
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
preadolescent 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
negligent entrustment in the 1920s, following the advent
of the mass produced automobile; see J. Fisher, supra, 46
Tex. Tech. L. Rev. 493; and Connecticut first recognized
the common-law cause of action in Turner v. American
District Telegraph & Messenger Co., 94 Conn. 707, 110 A.
540 (1920). In that case, the defendant security company
entrusted a loaded pistol to an employee who later
instigated a fight with and ultimately shot the plaintiff, a
customer’s night watchman. Id., at 708–11, 110 A. 540
(preliminary statement of facts). This court held that
there was insufficient evidence to support a verdict for
the plaintiff on his negligent entrustment claim because
there was not “even a scintilla of evidence that the
defendant had or ought to have had knowledge or even
suspicion that [its employee] possessed any of the traits .
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).
22

 18a
. . attributed to him by the plaintiff,” including that “he
was a reckless person, liable to fall into a passion, and
unfit to be [e]ntrusted with a deadly weapon . . . .” Id., at
716, 110 A. 540. “Without this vitally important fact,” the
court concluded, “the plaintiff’s claim falls to the ground .
. . .” Id.
Other Connecticut cases decided in the early
twentieth century, although not always expressly
resolved under the rubric of negligent entrustment, also
suggested that a person can be held liable for third-party
injuries resulting from another’s use of a dangerous item
only if the entrustment of that item was made with actual
or constructive knowledge that misuse by the entrustee
was foreseeable. In Wood v. O’Neil, 90 Conn. 497, 97 A.
753 (1916), for example, this court held that no cause of
action in negligence could be maintained against the
parents of a fifteen year old boy who accidentally shot a
companion with a shotgun because the parents, in
permitting the boy to use the gun, had no specific
knowledge that he “was possessed of a marked careless
disposition.” Id., at 500, 97 A. 753.
Subsequently, in Greeley v. Cunningham, 116 Conn.
515, 165 A. 678 (1933), we articulated the standards that
govern a negligent entrustment action in the context of
automobiles, which since has become the primary context
in which such claims have arisen. See generally J.
Fisher, supra, 46 Tex. Tech. L. Rev. 489. In Greeley, the
plaintiff alleged that the defendant had been negligent in
entrusting his car to an unlicensed driver, who
subsequently caused an accident while attempting to pass
the plaintiff’s vehicle. See Greeley v. Cunningham,
supra, at 517–18, 165 A. 678. “[Although] liability cannot
be imposed [on] an owner merely because he [e]ntrusts
his automobile] to another to drive [on] the highways,”

 19a
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., at 518, 165 A. 678. 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 automobile entrusts it to another person (2) whom the
owner knows or should reasonably know is so
incompetent to operate it that injury to others should
reasonably be anticipated, and (3) such incompetence
results in injury. Id., at 520, 165 A. 678.
Since this court decided Wood, Turner, and Greeley,
it never has suggested that a cause of action for negligent
entrustment—whether involving a vehicle, a weapon, or
some other dangerous item—will lie in the absence of
evidence that the direct entrustee is likely to use the item
unsafely. Most jurisdictions that have recognized a cause
of action in negligent entrustment likewise require that
the actor have actual or constructive knowledge that the
specific person to whom a dangerous instrumentality is
directly entrusted is unfit to use it properly. See, e.g., J.
Fisher, supra, 46 Tex. Tech. L. Rev. 496; B. Todd, supra,
6 Hamline L. Rev. 467; S. Beal, “Saving Negligent
Entrustment Claims,” Trial, February, 2007, p. 35.
In accordance with the majority view, this also is the
rule set forth in the Restatement (Second) of Torts.
Section 308 of the Restatement (Second) provides that
“[i]t is negligence to permit a third person to use a thing .
. . [that] is under the control of the actor, if the actor

 20a
knows or should know that such person intends or is
likely to use the thing . . . in such a manner as to create
an unreasonable risk of harm to others.” (Emphasis
added.) 2 Restatement (Second), Torts § 308, p. 100
(1965). Section 390, which further defines the tort of
negligent entrustment, provides that “[o]ne who supplies.
. . a chattel for the use of another whom the supplier
knows or has reason to know to be likely because of his
youth, inexperience, or otherwise, to use it in a manner
involving unreasonable risk of physical harm to himself
and others . . . is subject to liability for physical harm
resulting to them.” 2 id., § 390, p. 314; see also B. Todd,
supra, 6 Hamline L. Rev. 467 and n.5. We take it as well
established, then, that, in order to prove negligent
entrustment, a plaintiff must demonstrate that (1) the
defendant has entrusted a potentially dangerous
instrumentality to a third person (2) whom the entrustor
knows or should know intends or is likely to use the
instrumentality in a manner that involves unreasonable
risk of physical harm, and (3) such use does in fact cause
harm to the entrustee or others.
The rule that a cause of action for negligent
entrustment will lie only when the entrustor knows or
has reason to know that the direct entrustee is likely to
use a dangerous instrumentality in an unsafe manner
would bar the plaintiffs’ negligent entrustment claims.
Specifically, there is no allegation in this case that there
was any reason to expect that Lanza’s mother was likely
to use the rifle in an unsafe manner. 23
The plaintiffs, recognizing that they cannot prevail
under this rule, invite us to adopt a different framework,
The plaintiffs expressly disclaim any allegation that Riverview’s
employees were careless in their decision to sell the rifle to Lanza’s
mother.

23

 21a
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
ultimately 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
historical moorings. We recognize that some of our sister
state courts have permitted negligent entrustment
actions to proceed when, although there was no indication
that the direct entrustee was incompetent to use a
dangerous item, there was reason to believe that the
entrustee would in turn share the item with a specific
third party who would misuse it. This has been the case,
for example, when a parent or other agent purchased a
weapon or vehicle for a child who was present at the
place and time of sale. 24 We need not decide whether and
See, e.g., Dillon v. Suburban Motors, Inc., 166 Cal.App.3d 233, 212
Cal. Rptr. 360, 362–67, cause dismissed, 218 Cal. Rptr. 584, 705 P.2d
1260 (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).
24

 22a
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
manufacturer of a product and the person who ultimately
used that product in an unsafe manner was as attenuated
as it is in the present case. 25
We also recognize that there is authority for the
proposition that entrustment may be deemed negligent
when the entrustor has no specific knowledge regarding
the entrustee’s personal competence or character but
knows that the entrustee is a member of a class that is
notoriously unfit to safely utilize the entrusted item. See
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. Commercial 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, 722
N.Y.S.2d 220, 744 N.E.2d 1156 (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).
25

 23a
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 family
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 Sellers?”
39 U. Fla. L. Rev. 925, 928 (1987). In some instances, a
person may be unsuited to drive an automobile because
he is reckless, or inebriated, or otherwise distinctly unfit
to drive safely on the public roads. See A. Cholodofsky,
supra, 926 and nn. 5–6. It also is a matter of common
sense and common knowledge, however, that certain
classes of people—e.g., young children and blind
persons—are inherently unfit to drive.
Our laws recognize as much. See General Statutes §
14-36 (c) and (e) (establishing, among other things, age
and vision screening requirements for motor vehicle
operator’s permit or license). Accordingly, one may be
negligent for entrusting an automobile to such users even
in the absence of any particular knowledge about their
individual driving skills, experience, or temperament. A
jury reasonably might conclude that the same is true
with respect to firearms and other weapons and
dangerous equipment. See B. Todd, supra, 468–69.
The plaintiffs’ theory, however, is fundamentally
different. They do not contend that all gun buyers such

 24a
as Lanza’s mother, or young men such as Lanza, are
incapable of safely operating an AR-15. The plaintiffs do
not even contend that such users usually or even
frequently operate such weapons unsafely or unlawfully.
Rather, the plaintiffs contend that it is objectively
unreasonable to legally sell an assault weapon to an adult
buyer, for no other reason than that some small subset of
buyers will share weapons with their young adult sons
and some much smaller subset of young adult males will
use those weapons to commit terrible, random crimes.
The only plausible way to construe that claim—and we do
not understand the plaintiffs to deny this—is that any
commercial sale of assault weapons to civilian users
constitutes negligent entrustment because the social
costs of such sales 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, 110 Cal. Rptr.2d 370, 28
P.3d 116 (2001); see also Phillips v. Lucky Gunner, LLC,
84 F. Supp.3d 1216, 1226 (D. Colo. 2015) (rejecting theory
that unmediated online sales of hazardous items
represent negligent entrustment), appeal dismissed,
United States Circuit Court of Appeals, Docket No. 151153 (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

 25a
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 constitutes
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
arguments. The court agreed with the defendants’,
however, that CUTPA does not afford protection to
persons who do not have a consumer or other commercial
relationship with the alleged wrongdoer. Accordingly,
the court concluded that the plaintiffs lacked standing to
pursue wrongful death claims predicated on CUTPA
violations.
On appeal, the plaintiffs contend that the trial court
improperly struck their claims for lack of standing to
pursue them under CUTPA.
For their part, the
defendants’ claim that the trial court’s judgment can be
affirmed on the alternative ground that the court’s other
determinations were improper.
As an initial matter, we reiterate that the plaintiffs’
CUTPA based wrongful death claims are predicated on
at least two fundamentally distinct theories of liability.
First, the plaintiffs contend that the defendants’ violated

 26a
CUTPA by selling the XM15-E2S to the civilian market
despite their knowledge that there is no legitimate
civilian use for such a weapon, that assault weapons such
as the AR-15 pose unreasonable risks when used by
civilians, and that individuals unfit to operate such
weapons likely would gain access to them. In other
words, the plaintiffs allege, in essence, that any sale of
any assault weapon to any civilian purchaser in
Connecticut is, ipso facto, an unfair trade practice under
CUTPA.
Second, the plaintiffs contend that the defendants’
violated CUTPA by advertising and marketing the
XM15-E2S in an unethical, oppressive, immoral, and
unscrupulous manner that promoted illegal offensive use
of the rifle. Specifically, they allege that the defendants’:
•

promoted use of the XM15-E2S for offensive,
assaultive purposes—specifically, for “waging war
and killing human beings”—and not solely for selfdefense, hunting, target practice, 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 purchase.

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.

 27a
For the reasons that follow, we conclude that the trial
court improperly granted the defendants’ motion to
strike these allegations in their entirety. We agree with
the plaintiffs that the trial court improperly concluded
that they lack standing to pursue 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 marketing 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 survived. See part
IV B of this opinion. Accordingly, to survive a motion to
strike, the plaintiffs must be able to establish that they
have standing to pursue a CUTPA claim for their
injuries. We first consider whether the trial court
properly concluded that the plaintiffs lacked standing to
bring the present action under CUTPA because they
were third-party victims who did not have a direct
consumer, commercial, or competitor relationship
(business relationship or privity requirement) with the

 28a
defendants’. Because the principal evils associated with
unscrupulous and illegal advertising are not ones that
necessarily arise from or infect the relationship between
an advertiser and its customers, competitors, or business
associates, we hold that a party directly injured by
conduct resulting from such advertising can bring an
action pursuant to CUTPA even in the absence of a
business relationship with the defendant. Accordingly,
we agree with the plaintiffs that the trial court
improperly struck their CUTPA based wrongful death
claims.
Whether one must have entered into a consumer or
commercial relationship with an alleged wrongdoer in
order to have standing to bring a CUTPA action presents
a question of statutory interpretation. The plain meaning
of the statutory text must be our lodestar. See General
Statutes § 1-2z.
General Statutes § 42-110g (a) creates a private right
of action for persons injured by unfair trade practices
and provides in relevant part: “Any person who suffers
any ascertainable loss of money or property, real or
personal, as a result of the use or employment of a
method, act or practice prohibited by section 42-110b,
may bring an action . . . to recover actual damages. . . .”
(Emphasis added.) On its face, the statute plainly and
unambiguously authorizes anyone who has suffered an
ascertainable financial loss as a result of an unfair trade
practice to bring a CUTPA action. Nothing in the text of
the statute indicates that the right afforded by § 42-110g
(a) is enjoyed only by persons who have done business of
some sort with a defendant.
Even if we were to conclude that the statute is
ambiguous in this regard, we perceive nothing in the
legislative history or purpose of the statute that would

 29a
support the defendants’ theory that something more than
an ascertainable financial loss caused by a prohibited act
is necessary to confer standing under CUTPA. When
CUTPA originally was enacted in 1973, the statute
authorized private actions for “[a]ny person who
purchases or leases 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 No. 73615, § 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 No. 75-618, § 5 (P.A. 75-618). As
amended, the statute provided that CUTPA actions can
be brought either by “any person who purchases or
leases goods or services from a seller or lessor primarily
for personal, family or household purposes and thereby
suffers any ascertainable loss . . . as a result” or by “[a]ny
person who suffers any ascertainable loss of money or
property, real or personal, as a result [of a prohibited
practice] . . . .”
P.A. 75-618, § 5, codified as amended at General
Statutes (Rev. to 1977) § 42-110g (a). In other words, the
legislature conferred standing on an additional category
of plaintiffs, namely, those whose injuries were not the
result of a direct consumer purchase or lease of goods or
services. Presumably recognizing that the original

 30a
category of CUTPA plaintiffs (consumer direct
purchasers and lessors) had become redundant insofar as
it was merely a subset of the new, broader category that
had been added in the 1975 amendments—i.e., any
person who suffers an injury as a result of a prohibited
practice—the legislature amended the statute again in
1979 to eliminate the reference to direct purchasers. See
Public Acts 1979, No. 79-210 No. 79-210, § 1, codified at
General Statutes (Rev. to 1981) § 42-110g (a). As we
previously have explained; see Vacco v. Microsoft Corp.,
260 Conn. 59, 86–87 and n.30, 793 A.2d 1048 (2002); it is
clear from this history that, although a business
relationship initially was required to bring a CUTPA
action, the legislature chose to eliminate that privity
requirement and instead conferred standing on any
person who could establish an ascertainable loss as a
result of an unfair trade practice.
This conclusion finds additional support in the
legislative proceedings pertaining to the various 1970s
amendments. From the start, CUTPA prohibited unfair
trade practices associated not only with the actual sale
and distribution of products and services, but also with
the advertising and offering of those products and
However, when the House of
services for sale. 26
Representatives debated Substitute House Bill No. 5613,
the bill that ultimately became No. 78346. However,
when the House of Representatives debated Substitute
House Bill No. 5613, the bill that ultimately became No.
General Statutes (Rev. to 1975) § 42-110b (a) provided in relevant
part: “No person shall engage in unfair methods of competition . . . in
the conduct 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. . . .”
26

 31a
78346 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 constitute 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 advertisement . . . .” 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 advertising 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
representatives during the 1978 hearings was to prevent
the Department of Consumer Protection (department)
from being stripped of its authority to aggressively
enforce CUTPA violations relating to false or misleading
advertising. It is, of course, possible that the legislature
wanted the department to be able to curtail wrongful
advertising campaigns at their inception, without having
to wait until consumers were harmed before taking legal
action, but intended that private individuals not have
standing to sue unless and until they had purchased
goods or services in reliance on such advertisements. It
bears emphasis, however, that the legislative history of
CUTPA is replete not only with references to the broad

 32a
scope and remedial nature of the act 27 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 Commissioner
of Consumer Protection Mary Heslin, before the General
Law Committee. See Conn. Joint Standing Committee
Hearings, General Law, Pt. 4, 1979 Sess., p. 1159.
Testifying in favor of the 1979 amendment that
eliminated the direct purchaser requirement language,
Feigen explained that “[n]umerous arguments have been
raised in both state and federal courts that [a] plaintiff, in
order to sue, must be a purchaser or a lessee of a seller . .
. .” Id. “The amendment,” he opined, “will now allow a
suit by any person who suffers any ascertainable loss of
money or property.” Id. Those statements, although not
dispositive of the question before us, provide support for
the plaintiffs’ theory that the legislature intended to
eliminate the business relationship requirement when it
amended CUTPA. See Vacco v. Microsoft Corp., supra,
260 Conn. at 86–87 and n.30, 793 A.2d 1048.

See, e.g., 19 H.R. Proc., Pt. 6, 1976 Sess., pp. 2186–87, remarks of
Representative 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.
27

 33a
The defendants’, while implicitly acknowledging that
the plain language of § 42-110g (a) no longer imposes a
business relationship requirement, offer two arguments
as to why we should continue to read such a requirement
into the statute. First, they contend that the trial court
properly concluded that our prior cases and those of the
Appellate Court have recognized a business relationship
requirement and that principles of stare decisis and
legislative acquiescence counsel against departing from
those decisions. 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. at 59, 793 A.2d 1048, and Ventres v.
Goodspeed Airport, LLC, 275 Conn. 105, 881 A.2d 937
(2005), cert. denied, 547 U.S. 1111, 126 S.Ct. 1913, 164
L.Ed.2d 664 (2006). Neither decision compels such a
result.
In Vacco, we recognized that the legislature, by
“‘deleting all references to “purchasers, sellers, lessors,
or lessees”’” in § 42-110g (a) in 1979, had eliminated
CUTPA’s privity requirement. Vacco v. Microsoft Corp.,
supra, 260 Conn. at 88, 793 A.2d 1048. We proceeded to
clarify, however, that the elimination of the privity
requirement did not mean that anyone could bring a
CUTPA action, no matter how attenuated the connection
between his or her injuries and a defendant’s allegedly
unfair trade practices. “Notwithstanding the elimination
of the privity requirement,” we explained, “it strains
credulity to conclude that CUTPA is so formless as to
provide redress to any person, for any ascertainable

 34a
harm, caused by any person in the conduct of any trade
or commerce.” (Internal quotation marks omitted.) Id.
We further observed, however, that CUTPA liability
could reasonably be cabined in the same manner as with
common-law tort actions: “[N]otwithstanding the broad
language and remedial purpose of CUTPA, we have
applied traditional common-law principles of remoteness
and proximate causation to determine whether a party
has standing to bring an action under CUTPA.”
(Footnote omitted.) Id. Notably, we cited Ganim v.
Smith & Wesson Corp., 258 Conn. 313, 780 A.2d 98
(2001), as an example of a case in which the alleged
harms suffered by the plaintiffs—the city of Bridgeport
and its mayor—as a result of gun violence were “too
remote and derivative” with respect to the challenged
conduct for the plaintiffs to have standing to bring a
CUTPA claim. Vacco v. Microsoft Corp., supra, at 88–89,
793 A.2d 1048, citing Ganim v. Smith & Wesson Corp.,
supra, at 344, 365, 780 A.2d 98. We proceeded in Vacco to
apply the same three part remoteness analysis that we
had applied in Ganim, ultimately concluding that the
plaintiff lacked standing because his injuries were too
remote in relation to the defendant’s allegedly
anticompetitive conduct. Vacco v. Microsoft Corp., supra,
at 90–92, 793 A.2d 1048; see Ganim v. Smith & Wesson
Corp., supra, at 353, 780 A.2d 98. Accordingly, Vacco
stands for the proposition that standing to bring a
CUTPA claim will lie only when the purportedly unfair
trade practice is alleged to have directly and proximately
caused the plaintiff’s injuries.
This remoteness
requirement serves the same function as a privity
requirement, as it mitigates any concerns associated with
imposing limitless liability on CUTPA defendants’.
Although our decision in Ventres could be read to
suggest that the plaintiff must have a business

 35a
relationship with the defendant, a closer review indicates
that it does not stand for this sweeping proposition. In
that case, a land trust and a conservancy (property
owners) alleged that the named defendant, Goodspeed
Airport, LLC, among other defendants’, had violated
CUTPA by trespassing on the property owners’ land.
See Ventres v. Goodspeed Airport, LLC, supra, 275 Conn.
at 109, 112, 881 A.2d 937. We concluded, as a matter of
law, that, even if the property owners had been able to
prove their allegations, none of the alleged conduct would
have risen to the level of a CUTPA violation. See id., at
156–58, 881 A.2d 937.
As an alternative, independent basis for upholding the
trial court’s decision to strike the property owners’
CUTPA claims, we briefly considered the property
owners’ contention that a CUTPA plaintiff is not
required to allege any business relationship with a
defendant, summarily rejecting that claim on the ground
that the property owners had provided no authority for
the proposition.
Id., at 157–58, 881 A.2d 937.
Significantly, in contrast to the present case, Ventres did
not involve allegations that a business relationship
between the defendants’ and a third party had resulted in
the harm alleged. Therefore, we had no occasion to
discuss or apply the proximate cause analysis set forth in
Vacco. See Vacco v. Microsoft Corp., supra, 260 Conn. at
90–92, 793 A.2d 1048. In other words, there was no
business relationship that could result in any causal
connection to the injury alleged.
Accordingly, the court in Ventres did not hold that
every CUTPA claim requires a business relationship
between a plaintiff and a defendant. Indeed, we did not
analyze that issue, and at no point did we examine either
the text or the legislative history of the statute, both of

 36a
which, as we previously explained, strongly suggest that
the legislature did not intend to impose a privity
requirement. We thus conclude that the principles of
stare decisis and legislative acquiescence do not preclude
us from construing § 42-110g (a) de novo in the present
case to address this question. See Igartua v. Obama, 842
F.3d 149, 160 (1st Cir. 2016) (Torruella, J., concurring in
part and dissenting in part) (“[c]onsidering the cursory
treatment given to this issue by the . . . panel [in the prior
decision], our hands are not tied by stare decisis”), cert.
denied sub nom. Igartua v. Trump, --- U.S. ---, 138 S.Ct.
2649, 201 L.Ed.2d 1050 (2018).
Next, we consider the defendants’ argument that this
court has, for prudential reasons, set various limitations
on the types of parties that may bring CUTPA claims.
The defendants’ contend that similar policy rationales
counsel in favor of imposing a business relationship
requirement. In two of the cases that the defendants’
cite in support of this proposition, however, this court
concluded that CUTPA simply did not govern the
conduct at issue, and, therefore, we did not consider the
question of standing. See Haynes v. Yale-New Haven
Hospital, 243 Conn. 17, 34, 699 A.2d 964 (1997) (medical
malpractice claims are not subject to CUTPA); Russell v.
Dean Witter Reynolds, Inc., 200 Conn. 172, 180, 510 A.2d
972 (1986) (CUTPA does not apply to deceptive practices
in purchase and sale of securities). In the third case on
which the defendants’ rely, namely, Jackson v. R. G.
Whipple, Inc., 225 Conn. 705, 627 A.2d 374 (1993), this
court concluded that third parties lacked CUTPA
standing only in the context of the unique professional
relationship between attorneys and their clients. See id.,
at 729, 627 A.2d 374. Accordingly, the cases that the
defendants’ cite, which address unique professional
service contexts and relationships, provide little support

 37a
for the general proposition that CUTPA does not confer
standing outside the limited confines of a business
relationship between the CUTPA plaintiff and defendant.
We need not decide today whether there are other
contexts or situations in which parties who do not share a
consumer, commercial, or competitor relationship with an
alleged wrongdoer may be barred, for prudential or
policy reasons, from bringing a CUTPA action. What is
clear is that none of the rationales that underlie the
standing doctrine, either generally or 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 decisions [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. at 313, 780 A.2d 98, there
are several reasons why standing traditionally has been
restricted to those parties directly injured by a
defendant’s conduct: “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, recognizing claims by the indirectly injured
would require courts to adopt complicated rules
apportioning damages 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

 38a
without these attendant problems.” (Internal quotation
marks omitted.) Id., at 353, 780 A.2d 98.
Ganim, in fact, provides an instructive contrast to the
present case. In Ganim, the mayor and the city of
Bridgeport brought an action against handgun
manufacturers, trade associations, and retail gun sellers
to recoup various municipal costs associated with gun
violence, including increased police and emergency
services, loss of investment, and victimization of
Bridgeport’s citizens. Id., at 315–16, 326–27, 780 A.2d 98.
We concluded that the municipal plaintiffs lacked
standing under CUTPA because the “harms claimed . . .
[were too] indirect, remote and derivative with respect to
the defendants’ conduct . . . .” Id., at 353, 780 A.2d 98.
Moreover, we observed that one easily could identify
several sets of potential plaintiffs who were more directly
harmed by the defendants’ alleged misconduct than was
the city: “[A]ll [of] the homeowners in Bridgeport who
have been deceived by the defendants’ misleading
advertising, all of the persons who have been assaulted or
killed by the misuse of the handguns, and all of the
families of the persons who committed suicide using
those handguns.” Id., at 359, 780 A.2d 98.
In the present case, by contrast, the plaintiffs allege
that the defendants’ wrongful advertising magnified the
lethality of the Sandy Hook massacre by inspiring Lanza
or causing him to select a more efficiently deadly weapon
for his attack. Proving such a causal link at trial may
prove to be a Herculean task. 29 But if it can be proven—
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
29

 39a
and the posture in which this case reaches us requires
that we assume it can 30—the link between the allegedly
wrongful conduct and the plaintiffs’ injuries 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 challenging
the defendants’ conduct; no private party is better
situated than the plaintiffs to bring the action. A claim
that a defendant’s advertisements unethically promote
illegal conduct is fundamentally different from one
alleging false or misleading advertising. The primary
harm associated with the latter is that a consumer will
rely to his or her detriment on the advertiser’s
representations; it is in the misinformed purchase of the
product or service that the wrong becomes fully manifest.
Actual customers, then, typically will be the parties most
directly and adversely impacted by the alleged wrong.
Marketing Claims Against Firearms Manufacturers,” 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 at 517, 110 Cal. Rptr.2d
370, 28 P.3d 116 (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”).

 40a
The gravamen of a wrongful advertising claim, by
contrast, is that an advertisement models or encourages
illegal or unsafe behavior. In such instances, the
immediate victims are just as likely to be third parties
who are not customers, whether it be individuals who
engage in inappropriate conduct inspired by the
advertisements or the direct victims of that conduct. For
example, when an especially racy sports car commercial
disclaims, “professional driver, closed course, do not
attempt this at home,” the perceived risk is not merely—
or even primarily—that viewers will purchase that
particular vehicle and drive it unsafely as a result of the
commercial. Of at least equal concern is the possibility
that noncustomer viewers will emulate the commercial
when driving their own vehicles, violating motor vehicle
laws, and possibly causing injury to themselves or others,
including passengers or pedestrians.
In the present case, the wrong charged is that the
defendants’ promoted the use of their civilian assault
rifles for offensive, military style attack missions. The
most directly foreseeable harm associated with such
advertising is that innocent third parties could be shot as
a result. The decedents are the ones who got shot.
If the defendants’ marketing materials did in fact
inspire or intensify the massacre, then there are no more
direct victims than these plaintiffs; nor is there any
customer of the defendants’ with a better claim to
standing. That is to say, if these plaintiffs cannot test the
legality of the defendants’ advertisements pursuant to §
42-110g, then no one can. For these reasons, we conclude
that the trial court improperly determined that the
plaintiffs lack standing to assert wrongful death claims
predicated on the defendants’ alleged CUTPA violations.

 41a
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
predicated 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
plaintiffs’ 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
relevant to this claim. The complaint alleges that Lanza’s
mother purchased the rifle in question in March, 2010,
and that it was manufactured and distributed sometime
prior to that date. Lanza carried out the Sandy Hook
massacre on December 14, 2012, on which date all of the
decedents died. The plaintiffs delivered their summons
and complaint to a state marshal on December 13, 2014.
The defendants’ moved to strike the plaintiffs’
wrongful death claims on the theory that those claims are
predicated on underlying CUTPA violations and that
private actions brought pursuant to CUTPA are subject
to a three year statute of limitations. See

 42a
Statutes § 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
controlling statute of limitations for purposes of the
present action. Rather, the court emphasized that,
although the plaintiffs’ claims were predicated on a
theory of liability sounding in unfair trade practices,
those claims were brought pursuant to § 52-555, the
wrongful death statute. That statute has its own statute
of limitations, which requires that a wrongful death
action “be brought . . . within two years from the date of
death,” and its own statute of repose, which requires that
a wrongful death action “be brought [no] more than five
years from the date of the act or omission complained of.”
General Statutes § 52-555 (a). Because process was
served within two years of the date of the decedents’
deaths and within five years of the date on which the rifle
was sold, the court concluded that the action would not be
time barred if the statute of limitations contained in § 52555 (a) controls.
The trial court therefore sought to resolve the
apparent conflict between the statutes of limitations
contained in §§ 42-110g (f) and 52-555 (a). Relying on the
decision of the Appellate Court in Pellecchia v.
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.”

31

 43a
Connecticut Light & Power Co., 139 Conn. App. 88, 90, 54
A.3d 658 (2012) (adopting trial court’s memorandum of
decision in Pellecchia v. Connecticut Light & Power Co.,
52 Conn. Supp. 435, 54 A.3d 1080 [2011]), cert. denied,
307 Conn. 950, 60 A.3d 740 (2013), the trial court
concluded that, when a wrongful death claim is
predicated on an underlying theory of liability that is
subject to its own statute of limitations, it is the wrongful
death statute of limitations that controls. Because the
court concluded that the CUTPA statute of limitations
did not apply, and because the action was brought within
two years of the 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,

 44a
rather than the limitations provision applicable to
medical malpractice claims, governed in a wrongful death
action based on malpractice. Id., at 385, 16 A.2d 833; see
also Ecker v. West Hartford, 205 Conn. 219, 245, 530 A.2d
1056 (1987) (suggesting that statute of limitations
contained in § 52-555 may control in wrongful death
actions predicated on contract and warranty theories of
liability). The legislative history of the 1991 amendments
to the wrongful death statute reflecting the current
statutory language; Public Acts 1991, No. 91-238 No. 91238, § 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.

 45a
Danbury Hospital, 323 Conn. 741, 748–49, 150 A.3d 1109
(2016); see also id., at 749, 150 A.3d 1109 (time limitation
is “essential and integral” to existence of cause of action);
Avon Meadow Condominium Assn., Inc. v. Bank of
Boston Connecticut, 50 Conn. App. 688, 699–700, 719
A.2d 66 (time limitation that is contained within statute
that creates right of action that did not exist at common
law is limitation of liability itself, and, accordingly,
CUTPA statute of limitations is jurisdictional), cert.
denied, 247 Conn. 946, 723 A.2d 320 (1998), and cert.
denied, 247 Conn. 946, 723 A.2d 320 (1998).
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
Connecticut’s wrongful death statute does not create a
new cause of action, independent of any claims that the
decedent might have had during his or her life. Rather,
the wrongful death statute merely allows the
administrator of an estate to append to an already valid
claim an additional element of damages consisting of
costs associated with the decedent’s death. See, e.g.,
Sanderson v. Steve Snyder Enterprises, Inc., 196 Conn.
134, 149, 491 A.2d 389 (1985); Foran v. Carangelo, supra,
153 Conn. at 360, 216 A.2d 638; Shaker v. Shaker, 129
Conn. 518, 520–21, 29 A.2d 765 (1942); see also Kling v.
Torello, 87 Conn. 301, 305–306, 87 A. 987 (1913). A
necessary consequence of this principle is that a cause of
action for wrongful death predicated on a CUTPA

 46a
violation will lie only insofar as the decedent, had he or
she survived, could have satisfied all of the essential
elements of the CUTPA claim. See, e.g., Roque v. United
States, 676 F. Supp.2d 36, 42 (D. Conn. 2009) (plaintiff
must prove elements of negligence claim in wrongful
death action predicated on negligence);
Nolan v.
Morelli, 154 Conn. 432, 435, 226 A.2d 383 (1967) (plaintiff
must establish that decedent could recover damages
under Dram Shop Act in wrongful death action
predicated on that statute); see also Schwarder v. United
States, 974 F.2d 1118, 1129 (9th Cir. 1992) (Alarcon, J.,
concurring in part and dissenting in part) (“[a] majority
of the state courts that have considered the question have
held that a survivor cannot bring a wrongful death action
if the decedent was barred from [bringing a claim for his
injuries] in his lifetime, because the wrongful death claim
is essentially derivative of the injury to the decedent”);
W. Keeton et al., Prosser and Keeton on the Law of Torts
(5th Ed. 1984) § 127, p. 955 (“[t]he wrongful death action
for the benefit of survivors is, like other actions based on
injuries to others, derivative in nature, arising out of and
dependent [on] the wrong done to the injured person and
thus barred when his claim would be barred” [footnote
omitted]). It is clear, then, that the plaintiffs’ wrongful
death claims must comply not only with the statute of
limitations that governs wrongful death actions but also
with CUTPA’s statute of limitations.
Accordingly,
because it is undisputed that the manufacture,
distribution, and final sale of the rifle to Lanza’s mother
all occurred at least three years prior to the
commencement of the present action, we conclude that
the trial court should have struck as time barred the
plaintiffs’ wrongful death claims predicated on a theory
that any sale to the civilian market of military style

 47a
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 complaint
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’
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.

32

 48a
CUTPA claims. Section 52-572n (a) provides that “[a]
product liability claim as provided in [the Product
Liability Act] may be asserted and shall be in lieu of all
other claims against product sellers, including actions of
negligence, strict liability and warranty, for harm caused
by a product.” The defendants’ contend that all of the
plaintiffs’ CUTPA claims ultimately boil down to the
argument that the XM15-E2S is unreasonably dangerous
for sale to the civilian market and, therefore, that
manufacturers and distributors of that weapon should be
held strictly liable for any injuries resulting from its
misuse. They contend that this is “nothing more than a
[P]roduct [L]iability [A]ct claim dressed in the robes of
CUTPA”; Gerrity v. R.J. Reynolds Tobacco Co., 263
Conn. 120, 129, 818 A.2d 769 (2003); and that, pursuant to
§ 52-572n(a), the Product Liability Act provides the
exclusive remedy. We are not persuaded.
As we have explained, the plaintiffs’ wrongful death
claims are predicated on two distinct theories of unfair
trade practice: (1) the sale of assault rifles such as the
XM15-E2S to the civilian market is inherently
unreasonable and dangerous; and (2) the defendants’
marketed and promoted the XM15-E2S in an unethical,
oppressive, immoral, and unscrupulous manner. The
defendants’ primary argument with respect to the
Product Liability Act relates to the plaintiffs’ first theory
of liability. Because we have concluded that claims
predicated on the plaintiffs’ first CUTPA based theory of
liability are time barred, however, we need not determine
whether those claims also are precluded by § 52-572n (a).
Cf. footnote 14 of this opinion.
With respect to the plaintiffs’ second theory of
liability, the defendants’ fail to offer any explanation as to
why the allegation that they wrongfully marketed the

 49a
XM15-E2S by promoting the gun’s use for illegal
purposes—offensive, military style assault missions—
amounts to a product defect claim. 33 There is no
allegation 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 at 465, 110 Cal. Rptr.2d 370, 28 P.3d 116, the
California Supreme Court rejected allegations of
wrongful firearms marketing as disguised product
liability claims. We read Merrill differently. It is true
that the California Supreme Court concluded that many
of the negligent marketing and distribution claims at
issue in that case were barred by a California statute that
provided that a gun manufacturer may not be held liable
in a product liability action on the basis that the benefits
of its product fail to outweigh the product’s risk of injury
when discharged. Id., at 470, 110 Cal. Rptr.2d 370, 28
P.3d 116; see Cal. Civ. Code § 1714.4 (a) (Deering 1994)
(repealed in 2002). But the claims in Merrill, while
dressed in terms of negligent marketing and distribution,
were substantially similar to the claims of the plaintiffs in
the present case, namely, that the sale of assault weapons
to the civilian market is inherently unreasonable because
those weapons have no legitimate civilian purpose. See

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. at
128, 818 A.2d 769.

33

 50a
Merrill v. Navegar, Inc., supra, at 470, 480–81, 110 Cal.
Rptr.2d 370, 28 P.3d 116.
The only claims at issue in Merrill that were akin to
the plaintiffs’ immoral advertising claims were their
allegations that Navegar, Inc. (Navegar), a gun
manufacturer, advertised its semiautomatic assault
pistols “as tough as your toughest customer” and as
featuring “excellent resistance to finger prints,” which
might have suggested that the weapons were especially
well suited for criminal use. (Internal quotation marks
omitted.) Id., at 471, 110 Cal. Rptr.2d 370, 28 P.3d 116.
In holding that the trial court had properly granted
Navegar’s motion for summary judgment with respect to
those “more inflammatory aspects of Navegar’s
advertising”; id., at 489, 110 Cal. Rptr.2d 370, 28 P.3d
116; however, the California Supreme Court relied not on
the immunity provision in California’s product liability
statute but, rather, on the facts that (1) the plaintiffs in
Merrill expressly disavowed any claims based on the
specific content of Navegar’s advertising; id., at 474, 487–
88, 110 Cal. Rptr.2d 370, 28 P.3d 116; and (2) there was
no evidence that the shooter in that case ever had seen,
let alone had been inspired by, any of Navegar’s allegedly
inappropriate promotional materials. Id., at 471, 473,
488–91, 110 Cal. Rptr.2d 370, 28 P.3d 116. Accordingly,
we do not read Merrill as supporting the defendants’
contention that the wrongful advertising claims in the
present case are merely masked product defect claims.
The defendants’ have offered no other arguments as
to why the plaintiffs’ wrongful advertising claims
represent veiled product liability claims. Accordingly, we
conclude that those claims are not precluded by § 52572n(a). See Gerrity v. R.J. Reynolds Tobacco Co.,
supra, 263 Conn. at 124, 128, 818 A.2d 769 (analyzing

 51a
language of exclusivity provision and concluding that
claim that tobacco companies violated CUTPA by
targeting minors with their cigarette advertising did not
allege product defect and, therefore, was not precluded
by Product Liability Act).
D
CUTPA Personal Injury Damages
We next consider the defendants’ argument that
personal 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 impression, we
hold that CUTPA permits recovery for personal injuries
that result directly from wrongful advertising practices. 35

Although the defendants’ frame the issue as whether damages for
wrongful death are recoverable under CUTPA, the issue is more
accurately characterized 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 recoverable 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.
34

 52a
Whether personal injuries give rise to cognizable
CUTPA damages presents a question of statutory
interpretation. We begin by setting forth the relevant
statutory language. Subsection (a) of § 42-110g contains
two clauses potentially relevant to the issue before us.
First, subsection (a) creates a private right of action for
“[a]ny person who suffers any ascertainable loss of
money or property, real or personal, as a result of the use
or employment of a method, act or practice prohibited by
section 42-110b . . . .” This provision is known as the
ascertainable loss clause. Second, subsection (a) provides
that any person so injured “may bring an action . . . to
recover actual damages.” This provision of subsection (a)
is known as the actual damages clause.
The view of the plaintiffs is that these two clauses
serve distinct, independent functions within the statute
and that only the actual damages clause restricts the
types of damages that are available. Specifically, they
contend that, although one must suffer some
ascertainable loss of money or property in order to have
standing to bring a CUTPA action, once the standing
requirements set by the ascertainable loss clause have
been satisfied, a successful plaintiff may recover not only
for those financial losses but for any and all actual
damages. Relying on DiNapoli v. Cooke, 43 Conn. App.
419, 427, 682 A.2d 603, cert. denied, 239 Conn. 951, 686
A.2d 124 (1996), cert. denied, 520 U.S. 1213, 117 S.Ct.
1699, 137 L.Ed.2d 825 (1997), the plaintiffs further
contend that the term “actual damages” is synonymous
with compensatory or general damages and excludes only
special damages such as nominal and punitive damages.
Certainly, they contend, that term is sufficiently
expansive to encompass personal injuries.

 53a
The defendants’, by contrast, argue that the
ascertainable loss clause modifies and cabins the meaning
of the actual damages clause. In their view, the fact that
a plaintiff must have suffered some manner of financial
loss to bring a CUTPA action implies that the legislature
intended to limit recovery to damages of that sort.
Insofar as both of these interpretations of the statutory
language are facially plausible, 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:
Connecticut Unfair Trade Practices, Business Torts and
Antitrust (2018–19 Ed.) § 6.7, pp. 849, 851. Nevertheless,
four considerations persuade us that the legislature did
not intend to bar plaintiffs from recovering for personal
injuries resulting from unfair trade practices, at least
under circumstances such as those presented here.
First, although both the plaintiffs’ and the
defendants’ interpretations of the statutory language are
facially plausible, the plaintiffs’ reading of § 42-110g (a)
is more reasonable. While the term “actual damages” is
not defined in CUTPA, the term is used in other statutes
in such a manner as to leave no doubt that actual
damages include personal injuries. For example, General
Statutes § 53-452 (a) provides in relevant part that “[a]ny
person whose property or person is injured by [a
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).
36

 54a
computer crime committed in violation of] section 53-451
may bring a civil action in the Superior Court to enjoin
further violations and to recover the actual damages
sustained by reason of such violation . . . .” (Emphasis
added.)
In addition, the plaintiffs’ interpretation of the statute
better comports with our analysis in Hinchliffe v.
American Motors Corp., supra, 184 Conn. at 612–20, 440
A.2d 810. In that case, we considered the closely related
question of whether the “ascertainable loss” requirement
means that a CUTPA plaintiff must be able to prove that
he or she has suffered actual damages in a particular
amount. Id., at 612–13, 440 A.2d 810. We rejected that
reading of the statute, concluding that the ascertainable
loss and actual damage clauses of § 42-110g (a) serve
distinct purposes and that the legislature did not intend
the term “ascertainable” to modify “actual damages.”
Id., at 613–15, 440 A.2d 810. We also cited favorably the
view of one legal scholar that “the only function served
by a threshold ‘loss’ requirement in a consumer
protection statute is to guard against vicarious suits by
self-constituted attorneys general when they spot an
apparently deceptive advertisement in the newspaper, on
television or in a store window.” Id., 615 n.6, 440 A.2d
810, citing D. Rice, “New Private Remedies for
Consumers: The Amendment of Chapter 93A,” 54 Mass.
L.Q. 307, 314 (1969). That view, if correct, strongly
supports the conclusion that the presence of the
ascertainable loss clause in the statute in no way restricts
the damages that are available to plaintiffs who have
been directly and personally injured by an unfair trade
practice.
Second, we frequently have remarked that “CUTPA’s
coverage is broad and its purpose remedial.” (Internal

 55a
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 injuries 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 litigation 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
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 interpretations given by the Federal Trade Commission and the
federal courts to Section 5 (a) (1) of the Federal Trade Commission
Act . . . .”

37

 56a
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 (1984), for
example, the FTC held that a manufacturer’s failure to
adequately disclose safety risks associated with fuel
geysering in its tractors represented an unfair trade
practice that violated the FTC Act. See Id. In reaching
this conclusion, the FTC relied on the fact that fuel
geysering 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
limitations, lasting psychological harm, and severe
disfigurement. . . . 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.”
(Citations omitted.) Id., at 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).
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. at 1064.
38

 57a
Of particular relevance to the present action, the FTC
has, on multiple occasions, found violations of the FTC
Act when companies have advertised or promoted their
products in a manner that is likely to result in physical
injury, even in the absence of product sales. For
example, the FTC has required companies to refrain
from advertising that depicts young children operating
bicycles and tricycles in an unsafe or unlawful manner; In
re AMF, Inc., 95 F.T.C. 310, 313–15 (1980); advertising
the use of electric hairdryers by children in close
proximity to a filled bathroom sink; See In re Mego
International, Inc., 92 F.T.C. 186, 187, 189–90 (1978);
and advertising 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
giveaways that expose young children to unguarded
razor blades. See 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 unreasonable risk of harm to person or
property and, therefore, constituted unfair trade
practices.
In 1997, Federal Trade Commissioner Roscoe B.
Starek III underscored the FTC’s interest in combating
unfair trade practices that may result in physical injuries
to children: “Although injury must be both substantial
and likely” to draw the FTC’s attention, “unwarranted
health or safety risks can suffice.” R. Starek III, “The
ABCs at the FTC: Marketing and Advertising to
Children,” Address at the Minnesota Institute of Legal
Education
(July
25,
1997),
available
at
https://www.ftc.gov/public-statements/1997/07/abcs-ftcmarketing-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

 58a
to children. See, e.g., Federal Trade Commission,
Report to Congress, “Marketing Violent Entertainment
to Children: A Sixth Follow-up Review of Industry
Practices in the Motion Picture, Music Recording &
Electronic Game Industries (December, 2009), available
at 2009 WL 5427633. It is clear, then, that wrongful
advertising that poses a genuine risk of physical harm
falls under the broad purview of the FTC Act and, by
incorporation, CUTPA.
Fourth, we observe that courts in several of our sister
states have concluded that victims of unfair trade
practices may recover for personal injuries. See, e.g.,
Pope v. Rollins Protective Services Co., 703 F.2d 197, 203
(5th Cir. 1983) (applying Texas law); Maurer v.
Cerkvenik-Anderson Travel, Inc., 181 Ariz. 294, 297–98,
890 P.2d 69 (App. 1994); Maillet v. ATF-Davidson Co.,
407 Mass. 185, 192, 552 N.E.2d 95 (1990). Although we
recognize that the statutory language at issue in those
cases was not identical to the language at issue in this
case, we nevertheless find it significant that sister courts
have understood personal injuries to fall within the scope
of the harms to which broadly worded consumer
protection statutes are directed. In addition, we note
that a majority of Connecticut trial courts addressing the
issue have concluded that damages for personal injuries
can be recovered under CUTPA. 12 R. Langer et al.,
supra, § 6.7, p. 850. For all of these reasons, we conclude
that, at least with respect to wrongful advertising claims,
personal injuries alleged to have resulted directly from
such advertisements are cognizable under CUTPA.

 59a
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
plaintiffs’ wrongful death claims. Our review of the
federal statute persuades us that the trial court correctly
concluded that CUTPA, as applied to the plaintiffs’
allegations, falls within one of PLCAA’s exceptions.
A
PLCAA Overview
PLCAA generally affords manufacturers and sellers
of firearms 39 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; permits civil
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).
39

 60a
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 [firearm], 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 marketing 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.) Webster Bank v.
Oakley, 265 Conn. 539, 555, 830 A.2d 139 (2003), cert.
denied, 541 U.S. 903, 124 S.Ct. 1603, 158 L.Ed.2d 244
(2004). “If the text of a statute is ambiguous, then we
must construct an interpretation consistent with the
primary purpose of the statute as a whole. . . . Thus, our
interpretive process will begin by inquiring whether the
plain language of [the] statute, when given its ordinary,
common meaning . . . is ambiguous.” (Citations omitted;
internal quotation marks omitted.) Id., at 555–56, 830
A.2d 139. In assessing ambiguity, the meaning of the

 61a
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 consider the text of
the predicate exception itself, the broader statutory
framework, the congressional statement 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
reading of the statutory language is the better one, we
recognize that the defendants’ interpretation is not
implausible. Therefore, in part V C of the opinion, we
also review various extrinsic sources of congressional
intent to resolve any ambiguities. Our review of both the
statutory language and these extrinsic sources persuades
us that Congress did not mean to preclude actions
alleging that firearms companies violated state consumer
protection laws by promoting their weapons for illegal,
criminal purposes.

 62a
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 construed it in this
manner; see Smith & Wesson Corp. v. Gary, 875 N.E.2d
422, 431, 434–35 and n.12 (Ind. App. 2007) (predicate
exception unambiguously applies to any state law capable
of being applied to sale or marketing of firearms),
transfer denied, 915 N.E.2d 978 (Ind. 2009).
It is true that secondary dictionary definitions of
“applicable” might support a narrower reading of the
predicate exception. Webster’s Third New International
Dictionary, for example, also defines “applicable” as “fit,
suitable, or right to be applied: appropriate . . . relevant .

 63a
. . .” Webster’s Third New International Dictionary,
supra, p. 105. Pursuant to such definitions, the Ninth
Circuit concluded, it would not be unreasonable to read
PLCAA to exempt only those state laws that are
exclusively relevant to the sale or marketing of firearms.
See Ileto v. Glock, Inc., supra, 565 F.3d at 1134.
If Congress had intended to limit the scope of the
predicate exception to violations of statutes that are
directly, expressly, or exclusively applicable to firearms,
however, it easily could have used such language, as it
has on other occasions. 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).

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) (“securities 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”).
41

 64a
2
The Statutory Framework
In construing the predicate exception, we also must
consider the broader statutory framework.
The
plaintiffs’ contention that CUTPA qualifies as a predicate
statute as applied to their wrongful marketing claims
finds additional support in the repeated statutory
references to laws that govern the marketing of firearms.
There is no doubt that statutes that govern the
advertising and marketing of firearms potentially qualify
as predicate statutes. The predicate exception expressly
provides that the “qualified civil liability actions” from
which firearms sellers are immune shall not include “an
action in which a manufacturer or seller of a [firearm]
knowingly violated a State or Federal statute applicable
to the sale or marketing of the [firearm] . . . .” 42
(Emphasis added.) 15 U.S.C. § 7903 (5) (A) (iii) (2012).
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
42

 65a
Importantly, however, at the time PLCAA was
enacted, no federal statutes directly or specifically
regulated the marketing or advertising of firearms. In
addition, only a handful of states have enacted firearm
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 additional support in the 2018 edition of 22 C.F.R. § 123.4 (a)
(3), which permits the temporary importation of certain defense
articles, including arms, if an item “[i]s imported for the purpose of
exhibition, demonstration or marketing in the United States and is
subsequently returned to the country from which it was imported . .
.” This is consistent with the more restrictive definition of
“marketing” in other federal regulations. See, e.g., 45 C.F.R. §
164.501 (2018). Several recently proposed federal bills that would
have regulated the firearms industry provide further support. H.R.
5093, 113th Cong. (2014), for example, which would have directed the
FTC to “promulgate rules . . . to prohibit any person from marketing
firearms to children”; id., § 2 (a); barred advertising practices such
as “the use of cartoon characters to promote firearms and firearms
products.” Id., § 2 (a) (1). Also instructive is H.R. 2089, 115th Cong.
(2017). One provision of that bill would have prohibited “the
manufacture, importation, sale, or purchase by civilians of the FiveseveN Pistol . . . .” Id., § 2 (b) (2). Another provision references “the
current or historical marketing of the firearm’s capabilities . . . .” Id.,
§ 3 (b).

 66a
specific laws that address in any way the marketing
function, and none of those purports to comprehensively
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 applicable 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, deceptive, and other
forms of wrongful advertising are regulated principally
through unfair trade practice laws such as the FTC Act
and its state analogues. 45 We must presume that
Congress was aware, when it enacted PLCAA, that both
the FTC Act and state analogues such as CUTPA have
See Cal. Bus. & Prof. Code § 5272.1 (c) (2) (Deering Supp. 2018)
(prohibiting 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 § 11-4740 (b) (2002) (regulating advertisement of concealable 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).
43

 67a
long been among the primary vehicles for litigating
claims that sellers of potentially dangerous products such
as firearms have marketed those products in an unsafe
and unscrupulous manner. See Goodyear Atomic Corp.
v. Miller, 486 U.S. 174, 185, 108 S.Ct. 1704, 100 L.Ed.2d
158 (1988) (Congress is presumptively 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
unscrupulous.”46

The plaintiffs’ CUTPA claim is predicated on their contention that
the defendants’ “unethically, oppressively, immorally, and
unscrupulously promoted” the XM15-E2S. Commonly known as the
“cigarette rule,” that standard 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 mentioned 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 reasonably have avoided it.” Artie’s Auto
Body, Inc. v. Hartford Fire Ins. Co., 317 Conn. 602, 622 n.13, 119
A.3d 1139 (2015).
46

 68a
Ivey Barnum & O’Mara v. Indian Harbor Properties,
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
The defendants’ have not asked us to reexamine our continued
application of the cigarette rule as the standard governing unfair
trade practice claims brought under CUTPA, and, therefore, the
issue is not presently before us. We recognize, however, that a
question exists as to whether the cigarette rule should remain the
guiding rule as a matter of state law. See, e.g., id., (“[i]n light of our
conclusion . . . that the plaintiffs’ CUTPA claim fails even under the
more lenient cigarette rule, it is unnecessary for us to decide
whether that rule should be abandoned in favor of the federal test”);
Ulbrich v. Groth, supra, 310 Conn. at 429, 78 A.3d 76 (declining to
review “the defendants’ unpreserved claim that the cigarette rule
should be abandoned in favor of the substantial unjustified injury
test”); State v. Acordia, Inc., 310 Conn. 1, 29 n.8, 73 A.3d 711 (2013)
(declining to “address the issue of the viability of the cigarette rule
until it squarely has been presented”).
At the same time,
notwithstanding the questions raised in those decisions, we have
continued to apply the cigarette rule as the law of Connecticut; see,
e.g., Landmark Investment Group, LLC v. CALCO Construction &
Development Co., 318 Conn. 847, 880, 124 A.3d 847 (2015); and, even
though we have flagged the issue for reexamination by the
legislature; see Artie’s Auto Body, Inc. v. Hartford Fire Ins. Co.,
supra, 317 Conn. at 622 n.13, 119 A.3d 1139; the legislature has
continued to acquiesce in our application of the cigarette rule. In any
event, even if we were to adopt the current federal standard
governing unfair advertising, it would not bar the plaintiffs’ CUTPA
claims, as they have alleged that the defendants’ engaged in trade
practices that caused substantial, unavoidable injury and that were
not outweighed by countervailing benefits. Still, on remand, the
defendants’ are not foreclosed from arguing that a different standard
should govern the plaintiffs’ CUTPA claims.

 69a
courts.” (Internal quotation marks omitted.) CCT
Communications, Inc. v. Zone Telecom, Inc., supra, 327
Conn. at 140, 172 A.3d 1228. In New York v. Beretta
U.S.A. Corp., supra, 524 F.3d at 384, the Second Circuit
considered whether PLCAA barred the municipal
plaintiffs’ action alleging that distribution practices of the
defendant firearms manufactures and sellers violated a
New York criminal nuisance statute; see N.Y. Penal Law
§ 240.45 (McKinney 2008); by marketing guns to
legitimate buyers with the knowledge that those guns
will be diverted into illegal markets. See New York v.
Beretta U.S.A. Corp., supra, at 389–90. The court
concluded that the action should have been dismissed
because the nuisance 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 manufacturers of which the [municipal
plaintiffs] complain[ed].” Id., at 400. Notably, in
reaching that conclusion, the Second Circuit held that the
predicate exception encompasses 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., at 404. CUTPA falls squarely into
both of these categories.
Although the Ninth Circuit construed the predicate exception
more narrowly, that court also rejected a reading that would limit
predicate statutes to those that pertain exclusively to the sale or
marketing of firearms, recognizing that other statutes that regulate
“sales and manufacturing activities” could qualify. Ileto v. Glock,
Inc., supra, 565 F.3d at 1134; see also id.,at 1137 (legislative history
indicates intent to restrict liability to “statutory violations
concerning firearm[s] regulations or sales and marketing
regulations” [emphasis added]). In Ileto, the Ninth Circuit held that
47

 70a
Statutes such as the FTC Act and state analogues
that prohibit the wrongful marketing of dangerous
consumer products such as firearms represent precisely
the types of statutes that implicate and have been applied
to the sale and marketing of firearms. In the early 1970s,
for example, the FTC entered into consent decrees with
three firearms sellers relating to allegations that they
had precluded their dealers from advertising their guns
at lower than established retail prices. 48 A few years
later, the FTC ordered Emdeko International, Inc., a
marketing company, to refrain from predatory and
misleading advertising regarding various consumer
products, including firearms.
See In re National
Housewares, Inc., 90 F.T.C. 512, 516, 587–88, 601–603
(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. CV88-508292, 1991 WL 204385 (September 27, 1991), the
plaintiff prevailed on his claim that the defendant gun
dealer’s sales practices relating to the sale of a Ruger
pistol and three remanufactured semiautomatic rifles

the California laws at issue did not qualify as predicate statutes, but
it reached that conclusion primarily because (1) California had
codified its common law of tort, which remained subject to judicial
evolution; id., at 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., at 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, 1107–1108 (1971).

 71a
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
In another Connecticut case, Ganim v. Smith & Wesson Corp.,
supra, 258 Conn. at 313, 780 A.2d 98, 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., at 334–35, 780 A.2d 98. Because the
municipal plaintiffs lacked standing, however, we did not rule on the
validity of their CUTPA claims. See id., at 343, 373, 780 A.2d 98.
A CUTPA violation also was alleged on the basis of conduct
similar to that at issue in the present case in Wilson v. Midway
Games, Inc., 198 F. Supp.2d 167 (D. Conn. 2002). In that case, the
plaintiff’s son had been stabbed to death by a friend who had become
obsessed with a violent interactive video game. Id., at 169. The
plaintiff alleged, among other things, that the defendant
manufacturer of that game violated CUTPA by aggressively and
inappropriately marketing the game to a vulnerable adolescent
audience. See id., at 175–76. The court dismissed the CUTPA claim
for failure to comply with CUTPA’s statute of limitations. Id., at 176.
In Izzarelli v. R.J. Reynolds Tobacco Co., 117 F. Supp.2d 167, 170–71
(D.Conn. 2000), by contrast, the court denied a motion to dismiss the
plaintiff’s claim that the defendant violated CUTPA by unethically
marketing tobacco products to minors.
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,
49

 72a
consumer protection statutes such as CUTPA long have
been an established mechanism for regulating the
marketing 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
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 distributors 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, 169–72, 181–84 (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, 622–24 (1980) (advertisements depicting children riding
bicycles unsafely or illegally); In re AMF, Inc., supra, 95 F.T.C. at
313–15 (advertisements representing young children riding bicycles
and tricycles in improper, unsafe or unlawful manner); In re Mego
International, Inc., supra, 92 F.T.C. at 189–90 (advertisements
depicting children using electrical toys and appliances near water
without adult supervision); In re Uncle Ben’s, Inc., supra, 89 F.T.C.

 73a
Unfairness: An Essay,” 46 Wayne L. Rev. 1935, 1962,
1974 (2000). Although Congress temporarily curtailed
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., 127 F.T.C. 379 (1999), the commission prohibited
the publication of advertisements that portrayed young
adult passengers consuming alcohol while sailing, in a
manner that was unsafe and depicted activities that “may
also violate federal and state boating safety laws.” Id., at
380.
The consent decree prohibited the “future
dissemination . . . of any . . . advertisement that . . .
depicts activities that would violate [federal laws that
make] it illegal to operate a vessel under the influence of
alcohol or illegal drugs.” (Citations omitted.) In re Beck’s
North America, Inc., File No. 982-3092, 1998 FTC
LEXIS 83, *15–16, 1998 WL 456483, *6-7 (F.T.C. August
6, 1998). More generally, the FTC cautioned that it
“ha[d] substantial concern about advertising that depicts
conduct that poses a high risk to health and safety. As a
at 136 (advertisements depicting children attempting to cooking food
without close adult supervision); In re Hudson Pharmaceutical
Corp., 89 F.T.C. 82, 86–89 (1977) (advertisements that might induce
children to take excessive amounts of vitamin supplements); In re
General Foods Corp., 86 F.T.C. 831, 839–40 (1975) (advertisements
depicting consumption of raw plants growing in wild or natural
surroundings); 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).

 74a
result, the [FTC] will closely scrutinize such
advertisements in the future.” Id., at *6, 1998 FTC
LEXIS 83, at *15. 52
Because Congress clearly intended that laws
governing the marketing of firearms would qualify as
predicate statutes, and because Congress is presumed to
be aware that the wrongful marketing of dangerous
items such as firearms for unsafe or illegal purposes
traditionally has been and continues to be regulated
primarily by consumer protection and unfair trade
practice laws rather than by firearms specific statutes,
we conclude that the most reasonable reading of the
statutory framework, in light of the decision of the
Second Circuit in New York v. Beretta U.S.A. Corp.,
supra, 524 F.3d at 384, is that laws such as CUTPA
qualify as predicate statutes, insofar as they apply to
wrongful advertising claims. 53
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. Specifically, the court suggested
that a predicate statute must either concern “firearm[s] regulations
or sales and marketing regulations.” (Emphasis added.) Ileto v.
Glock, Inc., 565 F.3d at 1137; see also id., at 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.
52

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3
The Statement of Findings and Purposes
When it drafted PLCAA, Congress included a
statement 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 . . . .” (Citations omitted;
emphasis added.) Notably, this provision, which
expressly references various firearms specific laws,
makes no mention of the marketing function. By
contrast, the very next finding expressly references the
“lawful . . . marketing — of firearms . . . .” 54 15 U.S.C. §
7901 (a) (5) (2012). Reading these two findings in
concert, it is clear that Congress chose not to abrogate
the well established duty of firearms sellers to market
their wares legally and responsibly, even though no
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 products that
function as designed and intended.”
54

 76a
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 at 1158 (Berzon, J.,
concurring in part and dissenting in part) (same). The
statement of findings and purposes further provides that
the purpose of PLCAA is “[t]o preserve a citizen’s access
to a supply of firearms and ammunition for all lawful
purposes, including hunting, self- defense, collecting, and
competitive or recreational shooting.” (Emphasis added.)
15 U.S.C. § 7901 (b) (2) (2012). In the present case, the
plaintiffs allege that the defendants’ illegally marketed
the XM15-E2S by promoting its criminal use for
offensive civilian assaults, and that this wrongful
advertising was a direct cause of the Sandy Hook
massacre.
At no time and in no way does the
congressional statement indicate that firearm sellers
should evade liability for the injuries that result if they
promote the illegal use of their products.
Third, the findings make clear that Congress sought
to preclude only novel civil actions that are “based on
theories without foundation in hundreds of years of the
common law and jurisprudence of the United States and
do not represent a bona fide expansion of the common
law,” recognition of which “would expand civil liability in
a manner never contemplated . . . by Congress . . . or by

 77a
the legislatures of the several States.” 15 U.S.C. § 7901
(a) (7) (2012). As we previously discussed, however, it is
well established that the FTC Act and state analogues
such as CUTPA not only govern the marketing of
firearms, but also prohibit advertisements that promote
or model the unsafe or illegal use of potentially
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
statement of findings and purposes that purportedly
disqualifies CUTPA, as applied to the plaintiffs’ wrongful
marketing theory, as a potential predicate statute.
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. Moreover, even under the
current federal unfairness standard, one of the FTC’s primary areas
of focus in challenging unfair trade practices has been “advertising
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 violated
CUTPA by unethically and unscrupulously marketing cigarettes to
underage smokers and encouraging minors to violate law).
55

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Specifically, the statement emphasizes the importance of
preserving the rights enshrined in the second
amendment to the United States constitution. See 15
U.S.C. § 7901 (a) (1), (2) and (6) (2012).
There is no doubt that congressional supporters of
PLCAA were committed to Americans’ second
amendment freedoms and sought to secure those
freedoms by immunizing firearms companies from
frivolous lawsuits. It is not at all clear, however, that the
second amendment’s protections even extend to the types
of quasi-military, semiautomatic assault rifles at issue in
the present case. See District of Columbia v. Heller, 554
U.S. 570, 627, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008)
(indicating that second amendment’s protection does not
extend to “‘dangerous and unusual weapons’” and,
therefore, that M16s and related military style rifles may
be banned); Kolbe v. Hogan, 849 F.3d 114, 143 (4th Cir.)
(reading Heller to mean that second amendment does not
protect right to possess assault weapons featuring high
capacity magazines, such as AR-15), cert. denied, --- U.S.
---, 138 S.Ct. 469, 199 L.Ed.2d 374 (2017); New York State
Rifle & Pistol Assn., Inc. v. Cuomo, 804 F.3d 242, 257 (2d
Cir. 2015) (assuming for sake of argument that second
amendment does apply to semiautomatic assault weapons
such as AR-15 but upholding outright prohibitions
against civilian ownership of such weapons), cert. denied
sub nom. Shew v. Malloy, --- U.S. ---, 136 S.Ct. 2486, 195
L.Ed.2d 822 (2016); see also Friedman v. Highland
Park, 784 F.3d 406, 410–12 (7th Cir.), cert. denied, --U.S. ---, 136 S.Ct. 447, 193 L.Ed.2d 483 (2015); Fyock v.
Sunnyvale, 779 F.3d 991, 999 (9th Cir. 2015); Heller v.
District of Columbia, 670 F.3d 1244, 1261 (D.C. Cir.
2011).
Accordingly, we conclude that, on balance,
PLCAA’s statement of findings and purposes also bears

 79a
out the plaintiffs’ interpretation of the statute, namely,
that illegal marketing is not protected. 56
4
Absurd Result
We next address the defendants’ argument that
construing a statute of general applicability such as
CUTPA to be a predicate statute would lead to an absurd
result. As one judge has articulated, “the predicate
exception cannot possibly encompass every statute that
might be ‘capable of being applied’ to the sale or
We further note that among the stated purposes of PLCAA was
“[t]o protect the right, under the First Amendment to the
Constitution, of manufacturers, distributors, dealers, and importers
of firearms or ammunition products, and trade associations, to speak
freely . . . .” 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
amendment
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. at
307, 39 A.3d 1065. 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.
56

 80a
manufacture of firearms; if it did, the exception would
swallow the rule, and no civil lawsuits would ever be
subject to dismissal under . . . PLCAA.” (Emphasis
omitted.) Ileto v. Glock, Inc., supra, 565 F.3d at 1155
(Berzon, J., concurring in part and dissenting in part).
Of course, to surmount PLCAA immunity via the
predicate exception, there must be at least a colorable
claim that a defendant has, in fact, violated some statute,
resulting in harm to the plaintiff. Accordingly, Judge
Berzon’s argument appears to be predicated on the
assumptions that (1) most states have public nuisance
statutes or similar laws, such as the California nuisance
statutes at issue in Ileto, and (2) virtually any action
seeking to hold firearms sellers liable for third-party gun
violence could allege a colorable violation of those
statutes because the mere act of selling the weapons
involved might be deemed to create a public nuisance.
We will assume, without deciding, that Judge Berzon
is correct that, as a general matter, the predicate
exception cannot be so expansive as to fully encompass
laws such as public nuisance statutes insofar as those
laws reasonably might be implicated in any civil action
arising from gun violence. 57 Although we believe that the
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 at 401 (discussing whether state statute at issue had been
applied to firearms suppliers “for conduct like that complained of by
the [plaintiff]”); id., at 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
57

 81a
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 determination 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
unscrupulous 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 immunize.
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
exception are divided as to whether the exception
unambiguously encompasses laws, such as CUTPA, that
do not expressly regulate firearms sales and marketing
but are nevertheless capable of being and have been
applied thereto. Compare Ileto v. Glock, Inc., supra, 565
F.3d at 1133–35 (predicate exception is ambiguous), and
New York v. Beretta U.S.A. Corp., supra, 524 F.3d at 401
(same), with Smith & Wesson Corp. v. Gary, 875 N.E.2d
422, 431, 434 and n.12 (Ind.App. 2007) (predicate
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.

 82a
exception unambiguously applies), and New York v.
Beretta U.S.A. Corp., supra, at 405–407 (Katzmann, J.,
dissenting) (same). In part V B of this opinion, we
explained why the plain text of 15 U.S.C. § 7903 (5) (A)
(iii) strongly suggests that CUTPA, as applied to the
plaintiffs’ claims, qualifies as a predicate statute. In this
part, we explain why extrinsic indicia of congressional
intent support the same conclusion. These indicia include
canons of statutory construction, closely related
legislation, and the legislative history of PLCAA.
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
application of canons of statutory construction and,
failing that, through review of the legislative history.
E.g., United States v. Rowland, 826 F.3d 100, 108 (2d
Cir. 2016), cert. denied, --- U.S. ---, 137 S.Ct. 1330, 197
L.Ed. 2d 517 (2017). In the present case, three canons of
construction are potentially relevant.
a
Clear Statement Requirement
We begin with the well established canon that a
federal law is not to be construed to have superseded the
historic police powers of the states unless that was the
clearly expressed and manifest purpose of Congress.
E.g., Cipollone v. Liggett 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.

 83a
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, 164
Cal. Rptr. 510, 610 P.2d 407 (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
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 principles 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 . . . .”
(Citations 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 omitted;
internal quotation marks omitted.) Id., at 858, 134 S.Ct. 2077. These
principles apply with particular force to congressional legislation
that potentially intrudes into a field, such as advertising, that
58

 84a
In the case of PLCAA, there is no indication in the
statutory text or statement of findings and purposes that
Congress intended to restrict the power of the states to
regulate wrongful advertising, particularly advertising
that encourages consumers to engage in egregious
criminal conduct. Indeed, sponsors of the legislation
repeatedly emphasized during the legislative hearings
that they did not intend to abrogate well established legal
principles. 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 advertising 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.
Specifically, 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 persuaded.
When it drafted the predicate exception, Congress set
forth two examples of statutes that are applicable to the
traditionally has been occupied by the states. See Altria Group, Inc.
v. Good, supra, 555 U.S. at 77, 129 S.Ct. 538.
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.

 85a
sale or marketing of firearms. PLCAA provides that
entities engaged in the firearms business are not immune
from liability with respect to “an action in which a
manufacturer or seller of a [firearm] knowingly violated a
State or Federal statute applicable to the sale or
marketing of the [firearm] . . . including—
“(I) any case in which the manufacturer or seller
knowingly made any false entry in, or failed to make
appropriate entry in, any record required to be kept
under Federal or State law with respect to the [firearm],
or aided, abetted, or conspired with any person in making
any false or fictitious oral or written statement with
respect to any fact material to the lawfulness of the sale
or other disposition of a [firearm]; or
“(II) any case in which the manufacturer or seller
aided, abetted, or conspired with any other person to sell
or otherwise dispose of a [firearm], knowing, or having
reasonable cause to believe, that the actual buyer of the
[firearm] was prohibited from possessing or receiving a
firearm . . . under subsection (g) or (n) of section 922 of
title 18 [of the United States Code] . . . .” 61 15 U.S.C. §
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 individuals 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),
61

 86a
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
specific examples thereof. In those cases, when the scope
of the general category is unclear, a presumption, albeit a
rebuttable one, may arise that the general category
encompasses only things similar in nature to the specific
examples that follow. See, e.g., 2A N. Singer & S. Singer,
Statutes and Statutory Construction (7th Ed. 2014) §
47:17, pp. 364–68. Several courts have acknowledged the
potential relevance of the canon when construing the
predicate exception. See, e.g., New York v. Beretta
U.S.A. Corp., supra, 524 F.3d at 401–402. It is well
established, however, that ejusdem generis, like other
canons of construction, is merely a tool to assist us in
gleaning the intent of Congress; it should not be applied
in the face of a contrary 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
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.

 87a
exceptions when drafting the final version of the
predicate exception.
Bills substantially similar to
PLCAA had been introduced in both the 107th Congress
and the 108th Congress. See S. 1805, 108th Cong. (2003),
H.R. 1036, 108th Cong. (2003); H.R. 2037, 107th Cong.
(2001). Those bills contained the same exemption for
“State or Federal statute[s] applicable to the sale or
marketing of [firearms]” that ultimately was codified at
15 U.S.C. § 7903 (5) (A) (iii). H.R. 2037, supra, § 4; accord
S. 1805, supra, § 4; H.R. 1036, supra, § 4. Notably,
however, they did not include the record keeping or the
unlawful buyer exception. Indeed, they did not offer any
specific examples of predicate statutes.
The legislative history indicates that the record
keeping and unlawful buyer illustrations were added to
the bill that became law during the 109th Congress not to
define or clarify the narrow scope of the exception but,
rather, because, in 2002, two snipers had terrorized the
District of Columbia and surrounding areas. One of the
snipers allegedly stole a Bushmaster XM-15
semiautomatic rifle identical or similar to the one at issue
in the present case from a gun dealer with a history of lax
inventory control procedures. 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
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.
62

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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
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 documented 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
64

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The most reasonable interpretation of this legislative
history, then, is that the record keeping and unlawful
buyer illustrations were included in the final version of
PLCAA not in an effort to define, clarify, or narrow the
universe of laws that qualify as predicate statutes but,
rather, simply to stave off the politically potent attack
that PLCAA would have barred lawsuits like the one that
had arisen from the widely reported Beltway sniper
attacks. There is no other plausible explanation for why
Congress chose to modify the predicate exception
language contained in the 2001 and 2003 bills, which
otherwise was “virtually identical” to the language in
PLCAA. 151 Cong. Rec. 2561 (2005), remarks of Senator
Larry Edwin Craig; see also id., 18,096, remarks of
Senator Craig (indicating that bill is same for all intents
and purposes as version introduced during 108th
Congress, with addition of clarifying examples).
This conclusion is bolstered by the fact that Congress
was fully aware that there are many types of federal
statutes and regulations, filling “hundreds of pages,” that
specifically govern the firearms industry. 151 Cong. Rec.
18,059 (2005), remarks of Senator Thomas Allen Coburn.
Indeed, 18 U.S.C. § 922 is dedicated to delineating dozens
of different unlawful acts relating to the production,
distribution, and sale of firearms. Congress could have
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).

 90a
simply identified 18 U.S.C. § 922, or the other federal
firearms laws to which Senator Coburn alluded, as
examples of predicate statutes. Instead, the author of
PLCAA opted to highlight only the two specific
subsections of 18 U.S.C. § 922—subsection (g) and (n)—
that would have barred the Beltway snipers from
obtaining the weapon used in the shootings.
Under similar circumstances, when it is clear that
examples have been included in a statute for purposes of
emphasis or in response to recent, high profile events,
rather than to restrict the scope of coverage, both the
United States Supreme Court and the lower federal
courts have declined to apply canons, including ejusdem
generis, to construe a statutory provision overly
narrowly. 68 For similar reasons, we conclude that the
ejusdem generis canon is not applicable to the predicate
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, contending that
the predicate exception, like other statutory exceptions,
must be construed narrowly to preserve the primary
purpose of PLCAA. As we explained, however, our
review of the statutory language strongly suggests that
the defendants’ have misperceived the primary purpose
of PLCAA, which is not to shield firearms sellers from
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).
68

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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
legislation that ultimately became PLCAA was
introduced, bills were introduced in both the House of
Representatives and the Senate that would have
bestowed PLCAA-type immunity on fast food restaurant
companies to protect them from lawsuits seeking to hold
them liable for consumers’ obesity and related health
problems. 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
accompanying 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
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 protects 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).
69

 92a
U.S.C. § 301 et seq. (2012); that directly and specifically
regulate 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. 8H.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
products that implicate different risks and concerns.
Nevertheless, 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
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.
71

 93a
applicable to” in 15 U.S.C. § 7903 (5) (A) (iii) as similarly
encompassing an action under CUTPA against a
company that unethically markets firearms for illegal
purposes.
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 persuades
us that Congress did not intend to limit the scope of the
predicate exception to violations of firearms specific laws
or to confer immunity from all claims alleging that
firearms sellers violated unfair trade practice laws.
During the legislative debates, opponents of the
proposed legislation that became PLCAA repeatedly
questioned why it was necessary to confer immunity on
the firearms industry when, in their view, only a very
small number of gun violence related lawsuits had been
filed against firearms manufacturers and distributors,
most of which had been dismissed at the trial court
level. 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 misconduct
in selling the weapons involved.
See id.
Many
proponents indicated that their intent was to preclude
See, e.g., 151 Cong. Rec. 18,099 (2005), remarks of Senator
Christopher John Dodd.

73

 94a
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
cosponsor of the legislation explained, “[t]his bill is only
intended to protect law-abiding members of the firearms
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 lawsuit.” 75 151 Cong.
Rec. 18,104 (2005), remarks of Senator Max Sieben
Baucus. 76 In the present action, by contrast, the private
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
manufacturers 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 Senator Coburn.
74

 95a
victims of one specific incident of gun violence seek
compensation from the producers and distributors 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 plaintiff’s
injuries and was, in essence, being held strictly liable for
crimes committed with firearms that it had merely
produced or distributed. See Ileto v. Glock, Inc., supra,
565 F.3d at 1159 (Berzon, J., concurring in part and
dissenting in part).
One cosponsor, for example,
emphasized that “the heart of this bill” was that one can
be held liable for violating a statute during the
production, distribution, or sale of firearms, “[b]ut we are
not going to extend it to a concept where you are
responsible, after you have done everything right, for
what somebody else may do who bought your product
and they did it wrong and it is their fault, not yours.”
(Emphasis added.) 151 Cong. Rec. 18,920 (2005), remarks
of Senator Lindsey O. Graham. Another cosponsor
explained the essential evil to which the bill was directed:
“It is out of that fear and concern that we have mayors
and cities passing laws that create strict liability . . .
[Firearms sellers have] become . . . insurer[s] against
criminal activity by criminals.” Id., 18,924, remarks of
Senator Jefferson Beauregard Sessions III. Senator
Sessions added: “That is what we are trying to curtail
here—this utilization of the legal system . . . .” Id.

 96a
A common theme running through supporters’
statements was that holding a firearms seller liable for
third-party gun violence for which the seller is wholly
blameless is no different from holding producers of
products such as automobiles, matches, baseball bats,
and knives strictly liable when those ubiquitous but
potentially dangerous items are inappropriately or
illegally used to commit crimes. As the author of
PLCAA, Senator Craig, explained: “If a gun
manufacturer is held liable for the harm done by a
criminal who misuses a gun, then there is nothing to stop
the manufacturers of any product used in crimes from
having to bear the costs resulting from the actions of
those criminals. So as I mentioned earlier, automobile
manufacturers will have to take the blame for the death
of a bystander who gets in the way of the drunk driver.
The local hardware store will have to be held responsible
for a kitchen knife it sold, if later that knife is used in the
commission 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 producer or distributor of a
consumer product bears absolutely 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 liability 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

 97a
is, in essence, what the plaintiffs have alleged in the
present case.
To the extent that supporters of PLCAA were
concerned with lawsuits other than those seeking to hold
firearms sellers strictly liable for gun violence, they
consistently expressed that their intention was to
foreclose novel legal theories that had been developed by
anti-gun activists with the goal of putting firearms sellers
out of business. 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 at 1135 (“Congress
clearly intended to preempt common-law claims, such as
general tort theories of liability”); id., at 1160–61
(Berzon, J., concurring in part and dissenting in part)
(“[PLCAA] was viewed essentially as a [tort reform]
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 Representative Frank James Sensenbrenner, Jr.
77

 98a
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 September 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 marketing 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

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 “mercenary” 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 at 491 and n.9, 110 Cal.
Rptr.2d 370, 28 P.3d 116 (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).
79

 99a
unreasonable risk that viewers would engage in unsafe or
illegal conduct. 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 at 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.
80

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The defendants’, purporting to rely on the decision of
the Ninth Circuit in Ileto, argue that the legislative
history of PLCAA supports a more restrictive view of the
scope of the predicate exception.
We read Ileto
differently. As we noted; see footnote 47 of this opinion;
the court in that case concluded that “congressional
speakers’ statements concerning the scope of . . . PLCAA
reflected the understanding that manufacturers and
sellers of firearms would be liable only for statutory
violations concerning firearm[s] regulations or sales and
marketing regulations.” (Emphasis added.) Ileto v.
Glock, Inc., supra, 565 F.3d at 1137. Because CUTPA
specifically regulates commercial sales and marketing
activities such as those at issue in the present case; see,
e.g., Izzarelli v. R.J. Reynolds Tobacco Co., 117 F.
Supp.2d 167, 178 (D. Conn. 2000); it falls squarely within
the predicate exception, as Ileto construed the legislative
history.
We do not dispute that, over the course of the
hundreds 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
What the defendants’ have overlooked,
specific. 81
however, 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
exception was discussed during the legislative debates,
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.
81

 101a
proponents spoke in broad, general terms, indicating that
the bill would not immunize firearms companies that had
engaged in any illegal activity. 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
manufacturers 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 applicable [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 dealers . . . who have abided by the law . . . [but] allows suits
against manufacturers . . . 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
82

 102a
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
negligence 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
manufacturer for conduct [that] is in violation of law. So
by definition that would be an exemption from the
provisions 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 precluded
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
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
immunity 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”).

 103a
(“[v]irtually any act that would meet the definition of
gross negligence . . . would already be a violation 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
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] specifically 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

83

 104a
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 industry. Well
recognized causes of action are protected by the bill.
Plaintiffs can still argue their cases for violations of law . .
. .” 84 Id., 18,096. Accordingly, we conclude that the
lawsuits not prohibited . . . lawsuits based on violations of [state] and
[f]ederal law”); id., 18,057–58 (“Any manufacturer, distributor, 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 knowingly violates a [s]tate or [f]ederal law will
not be thrown out.” [Emphasis added.]); id., 18,061 (“[This bill] does
not protect firearms . . . manufacturers, 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]egligence 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).

 105a
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
credible allegations that a firearms seller had run explicit
advertisements depicting and glorifying school shootings,
and promoted its products in video games, such as
“School Shooting,” that glorify and reward such unlawful
conduct, 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 seeking to hold the
supplier accountable for the injuries wrought by such
unscrupulous marketing practices. That is not this case,
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.
85

 106a
and yet the underlying legal principles are no different.
Once we accept the premise that Congress did not intend
to immunize firearms suppliers who engage in truly
unethical and irresponsible marketing practices
promoting criminal conduct, and given that statutes such
as CUTPA are the only means available 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.
Specifically, if the defendants’ did indeed seek to expand
the market for their assault weapons through advertising
campaigns that encouraged consumers to use the
weapons 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

 107a
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.
DISSENT
ROBINSON, J., with whom VERTEFEUILLE and
ELGO, Js., join, dissenting in part.
In 2005, Congress enacted the Protection of Lawful
Commerce in Arms Act (arms act), 15 U.S.C. § 7901 et
seq., to preempt what it had deemed to be frivolous
lawsuits against the firearms industry arising from the
proliferation of gun related deaths resulting from
criminal activity in cities and towns across the country.
See 15 U.S.C. § 7901 (2012) (articulating findings and
purposes underlying arms act). 1 That preemption is not,
Section 7901 of title 15 of the United States Code provides: “(a)
Findings “Congress finds the following:
“(1) The Second Amendment to the United States Constitution
provides that the right of the people to keep and bear arms shall not
be infringed.
“(2) The Second Amendment to the United States Constitution
protects the rights of individuals, including those who are not
members of a militia or engaged in military service or training, to
keep and bear arms.
“(3) Lawsuits have been commenced against manufacturers,
distributors, dealers, and importers of firearms that operate as
designed and intended, which seek money damages and other relief
for the harm caused by the misuse of firearms by third parties,
including criminals.
“(4) The manufacture, importation, possession, sale, and use of
firearms and ammunition in the United States are heavily regulated
by Federal, State, and local laws. Such Federal laws include the Gun
Control Act of 1968, the National Firearms Act [26 U.S.C. § 5801 et
seq.], and the Arms Export Control Act [22 U.S.C. § 2751 et seq.].
“(5) Businesses in the United States that are engaged in interstate
and foreign commerce through the lawful design, manufacture,

1

 108a

marketing, distribution, importation, or sale to the public of firearms
or ammunition products that have been shipped or transported in
interstate or foreign commerce are not, and should not, be liable for
the harm caused by those who criminally or unlawfully misuse
firearm products or ammunition products that function as designed
and intended.
“(6) The possibility of imposing liability on an entire industry for
harm that is solely caused by others is an abuse of the legal system,
erodes public confidence in our Nation’s laws, threatens the
diminution of a basic constitutional right and civil liberty, invites the
disassembly and destabilization of other industries and economic
sectors lawfully competing in the free enterprise system of the
United States, and constitutes an unreasonable burden on interstate
and foreign commerce of the United States.
“(7) The liability actions commenced or contemplated by the Federal
Government, States, municipalities, and private interest groups and
others are based on theories without foundation in hundreds of years
of the common law and jurisprudence of the United States and do
not represent a bona fide expansion of the common law. The possible
sustaining of these actions by a maverick judicial officer or petit jury
would expand civil liability in a manner never contemplated by the
framers of the Constitution, by Congress, or by the legislatures of
the several States. Such an expansion of liability would constitute a
deprivation of the rights, privileges, and immunities guaranteed to a
citizen of the United States under the Fourteenth Amendment to the
United States Constitution.
“(8) The liability actions commenced or contemplated by the Federal
Government, States, municipalities, private interest groups and
others attempt to use the judicial branch to circumvent the
Legislative branch of government to regulate interstate and foreign
commerce through judgments and judicial decrees thereby
threatening the Separation of Powers doctrine and weakening and
undermining important principles of federalism, State sovereignty
and comity between the sister States.
“(b) Purposes
“The purposes of [the arms act] are as follows:
“(1) To prohibit causes of action against manufacturers, distributors,
dealers, and importers of firearms or ammunition products, and
their trade associations, for the harm solely caused by the criminal

 109a
however, unconditional, as there are six exceptions to the
definition of “qualified civil liability action” set forth in 15
U.S.C. § 7903 (5)(A) 2 that narrow the category of cases
or unlawful misuse of firearm products or ammunition products by
others when the product functioned as designed and intended.
“(2) To preserve a citizen’s access to a supply of firearms and
ammunition for all lawful purposes, including hunting, self-defense,
collecting, and competitive or recreational shooting.
“(3) To guarantee a citizen’s rights, privileges, and immunities, as
applied to the States, under the Fourteenth Amendment to the
United States Constitution, pursuant to section 5 of that
Amendment.
“(4) To prevent the use of such lawsuits to impose unreasonable
burdens on interstate and foreign commerce.
“(5) To protect the right, under the First Amendment to the
Constitution, of manufacturers, distributors, dealers, and importers
of firearms or ammunition products, and trade associations, to speak
freely, to assemble peaceably, and to petition the Government for a
redress of their grievances.
“(6) To preserve and protect the Separation of Powers doctrine and
important principles of federalism, State sovereignty and comity
between sister States.
“(7) To exercise congressional power under article IV, section 1 (the
Full Faith and Credit Clause) of the United States Constitution.”
2
Section 7903 (5) (A) of title 15 of the United States Code provides:
“In general “The term ‘qualified civil liability action’ means a civil
action or proceeding or an administrative proceeding brought by any
person against a manufacturer or seller of a qualified product, or a
trade association, for damages, punitive damages, injunctive or
declaratory relief, abatement, restitution, fines, or penalties, or other
relief, resulting from the criminal or unlawful misuse of a qualified
product by the person or a third party, but shall not include—
“(i) an action brought against a transferor convicted under section
924 (h) of title 18, or a comparable or identical State felony law, by a
party directly harmed by the conduct of which the transferee is so
convicted;
“(ii) an action brought against a seller for negligent entrustment or
negligence per se;

 110a
proscribed by the arms act. See 15 U.S.C. § 7902 (2012). 3
One such exception, for “an action in which a
manufacturer or seller of a [firearm, ammunition, or
“(iii) an action in which a manufacturer or seller of a qualified
product knowingly violated a State or Federal statute applicable to
the sale or marketing of the product, and the violation was a
proximate cause of the harm for which relief is sought, including—
“(I) any case in which the manufacturer or seller knowingly made
any false entry in, or failed to make appropriate entry in, any record
required to be kept under Federal or State law with respect to the
qualified product, or aided, abetted, or conspired with any person in
making any false or fictitious oral or written statement with respect
to any fact material to the lawfulness of the sale or other disposition
of a qualified product; 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
qualified product, knowing, or having reasonable cause to believe,
that the actual buyer of the qualified product was prohibited from
possessing or receiving a firearm or ammunition under subsection
(g) or (n) of section 922 of title 18;
“(iv) an action for breach of contract or warranty in connection with
the purchase of the product;
“(v) an action for death, physical injuries or property damage
resulting directly from a defect in design or manufacture of the
product, when used as intended or in a reasonably foreseeable
manner, except that where the discharge of the product was caused
by a volitional act that constituted a criminal offense, then such act
shall be considered the sole proximate cause of any resulting death,
personal injuries or property damage; or
“(vi) an action or proceeding commenced by the Attorney General to
enforce the provisions of chapter 44 of title 18 or chapter 53 of title
26.”
3
Section 7902 of title 15 of the United States Code provides: “(a) In
general “A qualified civil liability action may not be brought in any
Federal or State court.
“(b) Dismissal of pending actions
“A qualified civil liability action that is pending on October 26, 2005,
shall be immediately dismissed by the court in which the action was
brought or is currently pending.”

 111a
component part] knowingly violated a State or Federal
statute applicable to the sale or marketing of the product,
and the violation was a proximate cause of the harm for
which relief is sought”; 15 U.S.C. § 7903 (5) (A) (iii)
(2012); “has come to be known as the ‘predicate
exception,’ because a plaintiff not only must present a
cognizable claim, he or she also must allege a knowing
violation of a ‘predicate statute—so it is.’” “Ileto v. Glock,
Inc., 565 F.3d 1126, 1132 (9th Cir. 2009), cert. denied, 560
U.S. 924, 130 S.Ct. 3320, 176 L.Ed.2d 1219 (2010). In
part V of its opinion, the majority concludes that the
claims made by the plaintiffs 4 under the Connecticut
Unfair Trade Practices Act (CUTPA), General Statutes §
42-110a et seq., which are founded on a theory that
wrongful and unscrupulous advertising by the
defendants’, 5 who manufactured, distributed, and sold the
Bushmaster AR-15 rifle, Model XM15-E2S, was a
substantial factor in the criminal activity of the shooter at
the Sandy Hook School on December 14, 2012, are not
The plaintiffs at issue in the present appeal are as follows: Donna L.
Soto, administratrix of the estate of Victoria L. Soto; Ian Hockley
and Nicole Hockley, coadministrators of the estate of Dylan C.
Hockley; William D. Sherlach, executor of the estate of Mary Joy
Sherlach; Leonard Pozner, administrator of the estate of Noah S.
Pozner; Gilles J. Rousseau, administrator of the estate of Lauren G.
Rousseau; David C. Wheeler, administrator of the estate of
Benjamin A. Wheeler; Neil Heslin and Scarlett Lewis,
coadministrators of the estate of Jesse McCord Lewis; Mark Barden
and Jacqueline Barden, coadministrators of the estate of Daniel G.
Barden; and Mary D’Avino, administratrix of the estate of Rachel M.
D’Avino. See also footnote 2 of the majority opinion.
5
The defendants’ are as follows: Bushmaster Firearms
International, LLC; Freedom Group, Inc.; Bushmaster Firearms;
Bushmaster Firearms, Inc.; Bushmaster Holdings, LLC; Remington
Arms Company, LLC; Remington Outdoor Company, Inc.; Camfour,
Inc.; Camfour Holding, LLP; Riverview Sales, Inc.; and David
LaGuercia.
4

 112a
preempted by the arms act because CUTPA is a
predicate statute for purposes of the predicate exception.
Having considered the text and legislative history of the
arms act, I adopt a contrary answer to this national
question of first impression, and conclude that the
predicate exception encompasses only those statutes that
govern the sale and marketing of firearms and
ammunition specifically, as opposed to generalized unfair
trade practices statutes that, like CUTPA, govern a
broad array of commercial activities. Because the
distastefulness of a federal law does not diminish its
preemptive effect, I would affirm the judgment of the
trial court striking the plaintiff’s complaint in its entirety.
Accordingly, I respectfully dissent from part V of the
majority opinion.
I begin by noting my agreement with the facts,
procedural history, and plenary standard of review as
stated by the majority. See, e.g., Byrne v. Avery Center
for Obstetrics & Gynecology, P.C., 314 Conn. 433, 447,
102 A.3d 32 (2014) (“[w]hether state causes of action are
preempted by federal statutes and regulations is a
question of law over which our review is plenary”). I also
assume, without deciding, that the majority properly
concludes in part IV D of its opinion that, “at least with
respect to wrongful advertising claims, personal injuries
alleged to have resulted directly from such
advertisements are cognizable under CUTPA.”
Accordingly, I now turn to the pivotal question of
whether the predicate exception saves such claims under
CUTPA from preemption by the arms act.

 113a
I
GENERAL PRINCIPLES OF PREEMPTION AND
STATUTORY CONSTRUCTION
I recognize that the supremacy clause of the United
States constitution declares that “the Laws of the United
States . . . shall be the supreme Law of the Land . . . any
Thing in the Constitution or Laws of any State to the
Contrary notwithstanding.” U.S. Const., art. VI, cl. 2.
“As a consequence, state and local laws are preempted
[when] they conflict with the dictates of federal law, and
must yield to those dictates. . . . Preemption may be
either express or implied, and is compelled whether
Congress’ command is explicitly stated in the statute’s
language or implicitly contained in its structure and
purpose. . . .
“[When] a federal statute expressly preempts state or
local law, analysis of the scope of the [preemption]
statute must begin with its text. . . . And, we must also
start with the assumption that the historic police powers
of the [s]tates [are] not to be superseded . . . unless that
was the clear and manifest purpose of Congress. . . . As
such, Congress’ purpose is the ultimate touchstone of
preemption analysis.” (Citation omitted; internal
quotation marks omitted.) Modzelewski’s Towing &
Recovery, Inc. v. Commissioner of Motor Vehicles, 322
Conn. 20, 28–29, 139 A.3d 594 (2016), cert. denied, --- U.S.
---, 137 S.Ct. 1396, 197 L.Ed.2d 554 (2017).
In determining whether Congress intended the arms
act to preempt the CUTPA claims in the present case, I
turn to the principles that govern our “construction and
application of federal statutes,” under which “principles
of comity and consistency require us to follow the plain
meaning rule . . . . Moreover, it is well settled that the
decisions of [t]he [United States Court of Appeals for

 114a
the] Second Circuit . . . carry particularly persuasive
weight in the interpretation of federal statutes by
Connecticut state courts.” (Internal quotation marks
omitted.) CCT Communications, Inc. v. Zone Telecom,
Inc., 327 Conn. 114, 140, 172 A.3d 1228 (2017); see also,
e.g., Modzelewski’s Towing & Recovery, Inc. v.
Commissioner of Motor Vehicles, supra, 322 Conn. at 32,
139 A.3d 594.
“Accordingly, our analysis of the federal statutes in
the present case begins with the plain meaning of the
statute. . . . If the text of a statute is ambiguous, then we
must construct an interpretation consistent with the
primary purpose of the statute as a whole. . . . Under the
plain meaning rule, [l]egislative history and other tools of
interpretation may be relied upon only if the terms of the
statute are ambiguous. . . . Thus, our interpretive
process will begin by inquiring whether the plain
language of [each] statute, when given its ordinary,
common meaning . . . is ambiguous.” (Citations omitted;
internal quotation marks omitted.) Szewczyk v. Dept. of
Social Services, 275 Conn. 464, 476, 881 A.2d 259 (2005).
“The test to determine ambiguity is whether the statute,
when read in context, is susceptible to more than one
reasonable interpretation.” (Internal quotation marks
omitted.) State v. Agron, 323 Conn. 629, 634, 148 A.3d
1052 (2016); see also, e.g., United States v. Peterson, 394
F.3d 98, 105 (2d Cir. 2005); United States v. Dauray, 215
F.3d 257, 262 (2d Cir. 2000).
If a federal statute is ambiguous, the federal courts
do not consider all extratextual sources to be of equal
value in resolving that ambiguity. Instead, the Second
Circuit first “turn[s] to canons of statutory construction
for assistance in interpreting the statute. . . . [That
court] resort[s] to legislative history only if, after

 115a
consulting canons of statutory instruction, the meaning
remains ambiguous.”
(Citation omitted; internal
quotation marks omitted.) United States v. Rowland, 826
F.3d 100, 108 (2d Cir. 2016), cert. denied, --- U.S. ---, 137
S.Ct. 1330, 197 L.Ed. 2d 517 (2017).
Accordingly, I begin with a review of the text of the
relevant provisions of the arms act. The preemption
provision provides that “[a] qualified civil liability action
may not be brought in any Federal or State court.” 15
U.S.C. § 7902(a) (2012); see also 15 U.S.C. § 7902 (b)
(2012) (“[a] qualified civil liability action that is pending
on October 26, 2005, shall be immediately dismissed by
the court in which the action was brought or is currently
pending”). The arms act defines a “qualified civil liability
action” in relevant part as “a civil action or proceeding . .
. brought by any person against a manufacturer or seller
of a qualified product, 6 or a trade association, for
damages, punitive damages, injunctive or declaratory
relief, abatement, restitution, fines, or penalties, or other
relief, resulting from the criminal or unlawful misuse of a
qualified product by the person or a third party . . . .”
(Footnote added.) 15 U.S.C. § 7903 (5) (A) (2012). The
arms act then provides six exceptions to the definition of
qualified civil liability action; see footnote 2 of this
dissenting opinion; including the predicate exception,
which is defined as “an action in which a manufacturer or
seller of a qualified product knowingly violated a State or
It is not disputed that the AR-15 is a “qualified product” under the
arms act. See15 U.S.C. § 7903 (4) (2012) (defining “‘qualified
product’” as “firearm . . . ammunition . . . or component part . . . that
has been shipped or transported in interstate or foreign commerce”).
For the sake of convenience and clarity, I use the word “firearm” in
describing the reach of the arms act, understanding that word to be
synonymous with the definition of “qualified product” under 15
U.S.C. § 7903 (4).
6

 116a
Federal statute applicable to the sale or marketing of the
product, and the violation was a proximate cause of the
harm for which relief is sought, including—
“(I) any case in which the manufacturer or seller
knowingly made any false entry in, or failed to make
appropriate entry in, any record required to be kept
under Federal or State law with respect to the qualified
product, or aided, abetted, or conspired with any person
in making any false or fictitious oral or written statement
with respect to any fact material to the lawfulness of the
sale or other disposition of a qualified product; 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 qualified product, knowing, or
having reasonable cause to believe, that the actual buyer
of the qualified product was prohibited from possessing
or receiving a firearm or ammunition under subsection
(g) or (n) of section 922 of title 18 . . . .” 15 U.S.C. § 7903
(5) (A) (iii) (2012).
Resolving whether CUTPA is a state statute
“applicable to the sale or marketing of [firearms]”; 15
U.S.C. § 7903(5) (A) (iii) (2012); begins with the plain
meaning of the word “applicable,” which Congress did
not define within the arms act. “In the absence of a
definition of terms in the statute itself, [w]e may presume
. . . that the legislature intended [a word] to have its
ordinary meaning in the English language, as gleaned
from the context of its use. . . . Under such circumstances, it is appropriate to look to the common
understanding of the term as expressed in a dictionary.”
(Internal quotation marks omitted.) Middlebury v.
Connecticut Siting Council, 326 Conn. 40, 49, 161 A.3d
537 (2017). Merriam Webster’s Collegiate Dictionary
defines “applicable” as “capable of or suitable for being

 117a
applied: appropriate.” Merriam-Webster’s Collegiate
Dictionary (11th Ed. 2003), p. 60; see id., p. 61 (defining
“appropriate” as “especially suitable or compatible”).
Considering this definition, I agree with the plaintiffs’
argument that CUTPA reasonably could be deemed
“applicable” to the “sale or marketing of [firearms]”; 15
U.S.C. § 7903 (5) (A) (iii) (2012); insofar as it is a broad
statute that is “capable of” being applied to that—and
nearly every other—business. The reasonableness of
this reading is bolstered by Congress’ use of the word
“including” to set off its list of example predicate
statutes, insofar as “the word ‘including’ may be used
either as a word of enlargement or of limitation.” Wood
v. Zoning Board of Appeals, 258 Conn. 691, 700 n.11, 784
A.2d 354 (2001); see also, e.g., State v. DeFrancesco, 235
Conn. 426, 435, 668A.2d 348 (1995) (“‘[t]here is some
ambiguity concerning whether the word “including” . . .
was intended as a word of limitation . . . or one of
enlargement’”); accord Samantar v. Yousuf, 560 U.S.
305, 317, 130 S.Ct. 2278, 176 L.Ed.2d 1047 (2010) (stating
that “use of the word ‘include’ can signal that the list that
follows is meant to be illustrative rather than
exhaustive,” but noting that “‘[a] word may be known by
the company it keeps’”); but see Mahoney v. Lensink,
213 Conn. 548, 569, 569 A.2d 518 (1990) (suggesting that
phrase “shall include” is limiting, but use of word
“include” or “including” omitting word “shall” is intended
to be broader, with “the listed rights . . . a vehicle for
enlargement rather than limitation,” given purpose of
statutory patients’ bill of rights).
The defendants’ reading of the predicate exception is,
however, equally reasonable, particularly given the more
technical definition of “applicable” in Black’s Law
Dictionary as it relates to laws or regulations. See
Black’s Law Dictionary (10th Ed. 2014) (defining

 118a
“applicable” in references to “a rule, regulation, law,
etc.,” as “affecting or relating to a particular person,
group, or situation; having direct relevance”). The
principle of noscitur a sociis, namely, that the “meaning
of a statutory word may be indicated, controlled or made
clear by the words with which it is associated in the
statute”; (internal quotation marks omitted) State v.
Agron, supra, 323 Conn. at 635–36, 148 A.3d 1052; allows
us to view the example predicates, which describe
statutes specifically applicable to the firearms trade, as
cabining the more expansive reading of the word
“applicable.” See also, e.g., Bilski v. Kappos, 561 U.S.
593, 604, 130 S.Ct. 3218, 177 L.Ed.2d 792 (2010).
Consistent with the two United States Courts of Appeal
that have considered the meaning of the predicate
exception; see Ileto v. Glock, Inc., supra, 565 F.3d at
1133–34; New York v. Beretta U.S.A. Corp., 524 F.3d 384,
401 (2d Cir. 2008), cert. denied, 556 U.S. 1104, 129 S.Ct.
1579, 173 L.Ed.2d 675 (2009); I conclude that there is
more than one reasonable reading of the predicate
exception, rendering it ambiguous. I turn, therefore, to
extratextual evidence, namely, the canons of statutory
construction and, if necessary, the legislative history, to
answer the question of whether CUTPA constitutes a
predicate statute for purposes of 15 U.S.C. § 7903 (5) (A)
(iii).
II
REVIEW OF FEDERAL CIRCUIT COURT
PRECEDENT
In determining whether CUTPA is a predicate
statute under the arms act, I do not write on a blank
slate. Two of the United States Circuit Courts of Appeal,
including the Second Circuit that we ordinarily find
especially persuasive in deciding questions of federal law;

 119a
see, e.g., CCT Communications, Inc. v. Zone Telecom,
Inc., supra, 327 Conn. at 140, 172 A.3d 1228; have
considered whether state statutes of general applicability
may be predicate statutes.
In New York v. Beretta U.S.A. Corp., supra, 524 F.3d
at 389–91, the city of New York claimed that the
defendants’, certain firearms manufacturers and
distributors, “market[ed] guns to legitimate buyers with
the knowledge that those guns [would] be diverted
through various mechanisms into illegal markets” and
sought injunctive relief requiring those defendants’” to
take assorted measures that would effectively inhibit the
flow of firearms into illegal markets.” The Second
Circuit considered whether a state criminal public
nuisance statute; see N.Y. Penal Law § 240.45 (McKinney
2008); 7 constituted a predicate statute that would allow
the city’s claim to avoid preemption under the arms act.
New York v. Beretta U.S.A. Corp., supra, at 399; see also
id. (“[i]t is not disputed that [the criminal nuisance
statute] is a statute of general applicability that has
never been applied to firearms suppliers for conduct like
that complained of by the [c]ity”). The city argued that
the predicate exception saved its action “because [the
criminal nuisance statute] is a statute ‘applicable to the
sale or marketing of [firearms].’ The [defendants’]
Section 240.45 of New York’s Penal Law (McKinney 2008) provided
in relevant part: “A person is guilty of criminal nuisance in the
second degree when:
“1. By conduct either unlawful in itself or unreasonable under all the
circumstances, he knowingly or recklessly creates or maintains a
condition which endangers the safety or health of a considerable
number of persons; or
“2. He knowingly conducts or maintains any premises, place or
resort where persons gather for purposes of engaging in unlawful
conduct . . . .”

7

 120a
disagree[d], arguing that the predicate exception was
intended to include statutes that specifically and
expressly regulate the firearms industry.” Id.
After engaging in a contextual analysis of the
predicate exception and, in particular, the meaning of the
term “applicable,” the Second Circuit concluded that the
predicate exception “does not encompass” the criminal
nuisance statute, but “does encompass statutes [1] that
expressly regulate firearms, or [2] that courts have
applied to the sale and marketing of firearms; and . . . [3]
that do not expressly regulate firearms but that clearly
can be said to implicate the purchase and sale of
firearms.” Id., at 404. In reaching that conclusion, the
court stated that it found “nothing in the [arms act] that
requires any express language regarding firearms to be
included in a statute in order for that statute to fall
within the predicate exception” and declined “to foreclose
the possibility that, under certain circumstances, state
courts may apply a statute of general applicability to the
type of conduct that the [c]ity complains of, in which case
such a statute might qualify as a predicate statute.” Id.,
at 399–400. Accordingly, the court concluded that “while
the mere absence in [the criminal nuisance statute] of
any express reference to firearms does not, in and of
itself, preclude that statute’s eligibility to serve as a
predicate statute under the [arms act, the criminal
nuisance statute] is a statute of general applicability that
does not encompass the conduct of firearms
manufacturers of which the [c]ity complains. It therefore
does not fall within the predicate exception to the claim
restricting provisions of the [arms act].” Id., at 400.
My review of the relevant statutory text and
legislative history reveal no support for the Second
Circuit’s expansive holding that the predicate exception

 121a
includes statutes “that courts have applied to the sale and
marketing of firearms” and “that do not expressly
regulate firearms but that clearly can be said to implicate
the purchase and sale of firearms.” Id., at 404. This
ultimate conclusion is simply inconsistent with the court’s
more detailed analysis of the relevant statutory text and
legislative history, which suggests a narrower reading of
that exception. Specifically, the court considered the
statements of purpose, as well as the list of example
predicate statutes set forth in 15 U.S.C. § 7903 (5) (A) (iii)
(I) and (II), which are “said to include statutes regulating
[record keeping] and those prohibiting participation in
direct illegal sales,” and stated that “construing the term
‘applicable to’ to mean statutes that clearly can be said to
regulate the firearms industry more accurately reflects
the intent of Congress.” Id., at 402. The court also
rejected the dictionary definition of “applicable” as
“lead[ing] to a far [too] broad reading of the predicate
exception” that “would allow the predicate exception to
swallow the statute . . . .” Id., at 403. Finally, the court
cited the legislative history of the arms act as “support
[for] the view that the predicate exception was meant to
apply only to statutes that actually regulate the firearms
industry, in light of the statements’ consistency amongst
each other and with the general language of the statute
itself.” Id., at 404.
Indeed, Judge Robert Katzmann authored a
dissenting opinion aptly criticizing the majority’s analysis
as inconsistent with the plain language of the statute,
particularly with respect to recognizing those statutes
that courts had previously applied to the sale and
manufacture of firearms, and further observed that the
majority had provided no guidance with respect to when
a statute of general applicability could, in fact, be deemed
applicable to firearms, rendering that aspect of the

 122a
majority opinion entirely unpersuasive. 8 See id., at 406.
Accordingly, I decline to follow the analysis of the Second
Circuit’s ultimately unpersuasive decision, particularly
given that any concerns regarding different outcomes in
federal court; see Turner v. Frowein, 253 Conn. 312, 341,
752 A.2d 955 (2000) (declining to follow Second Circuit
precedent would create “bizarre result” when federal
district court, located “only a few blocks away,” would be
bound under same facts); as a result of such a departure
would be minimized because that case did not specifically
involve a claim raised under a state unfair trade practices
law. 9
Judge Katzmann also observed that this approach creates a “Catch22,” insofar as “the apparently insurmountable obstacle for the
plaintiffs here is that the New York courts have not yet addressed
the question—as such, the majority feels free to conclude that [the
criminal nuisance statute] is not ‘applicable’ to the sale and
marketing of firearms. Unlike, say, a fruit, which is edible long
before someone has eaten it, or gasoline, which is flammable even
before someone has ignited it, the majority finds that a state law is
not applicable until a state court actually applies it.” New York v.
Beretta U.S.A. Corp., supra, 524 F.3d at 406–407. Judge Katzmann
criticized this as inconsistent with the plain meaning of the word
“applicable,” and observed that it invited forum shopping in order for
parties first to obtain a state court interpretation of the potentially
applicable state law. Id., at 407. Instead, Judge Katzmann would
follow what he deemed to be the “plain meaning” of the predicate
exception, concluding that [the] criminal nuisance statute could be
applied to firearms by its general terms, and he would have certified
to the New York Court of Appeals a question of state law, namely,
“whether the . . . criminal nuisance statute . . . is in fact ‘applicable to
the sale and marketing of firearms.’” (Citation omitted.) Id.
Although I disagree with Judge Katzmann’s ultimate conclusion with
respect to the plain meaning of the relevant statutory language, I
nevertheless share his other concerns with respect to the
interpretation of the predicate exception.
9
I also find unpersuasive the decision of the Indiana Court of
Appeals in Smith & Wesson Corp. v. Gary, 875 N.E.2d 422, 431 (Ind.
8

 123a
Although it too is not directly on point, my review of
the predicate exception’s text and legislative history
indicates that the analysis of the United States Court of
Appeals for the Ninth Circuit in Ileto v. Glock, Inc.,
supra, 565 F.3d 1126, is more instructive. 10 In Ileto, the
Ninth Circuit considered whether the predicate
exception saved the plaintiff’s claims of “knowing
violations” of negligence, nuisance, and public nuisance
under “California’s general tort law [that] is codified in
its civil code.” Id., at 1132–33. Observing “that the term
‘applicable’ has a spectrum of meanings, including the
two poles identified by the parties,” the Ninth Circuit
considered the context of Congress’ use of the word
“applicable,” as well as “the broader context of the
statute as a whole.” (Internal quotation marks omitted.)
Id., at 1134. The court stated that the “illustrative
predicate statutes pertain specifically to sales and
manufacturing activities, and most also target the
firearms industry specifically. Those examples suggest
that [the] [p]laintiffs’ proposed all-encompassing
meaning of the term ‘applicable’ is incorrect, because
App. 2007), transfer denied, 915 N.E.2d 978 (Ind. 2009), to the extent
that it concluded that the plain language of the predicate exception
did not bar a city’s claim of public nuisance against a gun
manufacturer insofar as the nuisance statute is “capable of being
applied” to the sale and marketing of firearms. I note, however, that
the court emphasized that the allegations in the complaint satisfied
the manufacturers’ more restrictive reading of the predicate
exception, because they claimed numerous violations of “statute[s]
directly applicable to the sale or marketing of a firearm . . . .” Id., at
432.
10
I note that the plaintiffs in the present case have candidly
acknowledged that the approach adopted by the Ninth Circuit in
Ileto v. Glock, Inc., supra, 565 F.3d at 1126, is “more restrictive”
than the Second Circuit’s approach in New York v. Beretta U.S.A.
Corp., supra, 524 F.3d at 404.

 124a
each of the examples has—at the very least—a direct
connection with sales or manufacturing. Indeed, if any
statute that ‘could be applied’ to the sales and
manufacturing of firearms qualified as a predicate
statute, there would be no need to list examples at all.
Similarly, the examples suggest that [the] [d]efendants’
asserted narrow meaning is incorrect, because some of
the examples do not pertain exclusively to the firearms
industry.” (Emphasis in original.) Id.
Determining that the “text of the statute alone is
inconclusive as to Congress’ intent,” the court then
considered “the additional indicators of congressional
intent.” Id., at 1135. In particular, the court observed
that the express purpose of the arms act is to “‘prohibit
causes of action against manufacturers, distributors,
dealers, and importers of firearms or ammunition
products, and their trade associations, for the harm
solely caused by the criminal or unlawful misuse of
firearm products or ammunition products by others when
the product functioned as designed and intended.’” Id.,
quoting 15 U.S.C. § 7901 (b) (1) (2006). The court
determined that, in “view of [the] congressional findings
and that statement of purpose, Congress clearly intended
to preempt common-law claims, such as general tort
theories of liability. [The] [p]laintiffs’ claims—‘classic
negligence and nuisance’—[are] general tort theories of
liability that traditionally have been embodied in the
common law.” (Citation omitted; footnote omitted.) Ileto
v. Glock, Inc., supra, 565 F.3d at 1135. The court
emphasized that the California legislature did not intend
to supplant the common law by enacting its civil code, but
rather “to announce and formulate existing common law
principles and definitions for purposes of orderly and
concise presentation and with a distinct view toward
continuing judicial evolution. . . . In other words,

 125a
although California has codified its common law, the
evolution of those statutes is nevertheless subject to the
same judicial evolution as ordinary common-law claims in
jurisdictions that have not codified common law. That
judicial evolution was precisely the target of the [arms
act].” (Citation omitted; internal quotation marks
omitted.) Id., at 1136. The Ninth Circuit deemed it
“more likely that Congress had in mind only these types
of statutes—statutes that regulate manufacturing,
importing, selling, marketing, and using firearms or that
regulate the firearms industry—rather than general tort
theories that happened to have been codified by a given
jurisdiction.” Id.
The Ninth Circuit then examined the “extensive”
legislative history, and made “two general observations . .
. . First, all of the congressional speakers’ statements
concerning the scope of the [arms act] reflected the
understanding that manufacturers and sellers of firearms
would be liable only for statutory violations concerning
firearm regulations or sales and marketing regulations.”
Id., at 1136–37. Second, the court observed that the
“very case” before it was exactly “the type of case they
meant the [arms act] to preempt,” along with other
“novel” cases.
(Emphasis omitted.)
Id., at 1137.
Ultimately, the court held that “Congress intended to
preempt general tort law claims . . . even though
California has codified those claims in its civil code.”11
The decision of the Ninth Circuit in Ileto was not unanimous. In
dissent, Judge Marsha S. Berzon concluded that the plaintiffs’ claims
alleging violations of the California Civil Code were, in fact, saved by
the predicate exception. See Ileto v. Glock, Inc., supra, 565 F.3d at
1146–47. Judge Berzon first observed that “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
11

 126a
Id., at 1138. Unlike the Second Circuit, however, the
Ninth Circuit expressly demurred to state “any view on
the scope of the predicate exception with respect to any
other statute.” Id., at 1138 n.9; see also District of
Columbia v. Beretta U.S.A. Corp., 940 A.2d 163, 170–72
(D.C. 2008) (concluding that District of Columbia’s
Assault Weapons Manufacturing Strict Liability Act,
D.C. Code § 7-2551.01 et seq. [2001], is not predicate
statute because it is pure strict liability, and does not
provide “a prohibition against, or standards of, conduct
that are being violated,” with plaintiffs’ claims preempted
because they did not allege that “defendants’ knowingly
violated any proscriptions or requirements of local or
subject to dismissal under the [arms act]. I therefore agree with the
majority that a limiting principle must be found, and that rather than
trying to locate it in the word ‘applicable’ itself, we must look to the
predicate exception’s surrounding words.” (Emphasis in original.)
Id., at 1155. Judge Berzon determined that “the key to interpreting
the predicate exception is [Congress’] use of the word ‘knowingly’”;
id.; insofar as “[a]pplying the [arms act’s] predicate exception as
written—that is, as applying to all statutes capable of being applied
to the sale or marketing of firearms, but imposing an actual
knowledge requirement—would prohibit a swath of lawsuits against
firearms manufacturers and sellers, including those brought by
municipalities for violations of no-fault or absolute liability statutes
or those brought by individuals alleging vicarious liability under
state tort law for the conduct of third parties of which the gun
manufacturers or sellers were not aware.” Id., at 1163. Judge
Berzon concluded that the various allegations in the plaintiffs’
complaint supported their claim that the defendants’ “knowingly
committed a range of acts in violation of California negligence and
nuisance law” by engaging in sales and marketing practices that
created “distribution channels that they know regularly provide
guns to criminals and underage end users [and, despite information
from government crime trace reports,] knowingly supply a range of
disreputable distributors, dealers, gun shops, pawnshops, gun shows,
and telemarketers in the [s]tate of California . . . .” (Emphasis in
original; internal quotation marks omitted.) Id., at 1156.

 127a
federal law governing the sale or possession of
firearms”), cert. denied sub nom. Lawson v. Beretta
U.S.A. Corp., 556 U.S. 1104, 129 S.Ct. 1579, 173 L.Ed.2d
675 (2009).
With this case law in mind, I now turn to the canons
of statutory interpretation and legislative history to
determine whether the predicate exception encompasses
unfair trade practices statutes that, like CUTPA, are not
specific to the firearms industry.
III
CANONS OF CONSTRUCTION
With respect to the canons of statutory construction,
I first observe that the predicate exception is exactly
that—an exception to the arms act. It is well settled that,
“when a statute sets forth exceptions to a general rule,
we generally construe the exceptions narrowly in order
to preserve the primary operation of the [provision].”
(Internal quotation marks omitted.) Capitol Records,
LLC v. Vimeo, LLC, 826 F.3d 78, 90–91 (2d Cir. 2016),
cert. denied, --- U.S. ---, 137 S.Ct. 1374, 197 L.Ed.2d 554
(2017). This “proposition . . . is supported by commonsense logic. When a statute sets forth a general
principle, coupled with an exception to it, it is logical to
assume, in the face of ambiguity in the exception, that the
legislature did not intend the exception to be so broad as
to leave nothing of the general principle.” Id., at 91; see
also Commissioner of Internal Revenue v. Clark, 489
U.S. 726, 739, 109 S.Ct. 1455, 103 L.Ed.2d 753 (1989)
(“[g]iven that Congress has enacted a general rule that
treats boot as capital gain, we should not eviscerate that
legislative judgment through an expansive reading of a
somewhat ambiguous exception”); A. H. Phillips, Inc. v.
Walling, 324 U.S. 490, 493, 65 S.Ct. 807, 89 L.Ed. 1095
(1945) (“[t]o extend an exemption to other than those

 128a
plainly and unmistakably within its terms and spirit is to
abuse the interpretative process and to frustrate the
announced will of the people”). In the absence of clear
direction from Congress to construe the predicate
exception differently, I disagree with the majority’s
suggestion that we should read the arms act narrowly
and its predicate exception more broadly. 12 See Reves v.
The majority states that Congress intended that the arms act itself
be narrowly construed, insofar as its proponents described it as a
“‘narrow’” exemption intended only to curb “‘junk or abusive’”
lawsuits seeking to charge the firearms industry liable for the acts of
third parties who are beyond their control. See, e.g., 151 Cong. Rec.
18,084, 18,911, 19,137 (2005), remarks of Senator Larry Edwin Craig.
I disagree with the majority that this generalized legislative history
indicates any desire by Congress to depart from the usual rules of
statutory construction. Indeed, in arguing in support of the arms
act, Representative Cliff Stearns, its sponsor in the House of
Representatives, suggested that it would “eliminate predatory
lawsuits that would otherwise cripple an entire industry,” and
described numerous pending cases against manufacturers and
dealers arising from criminal shootings, based on theories such as
public nuisance and strict liability statutes; he emphasized that he
“made these remarks to ensure that anyone trying to evade the
letter and spirit of this legislation will have as little ‘wiggle room’ as
possible.” Id., 23,279–80.
I also note that frivolity remains in the eye of the beholder, and that
the proponents of the arms act appear from their remarks, discussed
in greater detail in part IV of this dissenting opinion, to employ that
term in a manner different than its well established legal meaning.
See, e.g., Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210,
254–55, 828 A.2d 64 (2003) (“an action is frivolous . . . if the client
desires to have the action taken primarily for the purpose of
harassing or maliciously injuring a person or if the lawyer is unable
either to make a good faith argument on the merits of the action
taken or to support the action taken by a good faith argument for an
extension, modification or reversal of existing law” [emphasis
omitted; internal quotation marks omitted]); cf. Mareno v. Rowe, 910
F.2d 1043, 1047 (2d Cir. 1990) (discussing rule 11 of Federal Rules of
Civil Procedure), cert. denied,
12

 129a
Ernst & Young, 507 U.S. 170, 183–84, 113 S.Ct. 1163, 122
L.Ed.2d 525 (1993) (“‘[L]iberal construction’” clause in
Racketeer Influenced and Corrupt Organizations Act
[RICO], 18 U.S.C. § 1961 et seq. [1988], which “obviously
seeks to ensure that Congress’ intent is not frustrated by
an overly narrow reading of the statute . . . is not an
invitation to apply RICO to new purposes that Congress
never intended. Nor does the clause help us to determine
what purposes Congress had in mind. Those must be
gleaned from the statute through the normal means of
interpretation. The clause only serves as an aid for
resolving an ambiguity; it is not to be used to beget one.”
[Internal quotation marks omitted.]).
Beyond the narrow construction that we should afford
the exceptions to the arms act, the related doctrines of
noscitur a sociis and avoiding legislative superfluity also
inform the meaning of the phrase “State or Federal
statute applicable to the sale or marketing of [firearms]”;
15 U.S.C. § 7903 (5) (A) (iii) (2012); and suggest that the
examples of federal laws provided therein indicate the
type of statutory violations that would sustain invocation
of the predicate exception. Under the canon of noscitur a
sociis, “an ambiguous term may be given more precise
content by the neighboring words with which it is
associated.” 13 (Internal quotation marks omitted.) Bilski
v. Kappos, supra, 561 U.S. at 604, 130 S.Ct. 3218; see also
Yates v. United States, --- U.S. ---, 135 S.Ct. 1074, 1085,
L.Ed.2d 673 (1991). Accordingly, I emphasize that I do not view the
plaintiffs’ claims in the present case as frivolous in any way.
13
I note that a related canon often applied is “ejusdem generis, or
the principle that when a general term follows a specific one, the
general term should be understood as a reference to subjects akin to
the one with specific enumeration.” (Internal quotation marks
omitted.) Ali v. Federal Bureau of Prisons, 552 U.S. 214, 223, 128
S.Ct. 831, 169 L.Ed.2d 680 (2008).

 130a
191 L.Ed.2d 64 (2015) (“we rely on the principle of
noscitur a sociis—a word is known by the company it
keeps—to avoid ascribing to one word a meaning so
broad that it is inconsistent with its accompanying words,
thus giving unintended breadth to the [a]cts of Congress”
[internal quotation marks omitted]). “By using this
interpretive aid, the meaning of a statutory word may be
indicated, controlled or made clear by the words with
which it is associated in the statute.” (Internal quotation
marks omitted.) State v. Agron, supra, 323 Conn. at 636,
148 A.3d 1052. “As a result, broader terms, when used
together with more narrow terms, may have a more
restricted meaning than if they stand alone.” Dattco,
Inc. v. Commissioner of Transportation, 324 Conn. 39,
48, 151 A.3d 823 (2016). This is particularly so, given this
canon’s relationship to the doctrine that “the [c]ourt will
avoid a reading which renders some words altogether
redundant.” Gustafson v. Alloyd Co., Inc., 513 U.S. 561,
574, 115 S.Ct. 1061, 131 L.Ed.2d 1 (1995); accord Lopa v.
Brinker International, Inc., 296 Conn. 426, 433, 994 A.2d
1265 (2010) (“[b]ecause [e]very word and phrase [of a
statute] is presumed to have meaning [a statute] must be
construed, if possible, such that no clause, sentence or
word shall be superfluous, void or insignificant” [internal
quotation marks omitted]).
The very specific examples of firearms laws that
Congress provides in the predicate exception strongly
suggest that it intended only those statutes that are
specific to the firearms trade to be considered “applicable
to the sale or marketing of the product . . . .” 15 U.S.C. §
7903 (5) (A) (iii) (2012). The first example is “any case in
which the manufacturer or seller knowingly made any
false entry in, or failed to make appropriate entry in, any
record required to be kept under Federal or State law
with respect to the qualified product, or aided, abetted,

 131a
or conspired with any person in making any false or
fictitious oral or written statement with respect to any
fact material to the lawfulness of the sale or other
disposition of a qualified product . . . .” 15 U.S.C. § 7903
(5) (A) (iii) (I) (2012). The second is “any case in which
the manufacturer or seller aided, abetted, or conspired
with any other person to sell or otherwise dispose of a
qualified product, knowing, or having reasonable cause to
believe, that the actual buyer of the qualified product was
prohibited from possessing or receiving a firearm or
ammunition under subsection (g) or (n) of section 922 of
title 18 . . . .” 15 U.S.C. § 7903(5) (A) (iii) (II) (2012). Had
Congress intended the predicate exception to broadly
encompass any statute capable of application to the
manufacture or sale of anything, the inclusion of those
firearms-specific examples would be superfluous. 14 See
The majority relies on portions of the legislative history as
indicating that “the record keeping and unlawful buyer illustrations
were included in the final version of [the arms act] 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 [the arms act] 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
[the arms act]. 151 Cong. Rec. 2561 (2005), remarks of Senator
Larry Edwin Craig; see also id., 18,096, remarks of Senator Craig
(indicating that bill is same for all intents and purposes as version
introduced during 108th Congress, with addition of clarifying
examples).” The majority further notes that 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.” I
respectfully disagree with this reading of the legislative history with
respect to the import of the illustrative statutes in the predicate
exception. Although I agree that the vitality of the beltway sniper

14

 132a
Yates v. United States, supra, 135 S.Ct. at 1087 (“Had
Congress intended ‘tangible object’ in [18 U.S.C.] § 1519
to be interpreted so generically as to capture physical
objects as dissimilar as documents and fish, Congress
would have had no reason to refer specifically to ‘record’
or ‘document.’ The Government’s unbounded reading of
‘tangible object’ would render those words misleading
surplusage.”); Gustafson v. Alloyd Co., supra, 513 U.S. at
574–75, 115 S.Ct. 1061 (interpreting Securities Act of
1933 and stating that “[i]f ‘communication’ included every
written communication, it would render ‘notice, circular,
advertisement, [and] letter’ redundant, since each of
these are forms of written communication as well”);
Dattco, Inc. v. Commissioner of Transportation, supra,
324 Conn. at 48–49, 151 A.3d 823 (“The legislature’s
grouping [in General Statutes (Rev. to 2015) § 13b-36 (a)]
of the term ‘facilities’ with other nouns that all denote
tangible objects favors a conclusion that the term
‘facilities’ also refers to tangible objects other than land,
buildings, and equipment that might be used in a
transportation system. Moreover, interpreting ‘facilities’
to mean only tangible items does not render it
superfluous or redundant with respect to the terms
‘land,’ ‘buildings,’ or ‘equipment,’ as the commissioner
suggests.
The term ‘facilities’ embraces numerous
tangible items—other than land, buildings, or
lawsuit was a powerful political consideration during the enactment
of the arms act, I view that action’s basis in concrete record keeping
and unlawful buyer violations simply as an exemplar of what
Congress did not intend the arms act to preclude. With those
exemplars included in the final version of the predicate exception, I
am not at liberty simply to ignore their import in the construction of
the statute as a whole. See, e.g., United States v. Dauray, supra, 215
F.3d at 264 (“our role as a court is to apply the provision as written,
not as we would write it” [internal quotation marks omitted]).

 133a
equipment—including bridges . . . docks . . . side railroad
tracks that are part of a rail system . . . dams and
reservoirs . . . and even horses.” [Citations omitted.]).
Although a reading of the predicate exception that is
informed by the canons of construction strongly favors
the defendants’, the plaintiffs’ proffered reading of the
statute remains reasonable, insofar as “we do not
woodenly apply limiting principles every time Congress
includes a specific example along with a general phrase.”
Ali v. Federal Bureau of Prisons, 552 U.S. 214, 227, 128
S.Ct. 831, 169 L.Ed.2d 680 (2008). Accordingly, I
continue to consider the legislative history of the arms
act in determining whether a predicate statute must
specifically relate to the firearms industry.
IV
LEGISLATIVE HISTORY
The legislative history also supports a narrow reading
of the predicate exception as limited only to those
statutes that govern the sale and marketing of firearms
specifically. I agree with the majority’s description of the
legislative history of the arms act as “extensive” and
“present[ing] something of a mixed bag.”15 I disagree,
however, with the majority’s conclusion that the
legislative history demonstrates that “Congress did not
As a general matter, I also agree with the observation of Judge
Marsha S. Berzon, in her dissenting opinion in Ileto v. Glock, Inc.,
supra, 565 F.3d at 1126, that much of the legislative history of the
arms act needs to be taken with a grain of salt. Judge Berzon aptly
observed that “individual legislators at times suggested divergent
views of what sorts of lawsuits the [arms act] would affect if it were
passed into law. Some of those views appear perhaps implausibly
narrow or implausibly broad, likely because the bill excited strong
emotions from both its supporters and its opponents. As courts have
long cautioned, however, the statements of single lawmakers do not
establish congressional intent.” (Footnote omitted.) Id., at 1161–62.

15

 134a
intend to limit the scope of the predicate exception to
violations of firearms specific laws or to confer immunity
from all claims alleging that firearms sellers violated
unfair trade practice laws.” Consistent with the purpose
of the arms act as set forth in 15 U.S.C. § 7901; see
footnote 1 of this dissenting opinion; much of the
legislative history consists of broad statements by
supporters of the arms act about saving the American
firearms industry from “predatory,” “abusive,” and
“frivolous” lawsuits, sanctioned by “sympathetic activist
judges,” seeking “damages resulting from the criminal or
unlawful misuse of a firearm or ammunition by a third
party.” 16 151 Cong. Rec. 18,057–58 (2005), remarks of
In contrast, opponents of the arms act roundly criticized it as a gift
to the gun lobby that would deprive injured persons of the
opportunity to hold the firearms industry responsible for turning a
blind eye to criminal activity in the name of profits. See, e.g., 151
Cong. Rec. 18,065 (2005), remarks of Senator Dianne Feinstein
(“[The arms act] has nothing to do with protecting lawful commerce;
rather, it protects one segment of industry against the lawful
interests of our [s]tates in remedying and deterring negligent
conduct. . . . Its proponents argue that lawsuits need to be stopped
in order to defend their view of the [s]econd [a]mendment. But that
is pretense. This bill is a simple giveaway to one industry—the gun
lobby. It is a special interest windfall.”); id., 18,902, remarks of
Senator Edward Moore Kennedy (“Instead of addressing the real
issues that can make our country and our communities safer, we are
considering a bill that will close the courthouse door to victims of gun
crimes and give a free pass to the handful of gun dealers and gun
manufacturers who sell firearms to terrorists and criminals. We are
doing it to appease the special interests of the [National Rifle
Association].”); id., 23,021, remarks of Representative James P.
McGovern (“While the proponents of this bill claim that the intent of
this legislation is to protect jobs at mom-and-pop gun stores from
reckless lawsuits, the truth is that the bill is all about protecting
profits for the gun industry. Ensuring its yearly profits, not
protecting jobs nor safeguarding gun sales, is atop the priorities of
the gun industry.”); id., 19,217, remarks of Senator Charles Ellis

16

 135a
Senator Larry Edwin Craig and Senator Thomas Allen
Coburn; see, e.g., id., 2315–16, remarks of
Representative Clifford Bundy Stearns (introducing
House bill); id., 18,057, remarks of Senator Craig
(“[t]hese predatory lawsuits are aimed at bankrupting
the firearms industry” and “all seek the same goal of
forcing law-abiding businesses selling a legal product to
pay for damages from the criminal misuse of that
product,” which would threaten “a domestic industry that
is critical to our national defense” and jeopardize
“hundreds of thousands of good paying jobs”); id., 18,058,
remarks of Senator Coburn (“[A]nti-gun activists have
found another way to constrict the right to bear arms and
attack the Bill of Rights and attack the [United States]
[c]onstitution, and that is through frivolous litigation. . . .
[These] novel lawsuits . . . are not intended to create a
solution. They are intended to drive the gun industry out
of business by holding manufacturers and dealers liable
for the intentional and criminal act[s] of third parties
over whom they have absolutely no control.”); see also
id., 18,070, remarks of Senator William H. Frist; id.,
18,072–73, remarks of Senator Lindsey Graham; id.,
18,073, remarks of Senator Orrin Grant Hatch; id.,
18,914, remarks of Senator Kathryn Ann Bailey
Hutchison; id., 18,924, remarks of Senator Jefferson
Beauregard Sessions III.
Turning beyond the more sweeping remarks, to the
extent that there is legislative history illuminating the
meaning of the predicate exception, it “reflect[s] the
Schumer (“[I]t is shocking that we would spend our time giving
unwarranted and unprecedented immunity to an industry whose
products, when allowed into the hands of the wrong people, do
incredible harm to innocent Americans. We even put off working on
a defense bill to do this favor to the gun lobby.”).

 136a
understanding that manufacturers and sellers of firearms
would be liable only for statutory violations concerning
firearm regulations or sales and marketing regulations.”
Ileto v. Glock, Inc., supra, 565 F.3d at 1137. Thus, the
legislative debate, much of which was intended to provide
assurances that the arms act would not preempt claims
against the dealers who violated numerous firearms sale
laws in selling the Bushmaster rifle used by the beltway
snipers; see, e.g., H.R. Rep. No. 109-124, p. 92H.R. Rep.
No. 109-124, p. 92 (2005), remarks of Representative
Melvin L. Watt; supports an interpretation of predicate
statutes as those specifically regulating the sale or
marketing of firearms, such as those governing the
tracking of inventory by firearms dealers. 17 For example,
I disagree with the majority’s circular reliance on statements of
legislators indicating that the arms act protects “‘law-abiding’” gun
dealers and manufacturers, as suggesting that encompasses those
who do not engage in violations of unfair trade practices acts. See,
e.g., 151 Cong. Rec. 18,057 (2005), remarks of Senator Craig
(observing that actions against firearms industry “all seek the same
goal of forcing law-abiding businesses selling a legal product to pay
for damages from the criminal misuse of that product”); id., 19,137,
remarks of Senator Craig (“[w]hat we have crafted is a very narrow
exemption from predatory lawsuits seeking to hold legitimate, lawabiding people responsible for the harm done by the misdeeds of
people over whom they have no control”); id., 23,024, remarks of
Representative Charles Foster Bass (arguing that arms act
“protects licensed and law abiding firearms and ammunitions
manufacturers and sellers from lawsuits that seek to hold them
responsible for the crimes that third party criminals commit”).
These statements, which are ambiguous and no more illuminating
than the purpose of eliminating “frivolous” lawsuits, prove too much,
as the arms act by its very terms shields gun manufacturers and
dealers from the consequences of violating numerous laws, both
common and statutory in nature, such as California’s general tort
statutes. See Ileto v. Glock, Inc., supra, 565 F.3d at 1136–38. Put
differently, these remarks do nothing to answer the core question in
the present appeal, which requires this court to consider whether

17

 137a
Senator Craig explained that the “bill does not shut the
courthouse door,” insofar as “plaintiffs will have the
opportunity to argue that their case falls under the
exception, such as violations of [f]ederal and [s]tate law . .
. that you have knowingly sold a firearm to a person who
cannot legally have it or who you have reason to believe
could use it for a purpose other than intended. That all
comes under the current definition of [f]ederal law.” 151
Cong. Rec. 18,057–58 (2005). In contending that the
arms act does not reduce “personal accountability” for
firearms manufacturers, given its exceptions, Senator
Coburn emphasized that “gun manufacturers and sellers
are already policed enough, too much, through hundreds
of pages of statutes, hundreds of pages of regulations. To
name a few sources of regulations of guns and
ammunition: the Internal Revenue Code, including the
National Firearms Act postal regulations restricting
shipping of handguns; [f]ederal explosive law; regulations
for gunpowder and ammunition manufacture; the Arms
Export Control Act; the Commerce Department export
regulations; the Department of Transportation
regulations on ammunition explosives and hazardous
material transport. In addition to keeping explicit
records that can be inspected by . . . the Bureau of
Alcohol, Tobacco, Firearms, and Explosives, licensed
dealers have to conduct a [f]ederal criminal background
check . . . All retail gun buyers are screened to the best
of the [g]overnment’s ability.” Id., 18,059–60; see also id.,
19,119, remarks of Senator Sessions (emphasizing that
arms act “allows lawsuits for violation of contract, for
negligence, in not following the rules and regulations and
for violating any law or regulation that is part of the
such laws are indeed within the contemplation of the predicate
exception.

 138a
complex rules that control sellers and manufacturers of
firearms”). Similarly, when introducing the final Senate
bill in the House, Representative Phil Gingrey explained
that the predicate 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., 23,020.
Moreover, the majority does not cite, and my
independent research has not revealed, any legislative
history indicating that state unfair trade practice statutes
were within the contemplation of Congress in enacting
the predicate exception. Other statements indicate that
such statutes were not contemplated as predicates, and
that supporters of the arms act specifically rejected the
viability of claims arising from the advertising of
firearms. For example, arguing in support of the arms
act, Senator Hatch criticized pending actions against gun
manufacturers, observing that these “lawsuits, citing
deceptive marketing or some other pretext, continue to be
filed in a number of [s]tates, and they continue to be
unsound. These lawsuits claim that sellers give the false
impression that gun ownership enhances personal safety
or that sellers should know that certain guns will be used
illegally. That is pure bunk. Let’s look at the truth. The
fact is that none of these lawsuits are aimed at the actual
wrongdoer who kills or injures another with a gun—
none. Instead, the lawsuits are focused on legitimate,
law-abiding businesses.” 18 (Emphasis added.) 151 Cong.
I recognize that the statements of opponents may be of limited
value in discerning legislative intent. See, e.g., National Woodwork
Manufacturers Assn. v. National Labor Relations Board, 386 U.S.
612, 639–40, 87 S.Ct. 1250, 18 L.Ed.2d 357 (1967) (“[W]e have often

18

 139a
Rec. 18,073; see also id. (noting that arms act “provides
carefully tailored protections for legitimate lawsuits, such
as those where there are knowing violations of gun sale
laws”).
Finally, congressional concerns about vague
standards leading to liability also support a reading of
the predicate exception that is limited to firearms
industry-specific statutes, rather than statutes of general
applicability such as CUTPA. For example, in arguing in
the
House
Judiciary
Committee—seemingly
inexplicably—against an amendment that would clarify
that the arms act allows actions against gun dealers who
knowingly sell firearms to a person who is on the violent
gang and terrorist watch list maintained by the
Department of Justice, Representative Christopher B.
Cannon argued that “the vast number of cosponsors of
this bill would agree that the burden here should be on
the [g]overnment to identify people and not create a
vague standard that could be used again to destroy gun
manufacturers with lawsuits that don’t have clarity, but
cost a great deal of money.” H.R. Rep. No. 109-124H.R.
cautioned against the danger, when interpreting a statute, of
reliance upon the views of its legislative opponents. In their zeal to
defeat a bill, they understandably tend to overstate its reach.”
[Internal quotation marks omitted.]). I find it telling, however, that
Senator Edward Kennedy, in opposing the arms act, expressly
recognized that it would protect firearms manufacturers who engage
in just the kind of advertising that the plaintiffs in the present case
claim is immoral in violation of CUTPA. Senator Kennedy stated
that the “bill will even protect manufacturers that promote militarystyle weapons for use in battle in urban scenarios against any foe at
any range. It protects manufacturers who brag about their weapons
of war and spread them to our streets.” 151 Cong. Rec. 19,121–22;
see also id. (“Look at this advertisement from Vulcan: ‘Vulcan
Armament, the weapons of the special forces. From Afghanistan to
Iraq, the guns of the special forces are now on sale in America.”).

 140a
Rep. No. 109-124, supra, p. 126. Likewise, arguing in
support of the arms act, Senator John Thune emphasized
that the exceptions, including for violating the law in the
production or sale of a firearm, “are not arbitrary
standards . . . .” 151 Cong. Rec. 19,119 (2005).
Similarly, in opposing a bill amendment that would
provide an exception to the arms act for “gross
negligence” or “reckless conduct,” Senator John Cornyn
argued that the breadth of those terms “would actually
gut the very underlying purpose of this legislation”
because the pleading of such claims would broaden the
scope of the discovery involved, and allow for greater
harassment of the manufacturers via the litigation
process.
Id., 18,918.
Senator Jon Llewellyn Kyl
described the amendment as “a poison pill for the entire
bill because, in effect . . . if you allege gross negligence or
recklessness, then the exemption the bill provides
evaporates. So you are a lawyer. All you do is allege
gross negligence or recklessness and, bingo, you are back
in court again. So it totally undercuts the purpose of this
legislation.” 19 Id., 18,919; see also id., 18,921, remarks of
Opponents of the proposed amendment to provide an exception to
the arms act for “gross negligence” or “reckless conduct” also
described it as unnecessary because they viewed such acts as likely
to violate an existing federal or state statute. See 151 Cong. Rec.
18,919 (2005), remarks of Senator Kyl (“[Firearm manufacture and
sale] is a highly regulated industry by law, by [f]ederal law and
[s]tate law and even some local laws. And most 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
manufacturer for conduct which is in violation of law.”); id., 18,922,
remarks of Senator Hatch (“[v]irtually any act that would meet the
definition of gross negligence referenced in this amendment would
already be a violation of [f]ederal, [s]tate or local law, and therefore
would not receive the protection of this law anyway”); id., 19,118,
19

 141a
Senator Craig (arguing that gross negligence exception
would render arms act “relatively meaningless as to
where we are in relation to the kind of junk or dilatory
lawsuits that are currently being filed against gun
manufacturers and gun dealers who not only produce a
legal product to the market but sell it in the legal
context”). Senator Graham similarly emphasized how
statutes affect a manufacturer’s duty of care, stating that
the arms act “doesn’t let a seller or a distributor off the
hook for violating a statute or making a sale illegally
because it says, if you violate the law that exists, then you
have broken a duty. Duty can be established by
relationships. It can [also] be established by a statute.
So this bill does not allow someone to sell a gun without
following the procedures that we have set out to sell a
gun. It doesn’t allow someone to make a gun that is
unsafe. You are on the hook, and you can be held
accountable based on a simple negligence theory or a
negligence per se theory if you violate a specific statute
during the sale of a gun or manufacturing of a gun. But
what this bill prevents, and I think rightfully so, is
establishing a duty along this line: That you have a
responsibility, even if you do a lawful transaction or make
a safe gun, for an event that you can’t control, which is
the intentional misuse of a weapon in a criminal fashion
by another person. That is the heart of this bill. It
doesn’t relieve you of duties that the law imposes upon
you to safely manufacture and to carefully sell. But we
are not going to extend it to a concept where you are
responsible, after you have done everything right, for
remarks of Senator Craig (discussing rejection of gross negligence
exception and arguing that arms act “does not take away the
standards of law and the specifications within the [f]ederal law today
as it relates to the responsible and legal operation and performance
of a gun manufacturer or a licensed [f]ederal firearms dealer”).

 142a
what somebody else may do who bought your product
and they did it wrong and it is their fault, not yours. So it
does not matter whether you use a gross negligence
standard, a simple negligence standard, you have blown
by the concept of the bill in my opinion. The debate
should be, is there a duty owed in this country for people
who follow the law, manufacture safely, sell within the
confines of the laws we have written at the [s]tate and
[f]ederal level to the public at large if an injury results
from the criminal act of another? If that ever happens,
this country has made a major change in the way we
relate to each other and a major change in the law.” Id.,
18,920. Accordingly, I conclude that the legislative
history demonstrates that Congress contemplated that
only those statutes providing clear standards with
respect to the sale and marketing of firearms would
serve as predicate statutes.
V
CONCLUSION
On the basis of my review of the text, case law, canons
of construction, and legislative history, I conclude that
predicate statutes under the predicate exception to the
arms act, 15 U.S.C. § 7903 (5) (A) (iii), are limited to those
specific to the sale and manufacture of firearms. 20
My research indicates that the limited academic commentary on
this issue also supports this interpretation of the predicate exception.
See K. Armstrong, “Nigh-Impenetrable: Firearm Manufacturer
Liability under the Protection of Lawful Commerce in Arms Act in a
Post-Heller World,” 28 Geo. Mason U. C.R. L.J. 173, 195 (2018)
(“[s]tatutes qualifying for the predicate exception must not be of
general applicability and cannot be codified general tort claims”); R.
Sorensen, “The Ninth Circuit Forecloses a Bullet Sized Hole in the
PLCAA in Ileto v. Glock, 565 F.3d 1126 (9th Cir. 2009),” 35 S. Ill. U.
L.J. 573, 595 (2011) (“[F]uture courts should only find statutes
expressly regulating the firearm industry to be ‘applicable to the sale
20

 143a
Compare Phillips v. Lucky Gunner, LLC, 84 F. Supp.3d
1216, 1219–20, 1224 (D. Colo. 2015) (concluding in case
arising from movie theater mass shooting that plaintiffs
had not pleaded facts against ammunition sellers
indicating knowledge of shooter’s conduct and mental
condition before shootings, and had not claimed that
firearms sellers engaged in “noncompliance with the
regulatory requirements applicable to [over the counter]
sales,” or that “the . . . defendants’ had any knowledge of
the sales made by the others or by the local firearms
or marketing of firearms.’ It is through this narrow definition that
the [arms act’s] intended goal is realized.”); see also J. Sonner, “A
Crack in the Floodgates: New York’s Fourth Department, the
PLCAA, and the Future of Gun Litigation After Williams v.
Beemiller,” 61 Buff. L. Rev. 969, 984 (2013) (“The elusive definition
remains—a law applicable to gun sales or marketing whose violation
proximately causes harm for which relief is sought—without any
clarification of ‘applicable.’ The Second Circuit hinted at a [less
strict] approach, but no clear standard has emerged to determine
whether a law or regulation indirectly concerning the gun industry
may serve as a predicate statute.” [Emphasis in original; footnote
omitted.]); S. Wagman, “No One Ever Died from Copyright
Infringement: The Inducement Doctrine’s Applicability to Firearms
Manufacturer Liability,” 32 Cardozo L. Rev. 689, 720 (2010) (“While
it is apparent that the [arms act] is meant to protect firearms
manufacturers from third party liability in instances of unintentional
support of third party gun violence, instances in which
manufacturers have induced harm should not be barred under [the
arms act]. When manufacturers either intentionally or recklessly
support illegal firearms markets, they are inducing a public
nuisance; therefore the predicate exception should be triggered and
claims should be allowed to proceed.”); but see J. Selkowitz, Note,
“Guns, Public Nuisance, and the PLCAA: A Public Health-Inspired
Legal Analysis of the Predicate Exception,” 83 Temp. L. Rev. 793,
827–28 (2011) (suggesting that examples in predicate exception are
consistent with promotion of public health, permitting maintenance
of statutory public nuisance action “alleging that the gun industry, in
violation of statute, created an environment dangerous to the public’s
health”).

 144a
dealers”), and Jefferies v. District of Columbia, 916 F.
Supp.2d 42, 45–46 (D.D.C. 2013) (claims against assault
rifle manufacturer arising from shooting by third party
are preempted by arms act when only statute pleaded
was District of Columbia’s Assault Weapons
Manufacturing Strict Liability Act, D.C. Code § 7-2551
[2001]), with Corporan v. Wal-Mart Stores East, LP,
United States District Court, Docket No. 16-2305-JWL
(JWL), 2016 WL 3881341 (D. Kan. July 18, 2016)
(concluding that proposed amendments to complaint
saved it from preemption because allegations supported
“plausible claim” that defendants’ “knowingly violated
certain specific provisions of the Gun Control Act of
1968,” 18 U.S.C. § 921 et seq., with respect to straw
purchase of firearm used in shooting), New York v. A-1
Jewelry & Pawn, Inc., 252 F.R.D. 130, 132 (E.D.N.Y.
2008) (concluding that arms act preemption was
inapplicable because “there are alleged in the instant
action substantial violations of specific federal laws
applicable to the sale and marketing of firearms which
allegedly proximately cause harm to the [plaintiff]”
including prohibitions on straw purchasing and violation
of state nuisance statute specifically applicable to
firearms [emphasis omitted]), and Williams v. Beemiller,
Inc., 100 App. Div. 3d 143, 148–50, 952 N.Y.S.2d 333
(2012) (concluding that plaintiffs “sufficiently alleged that
defendants’ knowingly violated various federal and state
statutes applicable to the sale or marketing of firearms
within the meaning of the . . . predicate exception” when
they alleged that federally licensed firearms dealer
knowingly sold multiple handguns to straw purchaser
under circumstances suggesting “trafficking in the
criminal market rather than for their personal use
because [1] they had purchased multiple guns on prior
occasions; [2] they paid for the guns in cash; and [3] they

 145a
selected Hi-Point 9mm handguns, which are
‘disproportionately used in crime’ and have ‘no collector
value or interest,’” with accomplice claims stated based
on government notifications that “over 13,000 guns they
sold had been used in crimes”).
To determine whether CUTPA is a predicate statute
under this standard, I consider that, as a matter of state
law, “CUTPA is, on its face, a remedial statute that
broadly prohibits unfair methods of competition and
unfair or deceptive acts or practices in the conduct of any
trade or commerce. . . . [CUTPA] provides for more
robust remedies than those available under analogous
common-law causes of action, including punitive damages
. . . and attorney’s fees and costs, and, in addition to
damages or in lieu of damages, injunctive or other
equitable relief. . . . To give effect to its provisions,
[General Statutes] § 42-110g (a) of [CUTPA] establishes
a private cause of action, available to [a]ny person who
suffers any ascertainable loss of money or property, real
or personal, as a result of the use or employment of a
method, act or practice prohibited by [General Statutes
§] 42-110b . . . .” (Internal quotation marks omitted.)
Artie’s Auto Body, Inc. v. Hartford Fire Ins. Co., 317
Conn. 602, 623, 119 A.3d 1139 (2015).
“[Section] 42-110b (a) provides that [n]o person shall
engage in unfair methods of competition and unfair or
deceptive acts or practices in the conduct of any trade or
commerce. It is well settled that in determining whether
a practice violates CUTPA we have adopted the criteria
set out in the cigarette rule by the [F]ederal [T]rade
[C]ommission for determining when a practice is unfair:
(1) [W]hether the practice, without necessarily having
been previously considered unlawful, offends public
policy as it has been established by statutes, the common

 146a
law, or otherwise—in other words, it is within at least the
penumbra of some common law, statutory, or other
established concept of unfairness; (2) whether it is
immoral, unethical, oppressive, or unscrupulous;
(3) whether it causes substantial injury to consumers,
[competitors or other businesspersons]. . . . All three
criteria do not need to be satisfied to support a finding of
unfairness. A practice may be unfair because of the
degree to which it meets one of the criteria or because to
a lesser extent it meets all three. . . . Thus a violation of
CUTPA may be established by showing either an actual
deceptive practice . . . or a practice amounting to a
violation of public policy.” (Internal quotation marks
omitted.) Ulbrich v. Groth, 310 Conn. 375, 409–10, 78
A.3d 76 (2013).
“CUTPA, by its own terms, applies to a broad
spectrum of commercial activity. The operative provision
of [that] act, § 42-110b (a), states merely that ‘[n]o person
shall engage in unfair methods of competition and unfair
or deceptive acts or practices in the conduct of any trade
or commerce.’ Trade or commerce, in turn, is broadly
defined as ‘the advertising, the sale or rent or lease, the
offering for sale or rent or lease, or the distribution of
any services and any property, tangible or intangible,
real, personal or mixed, and any other article,
commodity, or thing of value in this state.’ General
Statutes § 42-110a (4). The entire act is remedial in
character; General Statutes § 42-110b (d); Hinchliffe v.
American Motors Corp., 184 Conn. 607, 615 n.4, 440 A.2d
810 (1981); and must ‘be liberally construed in favor of
those whom the legislature intended to benefit.’”
(Emphasis added; footnote omitted.) Larsen Chelsey
Realty Co. v. Larsen, 232 Conn. 480, 492, 656 A.2d 1009
(1995). “CUTPA, like equity, reaches beyond traditional
common law precepts in establishing a fairness standard

 147a
designed to grow and broaden and mold [itself] to meet
circumstances as they arise . . . . The resolution of claims
requiring the application of broadly defined and deeply
rooted public values such as the statute’s elusive, but
[legislatively] mandated standard of fairness . . . has
historically been the function of a court of equity.”21
I also strongly disagree with the majority’s contention that the
theory of liability underlying the plaintiffs’ CUTPA claims “is not
novel” and “does [not] sound in tort,” and, therefore, are not within
the scope of claims that the arms act seeks to preempt. The Second
Circuit has aptly observed that “[u]nfair trade practices found their
origin in the common law of torts. . . .” United States v. Meldish, 722
F.2d 26, 28 (2d Cir. 1983), cert. denied, 465 U.S. 1101, 104 S.Ct. 1597,
80 L.Ed.2d 128 (1984); see also, e.g., Kenney v. Independent Order of
Foresters, 744 F.3d 901, 907 (4th Cir. 2014) (West Virginia unfair
trade practices act claim “sounds in tort” given type of relief
available under statute and sought in complaint); Ins. Co. of North
America v. Della Industries, Inc., 998 F. Supp. 159, 164 (D. Conn.
1998) (CUTPA is tort claim for purposes of assignment under
Uniform Commercial Code), vacated on other grounds, 229 F.3d
1135 (2d Cir. 1999); R. Langer et al., 12 Connecticut Practice Series:
Connecticut Unfair Trade Practices, Business Torts and Antitrust
(2018) § 2.1, p. 13 (noting that CUTPA “has brought both expanded
remedies and broad and indefinite substantive standards to the law
of business torts”). Given the potential for liability and remedy
available under CUTPA, which is broader than that available at
common law; see, e.g., Associated Investment Co. Ltd. Partnership
v. Williams Associates IV, 230 Conn. 148, 159, 645 A.2d 505 (1994); I
disagree with the logic behind the majority’s premise that Congress
intended the arms act to preempt state common-law claims, but
leave undisturbed even broader sources of liability under state unfair
trade practice statutes like CUTPA. See District of Columbia v.
Beretta U.S.A. Corp., supra, 940 A.2d at 171 n.6 (court relied on
findings in 15 U.S.C. § 7901 [a] [3] and [7], and rejected plaintiffs’
reliance on congressional expression of “concern with liability actions
‘without foundation in hundreds of years of the common law’ and that
‘do not represent a bona fide expansion of the common law’” as
standing for proposition that “Congress was substantially less
troubled by the existence of statutory liability actions reflecting
judgments ‘by the legislatures of the several [s]tates’” because “[n]o
21

 148a
(Citations omitted; internal quotation marks omitted.)
Associated Investment Co. Ltd.Partnership v. Williams
Associates IV, 230 Conn. 148, 159, 645 A.2d 505 (1994);
see also id., at 161–62, 645 A.2d 505 (no state
constitutional right to jury trial of CUTPA claim).
In summary, whether this court agrees with Congress
or not, in adopting the arms act, Congress adopted
findings and statements of purpose in 15 U.S.C. § 7901;
see footnote 1 of this dissenting opinion; which made very
clear its intent to absolve defendants’ like these—gun
manufacturers and distributors—from liability for
criminal use of firearms by third parties except in the
most limited and narrow circumstances and, particularly,
to shield them from novel or vague standards of
liability. 22 This court is obligated, therefore, to construe
such distinction . . . is reflected either in the definition of a ‘qualified
civil liability action’ or in the enumerated actions excluded
therefrom, including the predicate exception; and to posit one all the
same would ignore [Congress’] objection to ‘[l]awsuits” as a class
[unless excepted] that ‘seek money damages and other relief [against
manufacturers and sellers] for the harm caused by the misuse of
firearms by third parties, including criminals’” [emphasis omitted]).
22
I disagree with the majority’s argument that the sponsors of the
arms act “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 misconduct in selling the
weapons involved. . . . Many proponents 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.” (Citation omitted;
emphasis added.) The majority’s assertion that the sponsors of the
arms act did not desire to foreclose claims by individual plaintiffs
who had suffered specific harm from an instance of gun violence is an
overly generous reading of the legislative history. The legislative
history indeed indicates that Congress specifically rejected proposed
amendments that would have provided two groups of politically

 149a
the predicate exception to the arms act, 15 U.S.C. § 7903
(5) (A) (iii), narrowly in light of that clear expression of
congressional intent. See, e.g., Trinity Christian School
v. Commission on Human Rights & Opportunities, 329
Conn. 684, 697–98, 189 A.3d 79 (2018) (“[i]t is not the
province of this court, under the guise of statutory
interpretation, to legislate . . . a [particular] policy, even if
we were to agree . . . that it is a better policy than the one
endorsed by the legislature as reflected in its statutory
language” [internal quotation marks omitted]). Put
differently, “[w]hen we construe a statute, we act not as
plenary lawgivers but as surrogates for another policy
maker, [that is] the legislature. In our role as surrogates,
our only responsibility is to determine what the
legislature, within constitutional limits, intended to do.”
(Internal quotation marks omitted.) State v. Salamon,
287 Conn. 509, 520, 949 A.2d 1092 (2008). My analysis of
the relevant statutory text, case law, canons of
construction, and legislative history demonstrates that
Congress intended to limit predicate statutes under that
exception to those statutes that relate specifically to the
sale and manufacture of firearms. 23 Consequently, I
sympathetic individual plaintiffs, namely children and law
enforcement officers injured in the line of duty, with relief from the
strictures of the arms act. See 151 Cong. Rec. 19,116–17 (2005),
remarks of Senator Frank Raleigh Lautenberg (proposing exception
for children); id., 19,125–26, remarks of Senator Jon Stevens Corzine
(proposing law enforcement exception); H.R. Rep. No. 109-124H.R.
Rep. No. 109-124, supra, pp. 64–65, remarks of Representative
Sheila Jackson Lee (proposing exemption for children); H.R. Rep.
No. 109-124H.R. Rep. No. 109-124, supra, pp. 110–11, remarks of
Representative Zoe Lofgren (describing potential effect of arms act
on case of New Jersey police officers who brought action against gun
dealer who sold weapons to straw buyer despite his suspicions).
23
I agree with the majority that the “regulation of advertising that
threatens the public health, safety, and morals has long been

 150a
strongly disagree with the majority’s conclusion that
CUTPA, which is a broadly drafted state unfair trade
practices statute applicable to all commercial entities in a
variety of factual circumstances, comes within that
exception. 24 Instead, I would conclude that, because
considered a core exercise of the states’ police powers.” See, e.g.,
Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 541–42, 121 S.Ct. 2404,
150 L.Ed.2d 532 (2001). Nevertheless, I find overbroad the
majority’s reliance on the well established presumption that
“Congress does not intend to supersede the historic police powers of
the [s]tates absent clear intent . . . .” (Internal quotation marks
omitted.) Federal Housing Finance Agency v. Nomura Holding
America, Inc., 873 F.3d 85, 112 n.30 (2d Cir. 2017); see also, e.g.,
Altria Group, Inc. v. Good, 555 U.S. 70, 77, 129 S.Ct. 538, 172
L.Ed.2d 398 (2008); Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116
S.Ct. 2240, 135 L.Ed.2d 700 (1996). The majority’s heavy reliance on
this presumption elevates it beyond the more holistic preemption
inquiry undertaken when the statutory language is ambiguous, as we
consider the statute’s “structure and purpose . . . as a whole as
revealed not only in the text, but through the reviewing court’s
reasoned understanding of the way in which Congress intended the
statute and its surrounding regulatory scheme to affect business,
consumers, and the law.” (Citation omitted; internal quotation marks
omitted.) Medtronic, Inc. v. Lohr, supra, at 486, 116 S.Ct. 2240. In
contrast, my review of the legislative history, and particularly the
remarks of members of Congress expressing their concerns over the
breadth of a gross negligence exception and the potential for vague
standards of liability, indicates that Congress would not have
contemplated letting a broadly worded state unfair trade practice
statute like CUTPA be used to eviscerate its intent to protect
firearms manufacturers and dealers from litigation arising from
shootings perpetrated by third parties. See part IV of this
dissenting opinion.
24
I also note that the majority observes that certain members of
Congress “were committed to Americans’ second amendment
freedoms and sought to secure those freedoms by immunizing
firearms companies from frivolous lawsuits.” Citing recent federal
cases considering the constitutionality of bans on “assault weapons”
and “high capacity magazines,” the majority also notes, however,
that “[i]t is not at all clear . . . that the second amendment’s

 151a
CUTPA, both in its statutory text and in its
implementation under the cigarette rule, reaches a range
of commercial conduct that far exceeds the manufacture,
marketing, and sale of firearms, it is not by itself a
predicate statute. That state unfair trade practices
statutes had not been used to hold firearms
manufacturers civilly liable to crime victims 25 renders the
protections even extend to the types of quasimilitary,
semiautomatic assault rifles at issue in the present case.” See, e.g.,
Kolbe v. Hogan, 849 F.3d 114, 136 (4th Cir.) (AR-15 with high
capacity magazine is “weapon of war” excluded from second
amendment coverage), 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, 257–61 (2d Cir. 2015) (assuming, arguendo,
that second amendment protections extend to assault rifles, but
concluding that ban on such weapons survives intermediate
scrutiny). My review of the legislative history and statutory text
does not indicate any intent by Congress to identify predicate
statutes by examining various nuances of second amendment law.
Because the degree to which the second amendment protects the
AR-15 is, therefore, not at issue in this appeal, I do not consider that
question further.
25
The majority states that it “must [be] presum[ed] that Congress
was aware, when it enacted [the arms act], that both the [Federal
Trade Commission] 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 products in an unsafe and unscrupulous manner.”
The majority then cites cases from this state for the proposition that
“CUTPA . . . has been applied to the sale of firearms,” and decisions
from other jurisdictions for the proposition that “regulation of
firearms advertising in our sister states frequently has been
accomplished under the auspices of state consumer protection and
unfair trade practice laws.” In my view, these decisions stand only
for the proposition that wide reaching unfair trade practice statutes
are as applicable to the firearms industry as they are to any other
business; they have nothing at all to do with the arms act or the
predicate exception. See Melton v. Century Arms, Inc., 243 F.
Supp.3d 1290, 1296–97, 1305–1306 (S.D. Fla. 2017) (rifle owners

 152a
brought, inter alia, Florida unfair trade practices act claim arising
from advertising and sale of AK-47 rifles with known design defect
that allows accidental discharge); FN Herstal, S.A. v. Clyde Armory,
Inc., 123 F. Supp.3d 1356, 1375–76 and n.105 (M.D. Ga. 2015)
(firearms manufacturer brought trademark infringement claims
against firearms distributor and retailer under federal Lanham Act
and Georgia deceptive trade practices law), aff’d, 838 F.3d 1071
(11th Cir. 2016), cert. denied, --- U.S.---, 137 S.Ct. 1436, 197 L.Ed.2d
649 (2017); Beretta U.S.A. Corp. v. Federal Ins. Co., 117 F. Supp.2d
489, 492 (D. Md. 2000) (whether products hazard liability exclusion in
commercial general liability policy relieved insurer of duty to defend
and indemnify firearms manufacturer against claims of violations of
state unfair trade practices statutes arising from “deceptive
marketing and advertising of its products, by promoting the false
notion that gun ownership and possession of handguns in the home
increases one’s security”), aff’d, 17 Fed. Appx. 250 (4th Cir. 2001);
People v. Arcadia Machine & Tool, Inc., Docket No. 4095 (VPD),
2003 WL 21184117, *26 (Cal. Super. April 10, 2003) (denying
summary judgment in pre-arms act case on claim that Ohio gun
distributor engaged in deceptive advertising “by advertising banned
assault weapons in a manner that is likely to mislead potential
California purchasers to believe that purchase and possession of
such weapons is lawful, thereby creating an illegal market for such
firearms in California”), aff’d sub nom. In re Firearm Cases, 126
Cal. App. 4th 959, 24 Cal. Rptr.3d 659 (2005); American Shooting
Sports Council, Inc. v. Attorney General, 429 Mass. 871, 882, 711
N.E.2d 899 (1999) (“[T]he Attorney General’s regulatory authority
under [state unfair trade practices act] regarding defective products
is not limited to marketing and disclosure issues as the plaintiffs
contend. His authority properly extends to regulating the sale of a
product as unfair or deceptive when the product is defective in ways
which a purchaser would not anticipate or the product is not as
warranted, and to regulating in a manner which coordinates [unfair
trade practices] liability with legislation declaring certain acts
unlawful.”); Opinions, N.M. Atty. Gen. No. 77-23 (July 19, 1977) p.
149 (“There is nothing in [statute prohibiting carrying of firearms in
liquor establishment] which makes it unlawful to advertise the sale of
firearms in a liquor establishment, but since the liquor establishment
cannot sell firearms, the advertising of the sale of firearms in the
liquor establishment would constitute false advertising and an unfair
or deceptive trade practice. . . . Of course, this is not intended to

 153a
mean that the advertising of firearms as a general principle is
forbidden in liquor establishments, but that any business
establishment could not advertise something that it does not sell
since that would be in violation of the statutes cited.” [Citations
omitted.]).
The majority’s reliance on two Connecticut cases, namely, Ganim v.
Smith & Wesson Corp., 258 Conn. 313, 780 A.2d 98 (2001), and
Salomonson v. Billistics, Inc., Superior Court, judicial district of
New London, Docket No. CV-88-508292, 1991 WL 204385
(September 27, 1991), for the proposition that CUTPA has been
previously applied to the sale and marketing of firearms is similarly
unavailing. As the majority recognizes, this court’s decision in
Ganim was limited to a conclusion that municipalities lacked
standing to pursue claims against firearms manufacturers and
sellers for harms arising from gun violence. Ganim v. Smith &
Wesson Corp., at 365, 780 A.2d 98. Indeed, the court specifically
declined to address the substantive legal issues presented in that
case, including whether firearms manufacturers and sellers may be
held liable under CUTPA for “unfair and deceptive advertising” and
“unfair and deceptive sales practices,” as supported by allegations
that the firearms manufacturers and dealers “marketed and sold
their handguns in a manner that causes harm to individuals,
especially young children in Bridgeport; marketed and sold their
handguns in a manner that contributes to homicides, suicides and
accidental deaths in Bridgeport; and engaged in a campaign of
misrepresentation concerning the dangers of their handguns” and
that they “sell excessive numbers of guns to individual buyers,
knowing or having reason to know that some or all of those guns are
not for personal use, and are likely to be resold illegally and used to
commit crimes; and sell guns that fail to incorporate feasible safety
devices that would prevent misuse by unauthorized and unintended
users.” Id., at 334–36. Accordingly, this court’s decision in Ganim
about the plaintiffs’ standing in that case has absolutely no
precedential value with respect to the viability of a CUTPA claim
founded on the “immoral advertising” of firearms.
The Superior Court’s decision in Salomonson is even more
inapposite than Ganim. Salomonson, which is a report of an
attorney trial referee rather than a decision of a judge of the
Superior Court, does not involve crime or victims of crime, but
instead is a routine business dispute, in which the court held that a
gun fabricator violated CUTPA by failing to perform under a

 154a
plaintiffs’ CUTPA claims particularly novel in the
contemplation of Congress; see 15 U.S.C. § 7901 (a) (7)
(2012); and, thus, subject to preclusion under the arms
act. 26 I conclude, therefore, that the arms act preempts
the plaintiffs’ claims of immoral advertising in violation of
contract to convert three semi-automatic rifles to fully automatic
weapons, including by obtaining necessary federal regulatory
approvals. See Salomonson v. Billistics, Inc., supra, Superior
Court, Docket No. CV-88-508292.
26
The majority speculates about what Congress would have intended
with respect to preemption in relation to an elaborate hypothetical
about a “terrible crime like the ones involved in the Sandy Hook
massacre” perpetrated by a “troubled young man” who had watched
a firearms seller’s “explicit advertisements depicting and glorifying
school shootings, and pro-mot[ing] its products in video games, such
as ‘School Shooting,’ that glorify and reward such unlawful conduct.”
The majority posits that “even the most ardent sponsors of [the arms
act] would not have wanted to bar a consumer protection lawsuit
seeking to hold the supplier accountable for the injuries wrought by
such unscrupulous marketing practices.”
The majority then
observes “that is not this case, and yet the underlying legal
principles are no different. Once we accept the premise that
Congress did not intend to immunize firearms suppliers who engage
in truly unethical and irresponsible marketing practices promoting
criminal conduct, and given that statutes such as CUTPA are the
only means available 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.” I do not share the
majority’s apparent optimism about the 109th Congress, which
passed the arms act; specifically, until those who ply their judicial
craft at One First Street tell me differently, I do not believe that
they would have been inclined to allow the use of a broadly drafted
statute like CUTPA to hold a firearm manufacturer or seller
involved in such a hypothetical liable for anything more than
thoughts and prayers. Put differently, the arms act would preempt
recourse unless the immoral and repugnant practices described by
the majority violated a statute or regulation specifically governing
the manner in which firearms may be advertised or marketed, as
opposed to a more broadly applicable statute like CUTPA.

 155a
CUTPA. 27 I, therefore, respectfully disagree with part V
of the majority’s opinion, and I would affirm the
judgment of the trial court in its entirety.
Accordingly, I respectfully dissent.

I emphasize that my conclusion is limited to CUTPA claims that do
not rely on firearms-specific statutes as their source of public policy,
insofar as I conclude only that CUTPA itself is not a predicate
statute. Put differently, I do not conclude that the arms act
preempts all CUTPA causes of action, but only that the predicate
exception does not save those that do not allege the violation of a
firearms-specific regulation or statute. See Ileto v. Glock, Inc.,
supra, 565 F.3d at 1133 (noting distinction between right of action
and predicate statute for purposes of arms act); cf. Sturm v. Harb
Development, LLC, 298 Conn. 124, 139, 2 A.3d 859 (2010)
(“[a]lthough CUTPA is primarily a statutory cause of action . . . it
equally is recognized that CUTPA claims may arise from underlying
causes of action, such as contract violations or torts, provided the
additional CUTPA elements are pleaded” [citation omitted]).
27

 APPENDIX B
Superior Court of Connecticut,
Judicial District of Fairfield at Bridgeport.
Donna L. Soto, Administratrix Estate of Victoria L. Soto
et al.
v.
Bushmaster Firearms International, LLC et al.
FBTCV156048103S
 
October 14, 2016
Bellis, J.
I
BACKGROUND
On January 26, 2015, the plaintiffs, William D.
Sherlach, Natalie Hammond, and the administrators or
executors 1 of the estates of Victoria L. Soto, Dylan C.
Hockley, Mary J. Sherlach, Noah S. Pozner, Lauren G.
Rousseau, Benjamin A. Wheeler, Jesse McCord Lewis,
Daniel G. Barden, and Rachel M. D’Avino, filed this
action for damages and injunctive relief against the
defendants, Bushmaster Firearms International, LLC,
The names of the administrators and executors of the estates are as
follows: Donna L. Soto, administratrix of the estate of Victoria L.
Soto; Ian and Nicole Hockley, co-administrators of the estate of
Dylan C. Hockley; William D. Sherlach, executor of the estate of
Mary J. Sherlach; Leonard Pozner, administrator of the estate of
Noah S. Pozner; Gilles J. Rousseau, administrator of the estate of
Lauren G. Rousseau; David C. Wheeler, administrator of the estate
of Benjamin A. Wheeler; Neil Heslin and Scarlett Lewis, coadministrators of the estate of Jesse McCord Lewis; Mark and
Jacqueline Barden, co-administrators of the estate of Daniel G.
Barden; and Mary D’Avino, administratrix of the estate of Rachel M.
D’Avino.

1

(156a)

 157a
Freedom
Group,
Inc.,
Bushmaster
Firearms,
Bushmaster Firearms, Inc., Bushmaster Holdings, LLC,
Remington Arms Co., LLC, and Remington Outdoor
Company (collectively, Remington defendants); Camfour,
Inc. and Camfour Holding, LLP (collectively, Camfour
defendants); and Riverview Sales, Inc. and David
LaGuercia (collectively, Riverview defendants).
On
2
January 15, 2015, the Remington defendants, with the
consent of the Camfour and Riverview defendants,
removed the case to the United States District Court for
the District of Connecticut on the basis of diversity
jurisdiction pursuant to 28 U.S.C. § 1332. 3 The plaintiffs
filed a motion to remand, and the District Court,
Chatigny, J, ultimately agreed with the plaintiffs, and
ordered the case to be remanded to this court on October
9, 2015.
In their thirty-three-count amended complaint dated
October 29, 2015, the plaintiffs allege the following facts.
On the morning of December 14, 2012, Adam Lanza
entered Sandy Hook Elementary School, located in
Newtown, Connecticut, carrying a Bushmaster AR-15
rifle, model XM15–E2S. Lanza then used the weapon,
which was designed for military use and engineered to
deliver maximum carnage with extreme efficiency, to kill
While this action was not filed in this court until January 26, 2015,
the action was, in fact, commenced by service of process on the
defendants at various dates in December of 2014 and January of
2015. Accordingly, the Remington defendants were able to file a
motion for removal to federal court on January 15, 2015, before the
filing of the action in this court actually occurred.
3
Title 28 of the United States Code, § 1332, provides in relevant
part: “(a) The district courts shall have original jurisdiction of all
civil actions where the matter in controversy exceeds the sum or
value of $75,000, exclusive of interest and costs, and is between—(1)
Citizens of different States . . .”
2

 158a
twenty-six people, including the plaintiffs’ decedents, and
to wound others, including Natalie Hammond, in less
than five minutes. The weapon had been bought by
Lanza’s mother to give to and/or share with her son.
The plaintiffs further allege that the defendants, all
makers and sellers of the Bushmaster XM15–E2S, know
that civilians are unfit to operate AR-15s, and yet
continue selling the Bushmaster XM15–E2S to the
civilian market, disregarding the unreasonable risks that
the weapon poses “outside of specialized, highly
regulated institutions like the armed forces and law
enforcement,” in an effort to continue profiting from the
weapon’s sale. In addition, the defendants knew, or
should have known, the following: the sale of assault
rifles like the XM15–E2S to the civilian market posed an
unreasonable and egregious risk of physical injury to
others, as a mass casualty event was within the scope of
the risk created both by the Remington defendants’
marketing and by the defendants’ sale of the XM15–E2S
to the civilian market; there was an unreasonably high
risk that the XM15–E2S would be used in a mass
shooting to inflict maximum casualties before law
enforcement was able to intervene; schools are
particularly vulnerable to—and frequently targets of—
mass shootings; the utility of the XM15–E2S for hunting,
sporting, or self-defense was negligible in comparison to
the risk that the weapon would be used in its assaultive
capacity; and the XM15–E2S, when used in its assaultive
capacity, would be likely to inflict multiple casualties and
serious injury.
The plaintiffs also allege that, despite this knowledge,
the Remington defendants “unethically, oppressively,
immorally, and unscrupulously marketed and promoted
the assaultive qualities and military uses of AR-15s to
civilian purchasers,” and all of the defendants

 159a
“unethically,
oppressively,
immorally,
and
unscrupulously promoted the sale of AR–15s with the
expectation and intent that possession and control of
these weapons would be shared with and/or transferred
to unscreened civilian users following purchase, including
family members.” Moreover, the Remington defendants
knew, or should have known, that the Camfour
defendants’ use of the product—supplying it to dealers
who sell directly to civilians—involved an unreasonable
risk of physical injury to others, while the Camfour
defendants knew, or should have known, that the
Riverview defendants’ use of the product supplying it to
the civilian population—involved an unreasonable risk of
physical injury to others. 4
Counts one through nine and thirteen through thirty
of the amended complaint sound in wrongful death 5
The amended complaint also expressly alleges that the Camfour
defendants and the Riverview defendants are qualified product
sellers within the meaning of 15 U.S.C. § 7903(6). Section 7903(6) of
title 15 of the United States Code provides in relevant part: “The
term ‘seller’ means, with respect to a qualified product—(A) an
importer. . . who is engaged in the business as such an importer in
interstate or foreign commerce and who is licensed to engage in
business as such an importer under chapter 44 of title 18, United
States Code . . .; (B) a dealer . . . who is engaged in the business as
such a dealer in interstate or foreign commerce and who is licensed
to engage in business as such a dealer under chapter 44 of title 18,
United States Code . . .; or (C) a person engaged in the business of
selling ammunition . . . in interstate or foreign commerce at the
wholesale or retail level.”
5
The wrongful death claims are brought pursuant to General
Statutes § 52-555, which 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 administrator 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
4

 160a
against the three groups of defendants on behalf of the
plaintiffs’ decedents. These counts allege that the
defendants’ conduct was a substantial factor resulting in
the injuries, suffering, and death of the plaintiffs’
decedents in that the decedents suffered terror, antemortem pain and suffering, destruction of the ability to
enjoy life’s activities, destruction of earning capacity, and
death. These counts also allege that as a result of the
injuries and deaths of the plaintiffs’ decedents, their
estates incurred funeral expenses to their financial loss.
Counts ten through twelve sound in loss of consortium
against the three groups of defendants by William
Sherlach, the husband of Mary J. Sherlach. Finally,
counts thirty-one through thirty-three are brought
against the three groups of defendants by Natalie
Hammond, alleging that the defendants’ conduct was a
substantial factor resulting in the injuries of Hammond
in that she suffered terror; pain and suffering; severe,
permanent, and painful injuries to her left calf, foot,
thigh, and hand; destruction of the ability to enjoy life’s
activities; and destruction of earning capacity.
Hammond also alleges she incurred medical expenses to
her financial loss. Within each of these thirty-three
counts, the plaintiffs allege that the defendants’ conduct
constituted a knowing violation of the Connecticut Unfair
Trade Practices Act (CUTPA), General Statutes § 42110a et seq.
On April 22, 2016, the Remington defendants, 6
Camfour defendants, 7 and Riverview defendants 8 each
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.”
6
The Remington defendants specifically move to strike counts one,
four, seven, ten, thirteen, sixteen, nineteen, twenty-two, twenty-five,

 161a
filed a motion to strike the amended complaint for failure
to state legally sufficient claims upon which relief may be
granted, on the grounds that the defendants are immune
from the claims by virtue of the Protection of Lawful
Commerce in Arms Act (PLCAA), 15 U.S.C. § 7901 et
seq. (2012), 9 because they have not sufficiently alleged
causes of action that are permitted under any exception
to immunity set forth in PLCAA, namely, the negligent
entrustment exception, 15 U.S.C. § 7903(5)(A)(ii), 10 and/or
the predicate exception, 15 U.S.C. § 7903(5)(A)(iii). 11 On
twenty-eight, and thirty-one. These particular counts constitute the
entirety of the allegations against the Remington defendants
contained in the amended complaint.
7
The Camfour defendants specifically move to strike counts two,
five, eight, eleven, fourteen, seventeen, twenty, twenty-three,
twenty-six, twenty-nine, and thirty-two. These particular counts
constitute the entirety of the allegations against the Camfour
defendants contained in the amended complaint.
8
The Riverview defendants move to strike counts three, six, nine,
twelve, fifteen, eighteen, twenty-one, twenty-four, twenty-seven,
thirty, and thirty-three. These particular counts constitute the
entirety of the allegations against the Riverview defendants
contained in the amended complaint.
9
Title 15 of the United States Code, § 7902(a), provides that “[a]
qualified civil liability action may not be brought in any Federal or
State court.” A “qualified civil liability action” is “a civil action or
proceeding or an administrative proceeding brought by any person
against a manufacturer or seller of a qualified product, or a trade
association, for damages, punitive damages, injunctive or declaratory
relief, abatement, restitution, fines, or penalties, or other relief,
resulting from the criminal or unlawful misuse of a qualified product
by the person or a third party . . . 15 U.S.C. § 7903(5)(A) (2012).
10
Title 15 of the United States Code, § 7903(5)(A)(ii), provides: “The
term ‘qualified civil liability action’ . . . shall not include . . . an action
brought against a seller for negligent entrustment or negligence per
se . . .”
11
Title 15 of the United States Code, § 7903(5)(A)(iii), provides in
relevant part: “The term ‘qualified civil liability action’ . . . shall not

 162a
May 27, 2016, the plaintiffs filed an omnibus objection to
the defendants’ motions to strike, and on June 10, 2016,
the Remington and Camfour defendants filed reply
memoranda. Oral argument on the motions was heard on
June 20, 2016, at which time the court reserved
judgment.
II
DISCUSSION
“The purpose of a motion to strike is to contest . . . the
legal sufficiency of the allegations of any complaint . . . to
state a claim upon which relief can be granted.” (Internal
quotation marks omitted.) Fort Trumbull Conservancy,
LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). A
motion to strike “requires no factual findings by the trial
court . . . [The court] construe[s] the complaint in the
manner most favorable to sustaining its legal sufficiency .
. . Thus, [i]f facts provable in the complaint would support
a cause of action, the motion to strike must be denied . . .
Moreover, [the court notes] that [w]hat is necessarily
implied [in an allegation] need not be expressly alleged . .
. It is fundamental that in determining the sufficiency of
a complaint challenged by a defendant’s motion to strike,
all well-pleaded facts and those facts necessarily implied
from the allegations are taken as admitted. Indeed,
pleadings must be construed broadly and realistically,
rather than narrowly and technically.” (Internal
quotation marks omitted.) Coppola Construction Co. v.
Hoffman Enterprises Ltd. Partnership, 309 Conn. 342,
350, 71 A.3d 480 (2013).

include . . . an action in which a manufacturer or seller of a qualified
product knowingly violated a State or Federal statute applicable to
the sale or marketing of the product, and the violation was a
proximate cause of the harm for which relief is sought . . .”

 163a
A
Negligent Entrustment Exception to PLCAA
Pursuant to PLCAA, and subject to certain
exceptions enumerated therein, “causes of action against
manufacturers, distributors, dealers, and importers of
firearms or ammunition products, and their trade
associations, for the harm solely caused by the criminal
or unlawful misuse of firearm products or ammunition
products by others when the product functioned as
designed and intended,” are prohibited. 12 15 U.S.C. §
7901(b)(1) and § 7902(a) (2012). One such exception,
which is set forth in 15 U.S.C. § 7903(5)(A)(ii), permits
“an action brought against a seller for negligent
entrustment.” PLCAA specifically defines “negligent
entrustment” as “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.” 15 U.S.C. § 7903(5)(B)
(2012). “[A]n action brought against a seller for negligent
entrustment”; 15 U.S.C. § 7903(5)(A)(ii) (2012); is exempt
from the PLCAA definition of a qualified, and therefore
prohibited, civil liability action. 15 U.S.C. §§ 7902, 7903
(2012).
The parties disagree as to which law the plaintiffs’
negligent entrustment claims must comply with in order
to satisfy PLCAA’s negligent entrustment exception
Connecticut state law on negligent entrustment, the
statutory definition set forth in PLCAA, or both. In their
memorandum of law, the Remington defendants contend
The parties do not dispute that, unless one of the exceptions
enumerated in PLCAA applies, the plaintiffs’ action against the
defendants would be barred by PLCAA’s immunity provisions.
12

 164a
that “[a] viable state law action that fits within an
exception is not prohibited under the PLCAA” and
recognize that “relevant state law must be examined to
determine whether a plaintiff has pleaded a cause of
action that fits within a narrowly defined exception to
immunity.” The arguments in their brief, however,
pertain solely to the negligent entrustment exception set
forth in PLCAA. The Camfour defendants aver that the
plaintiffs have failed to allege legally sufficient negligent
entrustment claims pursuant to both Connecticut law and
PLCAA. Finally, the Riverview defendants adopt the
other defendants’ contentions, but they argue exclusively
under PLCAA. At oral argument, counsel for the
plaintiffs contended that “the sufficiency of [their]
claim[s] should be about Connecticut law and it shouldn’t
be about PLCAA.”
There is no appellate authority on this issue. In one
decision, the Superior Court found that “[The PLCAA
definition of negligent entrustment] is consistent with
Connecticut law on negligent entrustment . . .” Gilland
v. Sportsmen’s Outpost, Inc., Superior Court, judicial
district of Hartford, Complex Litigation Docket, Docket
No. X04–CV-09-5032765–S (May 26, 2011, Shapiro, J.),
appeal dismissed, Appellate Court, Docket No. AC 33926
(November 17, 2011), cert. denied, 303 Conn. 938, 36 A.3d
696 (2012). Nonetheless, because “[i]t is a basic tenet of
statutory construction that the legislature [does] not
intend to enact meaningless provisions”; (internal
quotation
marks
omitted);
Lopa
v.
Brinker
International, Inc., 296 Conn. 426, 433, 994 A.2d 1265
(2010); the court must presume “that there is a purpose
behind every sentence, clause, or phrase used in
[PLCAA] . . . that no part of [the] statute is superfluous .
. . [and that] [e]very word and phrase . . . [has] meaning . .
.” (Internal quotation marks omitted.) Id.

 165a
Although PLCAA explicitly preserves claims that fall
within its enumerated exceptions, such as negligent
entrustment actions, it does not create them. 15 U.S.C. §
7903(5)(A)(ii) and (5)(C) (2012).
PLCAA explicitly
provides that “no provision of this chapter shall be
construed to create a public or private cause of action or
remedy.” 15 U.S.C. § 7903(5)(C) (2012). By its own
terms, therefore, PLCAA cannot be read as creating a
cause of action. Accordingly, the court concludes that for
a plaintiffs negligent entrustment claim to be permitted
under PLCAA. it must arise under state law. See
Phillips v. Lucky Gunner, LLC, 84 F.Sup.3d 1216 (2015)
(“Although the PLCAA identifies negligent entrustment
as an exception to immunity, it does not create the cause
of action . . . Accordingly, the claim arises under state
law”).
Nonetheless, because Congress specifically
included a definition of “negligent entrustment” in
PLCAA, the court presumes that the definition serves a
purpose and carries a meaning beyond merely
referencing state common-law claims. Therefore, any
state law negligent entrustment claim must also satisfy
the PLCAA definition of “negligent entrustment.” See,
e.g., Delana v. CED Sales, Inc., 486 S.W.3d 316 (Mo.
2016), reh’g denied (May 24, 2016) (“a state-law claim
may continue to be asserted . . . if it falls within the
definition of a ‘negligent entrustment’ claim provided in
the PLCAA”). Accordingly, the court will examine
whether the plaintiffs’ allegations meet the requirements
for negligent entrustment claims under both Connecticut
common law and the statutory definition set forth in
PLCAA.
1
Negligent Entrustment Pursuant to Connecticut Law
All three defendant groups argue, with varying levels
of specificity, that the plaintiffs have not alleged legally

 166a
sufficient negligent entrustment claims pursuant to
Connecticut law. The Camfour defendants, whose state
law argument is most fully developed, contend that their
entrustees, the Riverview defendants: (1) are not alleged
to have used the firearm in a way that created an
unreasonable risk; (2) are not alleged to have been
incompetent; and (3) did not directly cause the harm.
The plaintiffs counter that the sufficiency of their claims
depends on the element of foreseeability and urge the
court to adopt their argument that the defendants
foresaw, or should have foreseen, that entrustment of an
AR-15 to civilians, as a class, in a civilian environment
created an unreasonable risk of harm, including the risk
that the firearm would be used in a mass shooting in a
school setting. In their reply memorandum, the Camfour
defendants argue that “civilians” cannot constitute a
“class of persons” for purposes of negligent entrustment.
Negligent entrustment has existed as a cognizable
tort in Connecticut for at least one hundred years. In
1916, without using the term “negligent entrustment,”
our Supreme Court addressed whether parents were
negligent for putting a shotgun in the hands of their
nearly sixteen-year-old son. Wood v. O’Neil, 90 Conn.
497, 498-500, 97 A. 753 (1916). Although the opinion does
not set forth the parameters of this cause of action, it is
notable that the court concluded that the claim must fail,
in part, due to the lack of evidence that the parents had
knowledge that their son would misuse the shotgun.
Four years later, that court considered whether a
“defendant was negligent in entrusting to . . . ‘an
unlicensed, reckless young man, a loaded revolver, in
violation of the statute laws of the state, when it knew, or
by the exercise of reasonable care might have known,
that he was an unfit and reckless person and liable to fall
into a passion, and in that it did not select a proper and fit

 167a
person for the duties assigned him’ . . .” Turner v.
American District Telegraph & Messenger Co., 94 Conn.
707, 711-12, 110 A. 540 (1920). In that case, the Supreme
Court noted the necessity of establishing the entrustor’s
knowledge of the entrustee’s incompetence. It explained:
“Another condition stated is that the defendant, when it
sent [the shooter] forth with a revolver, knew or ought to
have known that he was a reckless person, liable to fall
into a passion and unfit to be entrusted with a deadly
weapon upon such an occasion. We have examined with
care the testimony and fail to find even a scintilla of
evidence that the defendant had or ought to have had
knowledge or even suspicion that [the shooter] possessed
any of the traits rightly or wrongly attributed to him by
the plaintiff. Without this vitally important fact the
plaintiff’s claim falls to the ground . . . .” Id., 716. In
other words, the court held that the plaintiff’s claim could
not succeed without evidence that the defendant had., or
should have had, knowledge or suspicion about the
entrustee’s traits.
Since Turner, courts have discussed negligent
entrustment mostly in the automobile context. Lewis v.
Burke, Superior Court, judicial district of Hartford,
Docket No. CV-10-6011976-S (November 28, 2014, Elgo,
J.); but see Gilland v. Sportsmen’s Outpost, Inc., supra,
Superior Court, Docket No. X04-CV-09-5032765-S
(negligent entrustment of a handgun and ammunition);
Kalina v. Kmart Corp.-Superior Court, judicial district of
Fairfield, Docket No. CV-90¬269920-S (August 5, 1993,
Lager, J.) (negligent entrustment of a rifle and
ammunition). “The Connecticut Supreme Court first
recognized a cause of action for negligent entrustment of
an automobile in Greeley v. Cunningham, 116 Conn. 515,
165 A. 678 (1933).” Davis v. Elrac, LLC, Superior Court,
judicial district of New Haven, Docket No. CV-13-

 168a
6037866-S (September 26, 2014, Wilson, J.). “Superior
Court cases applying the negligent entrustment doctrine
established in Greeley note that Greeley adopted the
approach set forth in the Restatement of Torts. See, e.g.,
Morin v. Keddy, Superior Court, judicial district of
Hartford-New Britain at Hartford, Docket No. CV-90701113-S (October 25, 1993, Hennessey, J.) (10 Conn. L.
Rptr. 281); Hughes v. Titterton, Superior Court, judicial
district of Hartford-New Britain at Hartford, Docket No.
292024 (July 13, 1987, Wagner, J.) (2 C.S.C.R. 8452
C.S.C.R. 845).” Jordan v. Sabourin, Superior Court,
judicial district of New London, Docket No. 537041
(November 22, 1996, Hurley, J.T.R.) (18 Conn. L. Rptr.
269, 270). Section 390 of the Restatement (Second) of
Torts provides that “[o]ne who supplies directly or
through a third person 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 whom the supplier should
expect to share in or be endangered by its use, is subject
to liability for physical harm resulting to them.” 2
Restatement (Second), Torts § 390 (1965).
Comment (b) to § 390 explains: “This Section deals
with the supplying of a chattel to a person incompetent to
use it safely, irrespective of whether the chattel is to be
used for the suppliers’ purposes or for the purpose of him
to whom it is supplied. In the one case as in the other,
liability is based upon the rule . . . that the actor may not
assume that human beings will conduct themselves
properly if the facts which are known or should be known
to him should make him realize that they are unlikely to
do so. Thus, one who supplies a chattel for the use of
another who knows its exact character and condition is
not entitled to assume that the other will use it safely if

 169a
the supplier knows or has reason to know that such other
is likely to use it dangerously, as where the other belongs
to a class which is notoriously incompetent to use the
chattel safely, or lacks the training and experience
necessary for such use, or the supplier knows that the
other has on other occasions so acted that the supplier
should realize that the chattel is likely to be dangerously
used, or that the other, though otherwise capable of using
the chattel safely, has a propensity or fixed purpose to
misuse it. This is true even though the chattel is in
perfect condition, or though defective, is capable of safe
use for the purposes for which it is supplied by an
ordinary person who knows of its defective condition.” 2
Restatement (Second), supra, § 390, comment (b).
As several Superior Court decisions have recognized,
our appellate case law has not altered the doctrine of
negligent entrustment from that which was announced in
Greeley. See, e.g., Short v. Ross, Superior Court, judicial
district of New Haven, Docket No. CV-12-6028521-S
(February 26, 2013, Wilson, J.) (55 Conn. L. Rptr. 668,
671); Angione v. Bloom, Superior Court, judicial district
of Stamford-Norwalk, Docket No. CV-09-5012285
(January 5, 2012, Adams, J.T.R.) (53 Conn. L. Rptr. 347,
350); Snell v. Norwalk Yellow Cab, Inc., Superior Court,
judicial district of Stamford-Norwalk, Docket No. CV-105013455-S (May 24, 2011, Jennings, J.T.R.) (52 Conn. L.
Rptr. 43, 47). Nonetheless, it is generally accepted that
“entrustment plainly means permitting another to do
something or to use something.” (Emphasis in original;
internal quotation marks omitted.) Bryda v. McLeod,
Superior Court, judicial district of New Haven at
Meriden, Docket No. CV-03-0285188-S (July 12, 2004,
Tanzer, J.) (37 Conn. L. Rptr. 492, 494); accord Czulewicz
v. Raymond, Superior Court, judicial district of
Stamford-Norwalk, Docket No. CV-89-0100248-S

 170a
(November 20, 1990, Cioffi, J.) (3 Conn. L. Rptr. 531,
532).
More specifically, the Superior Court has determined
that an entrustment can be considered negligent only if
(1) there is actual or constructive knowledge that the
entrustee is incompetent or has a dangerous propensity,
and (2) the injury resulted from that incompetence or
propensity. See, e.g., Arocho v. Simonelli, Superior
Court, judicial district of Stamford–Norwalk, Docket No.
CV-12-6013221–S (June 23, 2015, Adams, J.T.R.);
Kaminsky v. Scoopo, Superior Court, judicial district of
New Haven, Docket No. CV-08-6002084–S (July 30, 2008,
Bellis, J.) (46 Conn. L. Rptr. 82, 83). “Actual knowledge
is based on incompetency or a failure to appreciate some
visible or demonstrable impairment . . . whereas
constructive knowledge . . . is based on facts that are
openly apparent or readily discernible.” (Internal
quotation marks omitted.) Morillo v. Georges, Superior
Court, judicial district of Hartford, Docket No. CV-156058761–S (December 31, 2015, Peck, J.) (61 Conn. L.
Rptr. 541, 544).
Whether actual or constructive,
knowledge “is the essential element of a cause of action
for negligent entrustment.” Beale v. Martins, Superior
Court, judicial district of Waterbury, Docket No. CV-136020940–S (December 1, 2015, Brazzel–Massaro, J.) (61
Conn. L. Rptr. 389, 390) (“[w]ithout the key allegation of
knowledge, the plaintiff has not sufficiently pled a claim
for negligent entrustment”); see also Kaminsky v.
Scoopo, supra, 83.
Other states that base their negligent entrustment
doctrine on Section 390 of the Restatement (Second) of
Torts similarly focus on the element of foreseeability of

 171a
the entrustee’s misuse of the chattel. 13 For example, in
New York, 14 “[t]he tort of negligent entrustment is based
on the degree of knowledge the supplier of a chattel has
or should have concerning the entrustee’s propensity to
use the chattel in an improper or dangerous fashion.”
(Emphasis added.) Hamilton v. Beretta U.S.A. Corp., 96
N.Y.2d 222, 237, 750 N.E.2d 1055, 727 N.Y.S.2d 7, opinion
after certified question answered, 264 F.3d 21 (2d Cir.
2001); Al–Salihi v. Gander Mountain, Inc., United
States District Court, Docket No. 3:11–CV–00384 (NAM)
(N.D.N.Y. September 20, 2013) (concluding “that the
‘negligent entrustment’ exception does not apply”
because “there [was] simply no evidence demonstrating
that prior to the sales of the [weapons at issue],
[defendant] knew or should have known that [entrustee]
posed an unreasonable risk of harm to himself or
others”); see also Gummo v. Ward, 57 F.Sup.3d 871, 87677 (M.D.Tenn. 2014) (“[t]he focus of the tort of negligent
entrustment is the degree of knowledge the supplier of
the chattel has or should have concerning the entrustee’s
propensity to use the chattel in an improper or
dangerous fashion” [internal quotation marks omitted]);15
McGuiness v. Brink’s, Inc., 60 F.Sup.2d 496, 500 (D.Md.
1999) (“The cause of action for negligent entrustment is
Negligent entrustment is a common-law tort. Ellis v. Jarmin,
Superior Court, judicial district of New London, Docket No. CV-095010839 (December 17, 2009, Cosgrove, J.) (49 Conn. L. Rptr. 1, 3
n.2). In the context of a common-law claim, courts may look outside
of their own jurisdiction for guidance. State v. Courchesne, 296
Conn. 622, 680-81 n.39, 998 A.2d 1(2010).
14
“Under New York law, a claim for negligent entrustment of a
dangerous instrumentality is based on the Restatement (Second) of
Torts § 390 . . .” Breitkopf v. Gentile, 41 F.Sup.3d 220, 274 (E.D.N.Y.
2014).
15
“Tennessee recognizes the tort of negligent entrustment as found
in section 390 of the Restatement of Torts.” Id., 876.
13

 172a
based on the requisite knowledge of the supplier of the
chattel. If the supplier knows or should know of the
entrustee’s propensities to use the chattel in an improper
or dangerous manner, the entrustor owes a duty to
foreseeable parties to withhold the chattel from the
entrustee.” [Internal quotation marks omitted.]) 16
Within Connecticut and other Restatement states,
two general lines of negligent entrustment cases have
emerged. The first line of cases involves the entrustment
of an automobile to an incompetent driver, who then
drives the vehicle in a dangerous way and injures
another. In the automobile context, it has been stated
that “Connecticut law is clear that liability can only be
imposed if the defendant entrusts the vehicle to the
driver.” Angione v. Bloom, Superior Court, judicial
district of Stamford–Norwalk, Docket No. CV-085006850–S (October 6, 2011, Jennings, J.T.R.). The
plaintiffs have cited a handful of cases, including two
Superior Court decisions, that call this principle into
question and seemingly recognize liability via more
attenuated entrustments. In Delprete v. Senibaldi,
Superior Court, judicial district of New Haven, Docket
No. CV-11-6024795–S (September 16, 2014, Wilson, J.),
the plaintiff asserted a negligent entrustment claim
against the defendant Enterprise. Enterprise owned a
vehicle that it leased to Tresor Kapila, another
defendant, who then allowed Dina Senibaldi, a third
defendant, to operate the vehicle. Senibaldi collided with
the motor vehicle in which the plaintiff’s decedent was a
passenger. As is relevant to the present case, the
plaintiff alleged “that the defendant Enterprise ‘knew or
Maryland has adopted the doctrine of negligent entrustment as
stated in Section 390 of the Restatement (Second) of Torts.
Broadwater v. Dorsey, 344 Md. 548, 554, 688 A.2d 436 (1997).

16

 173a
should have known that the lessee was renting the
vehicle for an unqualified and/or unlicensed operator,’
namely . . . Senibaldi . . . Thus, there [was] an issue of
whether the defendant Enterprise may be liable under a
theory of negligent entrustment of a vehicle to a lessee
who was not operating the vehicle during the accident
and whether liability may be imposed when the entrusted
vehicle was being operated by a non-lessee individual.”
Id. Relying on two other Superior Court decisions that
addressed a similar issue, the court concluded that the
legal sufficiency of the plaintiff’s claim hinged upon
whether the plaintiff had pleaded that “it was foreseeable
at the time of the rental that Kapila would give a nonlessee permission to drive the car.” Id. Delprete relies
explicitly on Galloway v. Thomas, Superior Court,
judicial district of New Haven, Docket No. CV-950371814–S (September 26, 1995, Corradino, J.) (15 Conn.
L. Rptr. 143), which is the second Superior Court
decision to which the plaintiffs in the present case cite.
In Galloway, the court held that “[t]he missing link in the
plaintiffs [negligent entrustment] theory of recovery
[was] . . . the failure to allege [that the entrustor] knew or
should have known [that the entrustee] would permit
another to drive the car.” Id., 144. Although the
plaintiffs are correct that the requirements of negligent
entrustment may be satisfied under more attenuated
circumstances, there remains the requirement that the
original entrustor have knowledge of the entrustee’s
propensities that caused harm to the plaintiffs.
Other cases further support the conclusion that
negligent entrustment claims must fail if the defendant
lacked knowledge of the entrustee’s propensities. A case
relied on by the plaintiffs, LeClaire v. Commercial
Siding & Maintenance Co., 308 Ark. 580, 826 S.W.2d 247
(1992), is one such case. In LeClaire, “[t]he complaint

 174a
alleged that [the defendant] Commercial owned the
vehicle in which LeClaire was a passenger when the
injury occurred. Commercial had entrusted the vehicle
to its employee, Garcia, who became intoxicated and
further entrusted the vehicle to another person . . . It
was further alleged that . . . prior to entrusting Garcia
with the vehicle [Commercial] knew, or should have
investigated and learned, that Garcia ‘frequently became
intoxicated’ and had moving traffic violations.” Id., 58182. The court stated: “The real rub in this case is the
fact that it involves two entrustments. That is not a bar
to recovery . . . Other jurisdictions have recognized that
an original entrustor may be liable for negligence in
entrusting a chattel to one who further entrusts it,
resulting in injury.” Id., 583. Although the defendant
attempted to distinguish its case on the ground that, in a
seemingly analogous case, “the ultimate entrustee was in
the vehicle with the knowledge or consent of the original
entrustor when the vehicle was entrusted to the first
entrustee . . . [the court] faile[d] to see how knowledge of,
consent to, or even approval by the original entrustor of
the presence of the person to whom the chattel is
ultimately entrusted ma[de] a difference if liability of the
original entrustor is predicated upon negligence in
entrusting the chattel to the original entrustee.” Id. The
court paid particular attention to the issues of proximate
cause and foreseeability and “conclude[d] [that] the
complaint stated facts upon which relief could be granted
for negligent entrustment.” Id., 585. Thus, this case
supports the conclusion that the entrustor must have
knowledge of the original entrustee’s propensities to
misuse the chattel in order to prevail on a claim for
negligent entrustment.
These principles are not limited to automobile cases.
The second line of negligent entrustment decisions

 175a
involves the entrustment of something other than a
vehicle in a “[circumstance] where an entrustor should
know that there is cause why a chattel ought not to be
entrusted to another.” Short v. Ross, supra, 55 Conn. L.
Rptr. 668, 672; see, e.g., Bernard v. Baitch, Superior
Court, judicial district of Stamford–Norwalk, Docket No.
CV-09-5013017–S (March 22, 2011, Jennings, Jr., J.T.R.)
(51 Conn. L. Rptr. 604, 607-08) (allegations that parents
supplied son with medications and drugs knowing son
“had threatened and acted to harm himself in the past . . .
had been diagnosed and treated for mental illness . . . and
. . . was not taking [a specific drug] in accordance with his
prescription” formed legally sufficient negligent
entrustment claim). As they did in the automobile
context, the plaintiffs have identified a handful of cases
from outside of the automobile context that support
attaching liability for more remote entrustments.
Nevertheless, these cases similarly make clear that
negligent entrustment claims in this context also require
that the entrustor had knowledge of the original
entrustee’s propensities toward misuse of the chattel in
order for such a claim to succeed.
In Earsing v. Nelson, 212 A.D.2d 66, 629 N.Y.S.2d
690 (1995), the plaintiff, Earsing, “was injured when he
was hit by a BB shot from a gun that was manufactured
by defendant Daisy . . . and sold by defendant Service . . .
to defendant . . . Nowinski, a 13–year-old boy. After
purchasing the gun, Nowinski gave it to a 17–year-old
friend, defendant . . . Garvey, for safekeeping. [The]
[p]laintiffs allege[d] that Garvey accidentally shot . . .
Earsing with the BB gun, not knowing it was loaded at
the time.” Id., 69. On appeal, the “plaintiffs argue[d]
that they ha[d] stated causes of action against Daisy as
well as Service for negligent entrustment and illegal sale
of the air gun.” Id. The court explained: “The tort of

 176a
negligent entrustment is based on the degree of
knowledge the supplier of a chattel had or should have
had concerning the entrustee’s propensity to use the
chattel in an improper or dangerous fashion . . . If such
knowledge can be imputed, the supplier owes a duty to
foreseeable parties to withhold the chattel from the
entrustee . . . Gun sales to children have been included in
that category . . . There is no authority, however, to
extend liability on this theory against Daisy, the
manufacturer of the air gun . . . and thus the [lower]
court properly dismissed that cause of action against it.”
Id., 70.
The New York Court of Appeals considered a
similarly remote entrustment scenario in Rios v. Smith,
95 N.Y.2d 647, 744 N.E.2d 1156, 722 N.Y.S.2d 220 (2001).
In Rios, the plaintiff was injured in an ATV accident that
occurred while the plaintiff, her younger sister, and the
defendants Frank Smith, Jr., and Theodore Persico, Jr.
(Persico, Jr.)—all teenagers—were staying at a
residence located on a farm owned by the defendant
Alphonse Persico (Persico). Id, 650. Persico owned at
least two ATVs and kept them at this residence. Id. “On
the day of the accident, Persico was not present at the
farm. Persico, Jr. and Smith, each operating an ATV,
asked [the] plaintiff and her sister to go for a ride on the
vehicles. When the young women consented, [the]
plaintiff climbed aboard the ATV driven by Smith and
her sister rode with Persico, Jr. At some point during
the excursion, the operators rode the vehicles onto a
blacktop pathway that was lined with trees, and
proceeded to perform ‘wheelies,’ lifting the front wheel of
the vehicle off the ground. As the young men then began
to race, Smith drove the ATV he was operating off the
pathway and up a grassy incline. [The] [p]laintiff
suffered serious injuries when the vehicle hit a tree,

 177a
causing her to be thrown against the tree trunk, with the
ATV coming to rest on top of her.” Id. The plaintiff
asserted, among other claims, a negligent entrustment
cause of action against Persico. Id. The court first
discussed parental liability for negligent entrustment and
held that “a parent owes a duty to protect third parties
from harm that is clearly foreseeable from the child’s
improvident use or operation of a dangerous instrument,
where such use is found to be subject to the parent’s
control.” Id., 653. Reviewing the evidence, the court
found that “Persico could have clearly foreseen that his
son’s access to and use of the ATVs could involve riding
one of the vehicles while lending the other to a friend and
that such use might expose passengers on the ATVs to
injury. Thus, the evidence was legally sufficient for the
jury to determine that Persico created an unreasonable
risk of harm to plaintiff by negligently entrusting the
ATVs to his son, whose use of the vehicles involved
lending one of the ATVs to Smith, another minor.” Id.
Finally, in Collins v. Arkansas Cement Co., 453 F.2d
512 (8th Cir. 1972), the court considered whether there
was sufficient evidence to sustain a theory of negligent
entrustment against an employer who had entrusted
cherry bombs to an employee who then gave cherry
bombs to children who subsequently passed them along
to a minor who was injured when they exploded. The
court stated: “While the proof must show that the
entrustor knew or should have known of the entrustee’s
propensities, the notice . . . that employees were not
faithful in returning the unused cherry bombs or were
using them in horseplay around the plant was sufficient
evidence of misuse, which when coupled with the lax
control exercised over their use and the return of unused
bombs, was sufficient to make a submissible case . . .
Having reason to know of the misuse to which the cherry

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bombs were being put and the possible tragic results
upon such instrumentalities coming into the hands of
children, especially those of a tender age, the injury here
was clearly foreseeable and was proximately caused by
the negligent entrustment.” (Footnote omitted.) Id., 515.
In the present case, the court agrees with the
plaintiffs that the theory of common-law negligent
entrustment rests on the foreseeability of the likelihood
of misuse of the chattel. Nevertheless, regardless of
whether a direct entrustee or a third person ultimately
causes the injury, the dispositive issue is whether the
entrustor knows or should know of the direct entrustee’s
incompetence. See LeClaire v. Commercial Siding &
Maintenance Co., supra, 308 Ark. 580 (negligence of
initial entrustment dispositive). This incompetence can
arise from trusting a chattel to someone else in a
situation in which such entrustment is improper or
constitutes misuse. See, e.g., Delprete v. Senibaldi,
supra, Superior Court, Docket No. CV-11-6024795–S
(giving nonlessee permission to drive car could constitute
misuse and, if foreseeable, render renter incompetent);
Galloway v. Thomas, supra, 15 Conn. L. Rptr. 143
(same); Earsing v. Nelson, supra, 212 A.D.2d 66
(entrusting gun to child is negligent because children as a
class are deemed incompetent to handle guns and will
therefore foreseeably misuse them in unspecified ways);
Rios v. Smith, supra, 95 N.Y.2d 647 (teenager’s lending
ATV to someone else constitutes misuse and, if
foreseeable, renders teenager incompetent); Collins v.
Arkansas Cement Co., supra, 453 F.2d 512 (negligent to
entrust cherry bombs to employees who misuse them by
regularly not returning them or using them in

 179a
horseplay). 17 If the element of foreseeability with regard
to the direct entrustee’s misuse is lacking, the negligent
entrustment claim must fail.
The court recognizes that there is a fundamental
disagreement among the parties regarding the nature of
the plaintiffs’ allegations. The defendants characterize
the complaint as alleging successive entrustments.
Accordingly, the defendants’ arguments address the
entrustments from the Remington defendants to the
Camfour defendants, from the Camfour defendants to
the Riverview defendants, and from the Riverview
defendants to Nancy Lanza. Under this scenario, the
successive entrustees are the Camfour defendants, the
Riverview defendants, and Nancy Lanza, and it is their
propensities and purported “uses,” putting the firearm in
inventory and selling it, keeping the firearm on a shelf
and then making it available to a law-abiding, approved
buyer, and storing it in a home, respectively, that are at
issue.
The plaintiffs, on the other hand, have explicitly
stated that their claims are not dependent on these
parties’ propensities; instead, the plaintiffs argue, “in a
top-down case like this [the court looks] to the
propensities of a class of individuals and the environment
in which those individuals are likely to use [the
instrument].” In other words, the plaintiffs suggest that a
claim of negligent entrustment can be sufficiently alleged

The New York Court of Appeals has specifically stated: “The
owner or possessor of a dangerous instrument is under a duty to
entrust it to a responsible person whose use does not create an
unreasonable risk of harm to others . . . The duty may extend
through successive, reasonably anticipated entrustees . . .” (Citations
omitted.) Hamilton v. Beretta U.S.A. Corp., supra, 96 N.Y.2d 23637.
17

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where the chattel will ultimately reach individuals who
are likely to misuse it.
Regardless of which characterization the court
adopts, based on the case law set forth above, in order to
allege a legally sufficient negligent entrustment claim,
the plaintiffs must allege that each entrustment was
initially negligent. In other words, the plaintiffs must
identify what foreseeable misuse rendered the initial
entrustees incompetent. In the operative complaint, the
plaintiffs have alleged the following relevant facts: The
defendants knew or had reason to know that their
respective entrustees were engaging in substantial sales
of military caliber AR-15s, meant for specialized, highly
regulated institutions, such as the armed forces and law
enforcement, to the civilian market on a consistent basis
and that such sales would give individuals who are unfit
to operate the weapons access to them. Complaint, ¶¶ 9,
12. This, the defendants knew or should have known,
posed an unreasonable and egregious risk of physical
injury. Complaint, ¶ 213. Finally, each defendant knew,
or should have known, that their respective entrustee’s
use of the product involved an unreasonable risk of
physical injury to others. Complaint, ¶¶ 224, 225.
Despite this knowledge, the plaintiffs allege, by
transferring the XM15–E2S to each entrustee, the
defendants continued to entrust the XM15–E2S to the
civilian population. Complaint, ¶¶ 171, 172, 176, 177, 178,
182. Accordingly, the plaintiffs allege, selling to the
civilian market is a misuse that renders each entrustment
tortious.
As discussed further below, this court concludes that
such sales do not constitute misuse as a matter of law.
The court does not agree with the plaintiffs’ assertion
that the common law recognizes a class as broad as
civilians to support a claim for negligent entrustment. In

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McCarthy v. Sturm, Ruger & Co., 916 F.Sup. 366, 369
(S.D.N.Y. 1996), aff’d sub nom., McCarthy v. Olin Corp.,
119 F.3d 148 (2d Cir. 1997), in a situation that is closely
analogous to the present case, Judge Baer addressed a
similar issue directly. The McCarthy plaintiffs “[sought]
to hold [the] defendant Olin Corporation liable based on
its design, manufacture, marketing and sale of ‘Black
Talon’ ammunition, which was allegedly used by [Colin
Ferguson in a murderous shooting spree on a Long
Island Railroad passenger train].
Black Talon
ammunition incorporates a hollow-point bullet that is
designed to expand upon impact exposing razor-sharp
edges at a 90-degree angle to the bullet. This expansion
dramatically increases the wounding power of the
bullets.” Id., 368. Among other things, the plaintiffs
alleged that Olin Corporation “was negligent in
marketing the Black Talon ammunition to the general
public . . . [The] [p]laintiffs argue[d] that sales of the
ammunition should have been limited to law enforcement
agencies, as was allegedly Olin’s original plan.” (Citation
omitted.) Id., 369. More specifically, “[the] plaintiffs
argue[d] that marketing Black Talon ammunition to the
general public breached a duty flowing from
manufacturers to those affected by use of the
ammunition.” Id., 370. Although the plaintiffs did not
explicitly raise a negligent entrustment claim, the court
explained: “Restatement (Second) § 390 . . . limits the
negligent entrustment theory to those people a
reasonable person would consider lacking in ordinary
prudence. To extend this theory to the general public
would be a dramatic change in tort doctrine. It would
imply that the general public lacks ordinary prudence
and thus undermine the reasonable person concept so
central to tort law. The common law has not yet adopted

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a negligent entrustment rule for the protection of the
general public. I decline to adopt one here.” Id.
Even narrower classes of persons have been rejected
for purposes of negligent entrustment claims. For
example, in 2008, the United States District Court for the
Southern District of New York in Adeyinka v. Yankee
Fiber Control, Inc., 564 F.Sup.2d 265 (S.D.N.Y. 2008),
applied the McCarthy analysis to resolve whether any
reasonable jury could conclude that the defendant was
liable for negligent entrustment of an “ultra high
pressure water jetting system.” Id., 268, 288. The jet
was manufactured by Aqua–Dyne, bought from Aqua–
Dyne by Yankee Fiber, and leased from Yankee Fiber by
the New York City Housing Authority (NYCHA). Id.,
267. The plaintiff was hired by NYCHA to perform lead
abatement work and was injured while using the water
jet to remove lead paint from the walls of a building at a
work site. Id., 270. The plaintiff brought multiple causes
of action against the defendants, including a negligent
entrustment claim against Yankee Fiber. Id., 267.
Specifically, the “[p]laintiff allege[d] that Yankee Fiber
[was] liable for ‘negligent entrustment’ because it
permitted [the] plaintiff to use the water jet when
Yankee Fiber’s employees knew plaintiff was likely,
‘because of inexperience, to use [the water jet] in an
unsafe manner . . . Yankee Fiber assert[ed] that it did
not have reason to believe [the] plaintiff, or any other
NYCHA employees, were likely to use the water jet in an
unsafe manner.” (Citation omitted.) Id., 286.
The court analogized the case before it to McCarthy
and stated, “in this case, [the] plaintiff argues that, while
Yankee Fiber did not owe [the] plaintiff a ‘special duty,’ it
owed a duty ‘to everyone who was operating this
machine’ to ensure that they were sufficiently
‘experienced’ so as to operate the water jet in a

 183a
reasonably safe manner . . . The Court rejects this
argument as inconsistent with well-settled authority
regarding the tort of negligent entrustment. As Judge
Baer noted in McCarthy, courts have not construed the
tort as imposing a duty on defendants to examine the
competence of ‘the general public’ to whom they market
or lease products . . . Rather, it is well settled that the
tort applies solely where the defendant had knowledge or
reason to know that the user of the item at issue was
someone that ‘a reasonable person would consider
lacking in ordinary prudence.’” Id., 287 “Therefore,
given the lack of case law supporting [the] plaintiff s
broad construction of the tort and the absence of
evidence indicating that Yankee Fiber knew or had
reason to know of a characteristic or condition ‘peculiar
to plaintiff indicating that he was ‘lacking in ordinary
prudence’ . . . the Court [found] that no reasonable jury
could conclude that Yankee Fiber [was] liable for
negligent entrustment.” (Citation omitted.) Id., 288.
In the present case, the plaintiffs allege that the
defendants’ entrustment of the firearm to respective
entrustees was negligent because the defendants could
each foresee the firearm ending up in the hands of
members of an incompetent class in a dangerous
environment. The validity of this argument rests on
labeling as a misuse the sale of a legal product to a
population that is lawfully entitled to purchase such a
product. Based on the reasoning from McCarthy, and
the fact that Congress has deemed the civilian population
competent to possess the product that is at issue in this
case, this argument is unavailing. To extend the theory
of negligent entrustment to the class of nonmilitary,
nonpolice civilians—the general public—would imply that
the general public lacks the ordinary prudence necessary
to handle an object that Congress regards as appropriate

 184a
for sale to the general public. 18 This the court is unwilling
to do.
Accordingly, because they do not constitute legally
sufficient negligent entrustment claims pursuant to state
law, the plaintiffs’ negligent entrustment allegations do
not satisfy the negligent entrustment exception to
PLCAA. 19 herefore, unless another PLCAA exception
applies, the court must grant the defendants’ motions to
strike.
2
Negligent Entrustment Pursuant to PLCAA
In light of this court’s conclusion above that the
plaintiffs’ negligent entrustment allegations are legally
insufficient under Connecticut’s common law, it is not
necessary for this court to consider whether those claims
meet the narrower definition of such claims set forth in
PLCAA. Nevertheless, in the interest of thoroughness,
and to provide an alternative basis for this court’s
decision with regard to the legal sufficiency of the
plaintiffs’ negligent entrustment claims, the court will
also consider whether the plaintiffs’ claims satisfy the
In their reply brief, the Remington defendants contend that the
plaintiffs’ argument is based on designating the class of adult civilian
residents of Connecticut who are legally able to purchase and own
the firearm at issue as incompetent. “The entire frame-work of
Plaintiffs’ argument has no basis in the law and if accepted, would
turn the separation of powers between the branches of government
on its head.” They continue: “If an entirely new ‘class’ of persons is
to be declared ineligible to own firearms . . . the legislature is bestsuited to make [that] policy [decision] . . .”
19
With regard to count thirty-two, the Camfour defendants also
argue that Hammond’s claim for negligent entrustment is barred by
the three-year statute of limitations contained in General Statutes §
52-584. The plaintiff’s did not respond to this argument and the
court does not reach it.
18

 185a
narrower definition of negligent entrustment under
PLCAA.
As is stated above, based on basic tenets of statutory
construction, the court finds that no part of PLCAA,
including the definition of “negligent entrustment,” is
superfluous.
Again, PLCAA specifically defines
“negligent entrustment” as “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.” 15 U.S.C.
§ 7903(5)(B) (2012). As this statutory definition of
negligent entrustment claims is narrower than the
common-law definition discussed above, the plaintiffs’
negligent entrustment claims must satisfy the statutory
definition as well in order to fit the negligent entrustment
exception to immunity set forth in PLCAA.
a
Seller
Unlike the definition of negligent entrustment set
forth in the Restatement, PLCAA’s definition of
negligent entrustment applies only to entrustment by “a
seller” of a qualified product. The Remington defendants
argue that the plaintiffs have not sufficiently alleged that
the Remington defendants qualify as “sellers” within the
definition of PLCAA. The plaintiffs disagree. In
relevant part, PLCAA defines a “seller” as “a dealer (as
defined in section 921(a)(11) of Title 18) who is engaged
in the business as such a dealer in interstate or foreign
commerce and who is licensed to engage in business as
such a dealer under chapter 44 of Title 18 . . .” 15 U.S.C.
§ 7903(6)(A) (2012). “The term ‘engaged in the business’
has the meaning given that term in section 921(a)(21) of

 186a
Title 18, and, as applied to a seller of ammunition, means
a person who devotes time, attention, and labor to the
sale of ammunition as a regular course of trade or
business with the principal objective of livelihood and
profit through the sale or distribution of ammunition.” 15
U.S.C. § 7903(1) (2012).
Section 921(a)(11) of title 18 of the United States
Code defines a dealer, in relevant part, as “any person
engaged in the business of selling firearms at wholesale
or retail . . .” According to subsection (a)(21) of the same
section, the term “engaged in business” means, “as
applied to a dealer in firearms . . . a person who devotes
time, attention, and labor to dealing in firearms as a
regular course of trade or business with the principal
objective of livelihood and profit through the repetitive
purchase and resale of firearms, but such term shall not
include a person who makes occasional sales, exchanges,
or purchases of firearms for the enhancement of a
personal collection or for a hobby, or who sells all or part
of his personal collection of firearms . . .”
Consistent with the standard applicable to motions to
strike, the following facts are taken from the complaint
and accepted as true for purposes of this motion.
“Defendants know that, as a consequence of selling AR15s to the civilian market, individuals unfit to operate
these weapons gain access to them.” Complaint, ¶ 9.
“Despite . . . knowledge [about the AR-15] defendants
continue to sell the Bushmaster XM15–E2S to the
civilian market.” Complaint, ¶ 11. “In order to continue
profiting from the sale of AR-15s, defendants chose to
disregard the unreasonable risks the Bushmaster XM15–
E2S posed . . .” Complaint, ¶ 12. “At all relevant times,
Bushmaster Firearms manufactured and sold AR-15s.”
Complaint, ¶ 14.
“Upon information and belief,
Bushmaster Firearms, Inc. manufactured and sold AR-

 187a
15s.”
Complaint, ¶ 15.
“At all relevant times,
Bushmaster Firearms International, LLC manufactured
and sold AR-15s.” Complaint, ¶ 17. “At all relevant
times, Remington Arms Company, LLC manufactured
and sold AR-15s.” Complaint, ¶ 19. “Freedom Group,
Inc. is one of the world’s largest manufacturers and
dealers in firearms, ammunition, and related
accessories.” Complaint, ¶ 21. “Upon information and
belief, from 2006 on, Freedom Group, Inc. controlled,
marketed and sold the Bushmaster brand.
Upon
information and belief, during this time period Freedom
Group, Inc. sold Bushmaster brand products directly to
retail stores.” Complaint, ¶ 22. “Remington Outdoor
Company, Inc. . . . is engaged in the business of
manufacturing and selling AR-15s.” Complaint, ¶ 23.
These named defendants “are functionally one entity . . .”
Complaint, ¶ 24. These defendants “manufacture and sell
firearms and ammunition . . .” Complaint, ¶¶ 25. One or
more of these defendants “manufactured and sold the
Bushmaster XM15 –E2S rifle that was used in the
shooting at Sandy Hook Elementary School on
December 14, 2012.” Complaint, ¶ 26. “Bushmaster . . .
[is] the largest supplier of combat rifles [including the
XM15–E2S] to civilians.” Complaint, ¶¶ 54, 55. The
Bushmaster defendants market the AR-15 rifle.
Complaint ¶¶ 75-92, 174-75.
“The Bushmaster
defendants . . . [sell] directly to Wal-Mart, Dick’s
Sporting Goods, and other prominent chain retail stores.”
Complaint, ¶ 172. “The Bushmaster defendants, as those
who deal in firearms, are required to exercise the closest
attention and the most careful precautions in the conduct
of their business.” Complaint, ¶ 221.
To qualify as a seller, a dealer: (1) must devote time,
attention, and labor to dealing in firearms as a regular
course of trade or business with the principal objective of

 188a
livelihood and profit through the repetitive purchase and
resale of firearms; and (2) must be licensed to engage in
business as such a dealer under chapter 44 of title 18.
Taking all well-pleaded facts and those facts necessarily
implied from the allegations as admitted, and construing
the complaint broadly and realistically, the court finds
that the plaintiffs have sufficiently alleged that the
Remington defendants qualify as sellers as defined by
PLCAA. As to the first requirement, the court finds that
the plaintiffs have explicitly alleged that the Remington
defendants sell and deal firearms to civilians and retail
stores and that the Remington defendants devote labor
to marketing, promoting, and selling the firearms with
the objective of profit. As to the second requirement,
although the plaintiffs have not explicitly alleged that the
Remington defendants are licensed to engage in business
as a dealer under chapter 44 of title 18, this fact is
necessarily implied from the allegations.
Under
subsection (a) of that chapter, “[n]o person shall engage
in the business of importing, manufacturing, or dealing in
firearms, or importing or manufacturing ammunition,
until he has filed an application with and received a
license to do so from the Attorney General.” That the
Remington defendants are allegedly one of the world’s
largest firearms manufacturers and dealers necessarily
implies that they are licensed to manufacture and deal.20
Furthermore, the basis of the Remington defendants’ argument is
that they are manufacturers, not sellers. PLCAA specifically defines
the term “manufacturer” as “a person who is engaged in the
business of manufacturing the product in interstate or foreign
commerce and who is licensed to engage in business as such a
manufacturer under chapter 44 of title 18.” 15 U.S.C. § 7903(2)
(2012). Although the Remington defendants argue that the plaintiffs’
failure to allege that the Remington defendants are licensed as a
dealer is fatal, they ignore the fact that the plaintiffs similarly have
20

 189a
Accordingly, taking all well-pleaded facts and those facts
necessarily implied from the allegations as admitted, and
construing the complaint broadly and realistically, the
court finds that the plaintiffs have sufficiently alleged
that the Remington defendants qualify as sellers as
defined by PLCAA.
b
Actionable Use
The defendants essentially put forth two arguments:
(1) they cannot be held liable for the actions of anyone
other than their respective immediate entrustees (the
Camfour defendants, the Riverview defendants, Nancy
Lanza), and (2) the plaintiffs have not alleged that any of
the immediate entrustees “used” the product in
accordance with the PLCAA definition of negligent
entrustment. 21 They argue for a narrow definition of the
term “use” in light of the context in which the term is
utilized and the overall purpose of PLCAA. Although
they do not provide a specific definition of the term, the
defendants contend that “use” cannot include a legal
transaction. The plaintiffs counter that the PLCAA
definition of negligent entrustment codifies the essential
elements of the Restatement definition and, thus, permits
actions that satisfy the common-law elements of
negligent entrustment. They argue in favor of a broad
definition of the term “use” in accordance with its plain

not explicitly stated that the Remington defendants are licensed as a
manufacturer.
21
The Riverview defendants also assert a foreseeability argument,
namely that, because they did not supply the product to Adam
Lanza, they could not foresee that the product would be used in a
manner involving an unreasonable risk of physical injury to Adam
Lanza or others. The court finds that this argument is encompassed
by the defendants’ first argument.

 190a
meaning, statutory context, and common-law roots and
assert that selling a weapon can constitute a “use.”
Fundamentally, the parties’ arguments depend on the
meanings of the terms “negligent entrustment” and
“use” as utilized in PLCAA. To resolve these questions,
the court must engage in statutory interpretation. “With
respect to the construction and application of federal
statutes, principles of comity and consistency require us
to follow the plain meaning rule . . . because that is the
rule of construction utilized by the United States Court
of Appeals for the Second Circuit . . . Moreover, it is well
settled that [t]he decisions of the Second Circuit Court of
Appeals carry particularly persuasive weight in the
interpretation of federal statutes by Connecticut state
courts.” (Internal quotation marks omitted.) Rodriguez v.
Testa, 296 Conn. 1, 11, 993 A.2d 955 (2010).
According to the Second Circuit Court of Appeals,
“[w]hen construing a statute, [the court’s] fundamental
objective is to ascertain and give effect to the apparent
intent of the legislature.” New York v. Beretta U.S.A.
Corp., 524 F.3d 384, 401 (2d Cir. 2008), cert. denied, 556
U.S. 1104, 129 S.Ct. 1579, 173 L.Ed. 675 (2009).
“Statutory construction begins with the plain text and, if
that text is unambiguous, it usually ends there as well.”
United States v. Gayle, 342 F.3d 89, 92 (2d Cir. 2003), as
amended (January 7, 2004), cert. denied, 542 U.S. 925,
124 S.Ct. 2888, 159 L.Ed.2d 787 (2004), cert. denied, 544
U.S. 1026, 125 S.Ct. 1968, 161 L.Ed.2d 872 (2005). “The
text’s plain meaning can best be understood by looking to
the statutory scheme as a whole and placing the
particular provision within the context of that statute.”
(Internal quotation marks omitted.) Id., 93. “If, after
examining such text and considering such relationship,
the meaning of such text is plain and unambiguous and
does not yield absurd or unworkable results, extratextual

 191a
evidence of the meaning of the statute shall not be
considered . . . The test to determine ambiguity is
whether the statute, when read in context, is susceptible
to more than one reasonable interpretation.” New York v.
Beretta U.S.A. Corp., supra, 430.
The Second Circuit has not directly addressed the
contours of the PLCAA definition of “negligent
entrustment.” Therefore, the court begins with the plain
text. The plaintiffs argue that the PLCAA definition of
“negligent entrustment” mirrors the definition from §
390 of the Restatement. Comparing the two definitions,
it is clear that the PLCAA definition of “negligent
entrustment” omits the language from § 390 of the
Restatement which allows for liability arising from the
supplying of a chattel “through a third person.” This
distinction lends support to the defendants’ argument.
The meaning of the term “use” is not as clear.
Instead, it is susceptible to more than one reasonable
interpretation. The defendants argue for a narrow
reading of the term and limit its meaning to some action
beyond the mere selling of a firearm. Read in isolation,
there is no indication that Congress intended to so limit
the definition of the term. To the contrary, when
Congress intended to specifically limit a definition, it did
so by using more specific verbs such as “to sell”; 15
U.S.C. § 7903(5)(A)(iii)(II) (2012); to “otherwise dispose
of”; 15 U.S.C. § 7903(5)(A)(iii)(II) (2012); and to
“discharge.” 15 U.S.C. § 7903(5)(A)(v) (2012). The
plaintiffs argue for a broad reading of the term and place
no limit on its meaning. Considering its relationship to
the rest of PLCAA, to include “lawfully sell” within the
definition of “use” would yield absurd and unreasonable
results. Assuming that PLCAA only allows for claims
based on direct entrustment, this broad definition of use
would extend liability to a dealer who supplies a firearm

 192a
to a lawful distributor who legally sells it to an
incompetent buyer, and simultaneously forbid these
types of indirect negligent entrustment actions from
going forward. The definition of the term use, when read
in context, is therefore ambiguous. As the previous
sentence demonstrates, it also calls into question whether
PLCAA allows for attenuated entrustments.
“To resolve . . . textual ambiguity, [courts] may
consult legislative history and other tools of statutory
construction to discern Congress’s meaning . . . Resort to
authoritative legislative history may be justified where
there is an open question as to the meaning of a word or
phrase in a statute, or where a statute is silent on an
issue of fundamental importance to its correct
application. As a general matter, we may consider
reliable legislative history where . . . the statute is
susceptible to divergent understandings and, equally
important, where there exists authoritative legislative
history that assists in discerning what Congress actually
meant . . . The most enlightening source of legislative
history is generally a committee report, particularly a
conference committee report, which [the Second Circuit]
ha[s] identified as among the most authoritative and
reliable materials of legislative history.” (Citations
omitted; footnote omitted; internal quotation marks
omitted.) United States v. Gayle, supra, 342 F.3d 93-94.
As is discussed above, there is an open question as to
the meaning of the term “use” in PLCAA and the statute
is silent on this issue, which is fundamental to the correct
application of the “negligent entrustment” exception.
Therefore, the court may consider reliable legislative
history. In May 2001, H.R. 2037, the “Protection of
Lawful Commerce in Arms Act” was placed on the House
calendar. House Committee on the Judiciary Report
108-59, concerning House Bill No. 1036, entitled

 193a
“Protection of Lawful Commerce in Arms Act,” (April 7,
2003). As is memorialized in House Report 107-727,
Representative John Conyers, Jr., from Michigan voiced
his concern with the “negligent entrustment” exception.
He cautioned that “the bill irresponsibly protects dealers
who recklessly sell to gun traffickers knowing (or with
reason to know) that the trafficker intends to resell the
guns to criminals. This loophole is achieved as a result of
the bill’s narrow definition of ‘negligent entrustment.’
The bill defines ‘negligent entrustment’ to include only
initial transfers completed between the original seller
and purchaser of a gun. It does not include secondary
transfers even when the original seller is aware of the
purchaser’s intent to resell to a particular individual.”
House Committee on the Judiciary Report 107–727,
concerning House Bill No. 2037, entitled “Protection of
Lawful Commerce in Arms Act,” (October 8, 2002).
“Days after H.R. 2037 was placed on the House
calendar, the Washington, DC area was besieged by a
sniper(s) who indiscriminately gunned down innocent
victims with a high caliber rifle. In the aftermath of the
sniper shooting, no further action was taken on the bill . .
.” House Bill No. 1036. H.R. 2037 was the predecessor to
H.R. 1036. In 2003, the House of Representatives
Committee on the Judiciary issued a Report on H.R.
1036. Representative Conyers again expressed his
concerns, only changing the word “loophole” from his
previous statement to “exemption from liability.” House
Bill No. 1036. In the same report, dissenters expressed
the following policy concern with the bill: “Only in the
narrow class of cases enumerated in Section 4 of the bill
(e.g., when a dealer knowingly transferred a gun to
someone despite knowing it would be used to commit a
crime of violence or a drug trafficking crime, or when the
dealer negligently entrusted the gun to a shooter, or a

 194a
plaintiff files a negligence per se case) would plaintiffs be
permitted to seek relief for their foreseeable injuries.”
House Bill No. 1036. Later, in a section entitled “The
Narrow Exceptions in H.R. 1036 Will Not Protect Most
Victims of Gun Industry Negligence,” the dissenters
articulated their concerns regarding the negligent
entrustment exception more particularly. They pointed
out that the exception “would cover only cases where the
dealer knows or should know that the person who is
buying the gun is likely to misuse it and the buyer does,
in fact, misuse it. [T]his would still shut the courthouse
door to victims of the far more common practice of
dealers negligently selling guns to traffickers who, in
turn, supply criminals . . . Under [the negligent
entrustment] exception, not only would the previouslymentioned Byrdsong 22 case be barred, but the bill would
deny relief to . . . former New Jersey police officer
Lemongello and his partner, who were shot with a
handgun sold as part of a 12–handgun sale by a West
Virginia dealer to a ‘straw buyer’ for a gun trafficker.
Even though the dealer who irresponsibly supplied the
gun trafficker with multiple guns should have known the
guns would be sold to and used by criminals, they
arguably did not ‘negligently entrust’ the guns since the
persons to whom they sold the guns were not the
shooters.” House Bill No. 1036.
In 2005, the Protection of Lawful Commerce in Arms
Act was again called up on the floor of the House. As it
had years earlier, PLCAA, now labeled H.R. 800,
“Mr. Byrdsong was walking with his children in Skokie, Illinois
when he was shot and killed with one of 72 guns sold to an Illinois
gun trafficker by a dealer over a period of a year and a half. The
dealer clearly should have known that the trafficker did not need 72
guns for his own use, but intended to sell them to criminals.” House
Bill No. 1036.
22

 195a
generated cautionary views. Representative Conyers
again argued against the bill. He stated: “Here we are
today, April 20th on the 6th anniversary of the
Columbine shootings, considering a bill that would
eliminate the liability of those in the gun industry for
marketing to criminals . . . Section 4 of the bill [which
was enacted as 15 U.S.C. § 7903] specifically protects gun
manufacturers and sellers from liability, even when they
produce and distribute weapons that expose unassuming
purchasers to unreasonable risks of harm. In addition,
the bill protects dealers who recklessly sell to gun
traffickers knowing that the trafficker intended to resell
the guns to criminals . . . So we’ve finally gone over the
top. Congratulations, Committee on the Judiciary. This
is quite a way to mark the sixth anniversary of the
Columbine shootings in this country.” House Committee
on the Judiciary Report 109¬124, concerning House Bill
No. 800, entitled “Protection of Lawful. Commerce in
Arms Act,” (June 14, 2005). As to the “negligent
entrustment” exception specifically, the dissenters
argued that the section, as written, would protect “the
dealer who irresponsibly supplied the gun trafficker with
multiple guns [and who] should have known the guns
would be sold to and used by criminals, [because] they
arguably did not ‘negligently entrust’ the guns since the
persons to whom they sold the guns did not commit the
underlying criminal acts.” House Bill No. 800.
Despite these concerns, and aware that the only
actionable entrustment is from a seller to a buyer who
then engages in a criminal act, Congress did not
substantively amend PLCAA or the negligent
entrustment exception. These comments now serve to
highlight PLCAA’s narrow definition of the term
“negligent entrustment.” Clearly, although foreseeability
is the essential element to the common-law tort, the same

 196a
is not true for the PLCAA definition. In the postColumbine world, cognizant of the environment in which
gun sales occur and undeniably aware of the
consequences of narrowly interpreting PLCAA
exceptions,
Congress
contemplated
negligent
entrustment to include only direct entrustments to a
shooter, regardless of what an entrustor knew or should
have known.
In the present case, the plaintiffs have alleged that
the Remington defendants sold the firearm to the
Camfour defendants, that the Camfour defendants sold
the firearm to the Riverview defendants, and that the
Riverview defendants sold the gun to Nancy Lanza. In
addition, it is alleged that Adam Lanza was the individual
who actually fired the weapon. Based on the clear intent
of Congress to narrowly define the “negligent
entrustment” exception, Adam Lanza’s use of the firearm
is the only actionable use. Accordingly, the plaintiffs
have not alleged that any of the defendants’ entrustees
“used” the firearm within the confines of PLCAA’s
definition of the term. To the contrary, the plaintiffs
have alleged facts that place them directly in the
category of victims to which Congress knowingly denied
relief.
For these reasons, in addition to the reasons set forth
in the preceding section discussing state law, the
plaintiffs’ allegations against all three defendant groups
do not satisfy the negligent entrustment exception to
PLCAA.
B
Predicate Exception to PLCAA
The other exception to PLCAA immunity upon which
the plaintiffs rely is set forth in 15 U.S.C. §
7903(5)(A)(iii), which permits a plaintiff to bring “an

 197a
action in which a manufacturer or seller of a qualified
product knowingly violated a State or Federal statute
applicable to the sale or marketing of the product, and
the violation was a proximate cause of the harm for which
relief is sought . . .” The parties refer to this as the
predicate exception. The defendants argue that the
amended complaint should be stricken because the
plaintiffs’ CUTPA claims are not legally sufficient to
satisfy the predicate exception to PLCAA immunity
under 15 U.S.C. § 7903(5)(A)(iii). More specifically, the
defendants contend that CUTPA does not qualify as a
predicate statute pursuant to 15 U.S.C. § 7903(5)(A)(iii)
and that, even if it does qualify as such, the plaintiffs’
CUTPA claims are legally insufficient because (a) the
plaintiffs are not consumers, competitors, or other
business persons with a commercial relationship to the
defendants, (b) the plaintiffs have not alleged the type of
financial injury that CUTPA was enacted to redress, (c)
they are barred by CUTPA’s three-year statute of
limitations, (d) they are foreclosed by General Statutes §
52-572n, 23 the exclusivity provision of the Connecticut
Product Liability Act (CPLA), and (e) they are barred by
General Statutes § 42-110c(a), 24 an exemption provision.

“The exclusivity provision of the product liability act provides: ‘A
product liability claim . . . 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.’ General
Statutes § 52-572n(a).” (Footnotes omitted.) Gerrity v. R.J. Reynolds
Tobacco Co., 263 Conn. 120, 125-26,818 A.2d 769 (2003).
24
General Statutes § 42-110c(a), a subsection of CUTPA, provides in
relevant part: “Nothing in this chapter shall apply to: (1)
Transactions or actions otherwise permitted under law as
administered by any regulatory board or officer acting under
statutory authority of the state or of the United States . . .”
23

 198a
1
CUTPA as a Predicate Statute
The defendants first argue that CUTPA does not
qualify as a predicate statute pursuant to 15 U.S.C. §
7903(5)(A)(iii) under the plain meaning of PLCAA’s text
and guiding precedent, because the plaintiffs interpret
that exception too broadly in contending that CUTPA
has been applied to or “clearly can be said to implicate”
the “sale or marketing” of firearms. In response, the
plaintiffs argue that the decision of the Court of Appeals
for the Second Circuit in New York v. Beretta U.S.A.
Corp., supra, 524 F.3d 384, indicates that CUTPA is an
appropriate predicate statute to satisfy the relevant
exception to PLCAA immunity.
That exception, 15 U.S.C. § 7903(5)(A)(iii), provides as
follows: “The term ‘qualified civil liability action’ . . . shall
not include . . . an action in which a manufacturer or
seller of a qualified product knowingly violated a State or
Federal statute applicable to the sale or marketing of the
product, and the violation was a proximate cause of the
harm for which relief is sought, including—(I) any case in
which the manufacturer or seller knowingly made any
false entry in, or failed to make appropriate entry in, any
record required to be kept under Federal or State law
with respect to the qualified product, or aided, abetted,
or conspired with any person in making any false or
fictitious oral or written statement with respect to any
fact material to the lawfulness of the sale or other
disposition of a qualified product; 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 qualified product knowing, or having
reasonable cause to believe, that the actual buyer of the
qualified product was prohibited from possessing or

 199a
receiving a firearm or ammunition under subsection (g)
or (n) of section 922 of Title 18 . . .”
There is no appellate authority resolving the issue of
whether CUTPA qualifies as a predicate statute or
discussing the breadth of the predicate exception.
Therefore, under principles set forth previously in this
memorandum, the court must follow the plain meaning
rule to interpret the federal statute and, accordingly, will
look to the decisions of the Second Circuit Court of
Appeals as particularly persuasive authority.
See
Rodriquez v. Testa, supra, 296 Conn. 11.
In New York v. Beretta U.S.A. Corp., supra, 524 F.3d
384, the Second Circuit Court of Appeals specifically
addressed the meaning of the term “applicable” as
Congress used that word in the phrase “statute
applicable to the sale or marketing of [firearms].” In
Beretta, the city of New York brought an action against
various firearms manufacturers to decrease the alleged
public nuisance caused by the defendants’ negligent and
reckless merchandising of handguns. While the plaintiffs
relied on the dictionary definition of “applicable,” i.e.,
“capable of being applied,” the defendants argued that
“the phrase ‘statute applicable to the sale or marketing of
[a firearm]’ in the context of the language in the entire
statute limits the predicate exception to statutes
specifically and expressly regulating the manner in which
a firearm is sold or marketed—statutes specifying when,
where, how, and to whom a firearm may be sold or
marketed.” Id., 400. After determining that both groups
of parties in Beretta relied on a reasonable meaning of
the term, the Second Circuit conducted a statutory
interpretation of the word using canons of statutory
construction and the legislative history of PLCAA.
Ultimately, the court held that the exception created by
15 U.S.C. § 7903(5)(A)(iii) “does encompass statutes (a)

 200a
that expressly regulate firearms, or (b) that courts have
applied to the sale and marketing of firearms; and . . .
does encompass statutes that do not expressly regulate
firearms but that clearly can be said to implicate the
purchase and sale of firearms.” Id., 404.
In light of this highly persuasive interpretation of the
term “applicable,” and because CUTPA does not
expressly regulate firearms, the court must next analyze
whether: (1) courts have applied CUTPA to the sale and
marketing of firearms, or (2) CUTPA clearly can be said
to implicate the purchase and sale of firearms. With
regard to whether CUTPA is a statute that courts have
previously applied to the sale or marketing of firearms,
the answer is yes. Specifically, in Salomonson v.
Billistics, Inc., Superior Court, judicial district of New
London, Docket No. CV-88-508292 (September 27, 1991,
Freedman, J.T.R.), the court held that “[t]he instant
transactions for the sale, manufacture and delivery of
remanufacturer weapons to Plaintiff meets the statutory
definition of trade or commerce, General Statutes § 42110a(4) . . .” In addition, in Ganim v. Smith & Wesson
Corp., 258 Conn. 313, 780 A.2d 98 (2001), the plaintiffs,
the city of Bridgeport and its mayor, Joseph Ganim,
asserted CUTPA claims against the defendants, various
firearm manufacturers, trade associations, and retail
sellers, arising from the defendants’ alleged misconduct
in the advertising, marketing, and selling of handguns.
Id., 315-16, 334-35.
Although the Supreme Court
ultimately dismissed the CUTPA claims on standing
grounds; Id, 373; it expressed no concern regarding
whether the statute applied to such transactions. To the
contrary, the Supreme Court expressly left open the
possibility that a CUTPA claim based on a defendant’s
misleading marketing of firearms could be maintained by
appropriate plaintiffs who are less removed than those in

 201a
the Ganim case. Therefore, the test set forth in New
York v. Beretta is satisfied because the Superior Court
has applied CUTPA to the sale and marketing of
firearms. Accordingly, CUTPA is a valid predicate
statute.
2
Legal Sufficiency of CUTPA Claims
The defendants next argue that, even if CUTPA
qualifies as a predicate statute, the plaintiffs’ allegations
of CUTPA violations do not satisfy PLCAA’s predicate
exception because they do not constitute legally sufficient
CUTPA claims.
a
Relationship Between the Parties
First, the defendants contend that the CUTPA counts
are legally insufficient because CUTPA does not provide
protection for persons who do not have a consumer or
commercial relationship with the alleged wrongdoer, and
such a relationship does not exist between the plaintiffs
and the defendants in the present action. In response,
the plaintiffs argue that any person who suffers any
ascertainable loss of money or property may sue under
CUTPA, regardless of whether they have a consumer or
commercial relationship with the defendant.
“In 1973, when CUTPA was first enacted, the
predecessor to § 42-110g contained language that limited
standing to [a]ny person who purchases or leases goods
or services . . . In 1979, however, the legislature
amended [CUTPA], deleting all references to purchasers,
sellers, lessors, or lessees . . . Notwithstanding the
elimination of the privity requirement, [our Supreme
Court] previously ha[s] stated that it strains credulity to
conclude that CUTPA is so formless as to provide
redress to any person, for any ascertainable harm,

 202a
caused by any person in the conduct of any trade or
commerce.” (Citations omitted; internal quotation marks
omitted.) Vacco v. Microsoft Corp., 260 Conn. 59, 87-88,
793 A.2d 1048 (2002). More recently in Pinette v.
McLaughlin, 96 Conn.App. 769, 901 A.2d 1269, cert.
denied, 280 Conn. 929, 909 A.2d 958 (2006), our Appellate
Court reiterated this point, stating that “[a]lthough our
Supreme Court repeatedly has stated that CUTPA does
not impose the requirement of a consumer relationship . .
. the court also has indicated that a plaintiff must have at
least some business relationship with the defendant in
order to state a cause of action under CUTPA.” (Citation
omitted; emphasis in original.) Id., 778; see also Ventres
v. Goodspeed Airport, LLC, 275 Conn. 105, 157-58, 881
A.2d 937 (2005) (rejecting defendants’ argument that
CUTPA plaintiff is not required to allege any business
relationship with defendant), cert. denied, 547 U.S. 1111,
126 S.Ct. 1913, 164 L.Ed.2d 664 (2006).
“Although the doctrine of stare decisis permits a
court to overturn its own prior cases in limited
circumstances, the concept of binding precedent
prohibits a trial court from overturning a prior decision
of an appellate court. This prohibition is necessary to
accomplish the purpose of a hierarchical judicial system.
A trial court is required to follow the prior decisions of an
appellate court to the extent that they are applicable to
the facts and issues in the case before it, and the trial
court may not overturn or disregard binding precedent.”
(Emphasis omitted.) Potvin v. Lincoln Service &
Equipment Co., 298 Conn. 620, 650, 6 A.3d 60 (2010). In
both Ventres and Pinette, our Supreme Court and
Appellate Court, respectively, rejected the plaintiffs’
assertions that they need not allege any business
relationship with the defendants in order to bring claims
against them under CUTPA.

 203a
Although this court acknowledges that, consistent
with the plaintiffs’ argument, the language of CUTPA
itself makes no mention of a business relationship
requirement, 25 this court is bound by the appellate court
precedent set by Ventres and Pinette. The plaintiffs here
do not contend that a consumer, competitor, or other
commercial relationship exists between themselves, i.e.,
the Sandy Hook shooting victims, and the defendants,
i.e., the manufacturers and/or sellers of the gun allegedly
used in the Sandy Hook shooting. Because the plaintiffs
do not allege at least some business relationship with the
defendants, pursuant to Ventres and Pinette, they have
not set forth legally sufficient violations of CUTPA.
Therefore, to the extent that the plaintiffs have relied on
As further support for their argument that they are not required
to allege a business relationship with the defendants in order to
bring CUTPA claims, the plaintiff’s cite to the portion of the decision
in Ganim v. Smith & Wesson Corp., supra, 258 Conn. 313, in which
our Supreme Court stated: “We have already identified some of the
directly injured parties who could presumably, without the attendant
[remoteness] problems . . . remedy the harms directly caused by the
defendants’ conduct and thereby obtain compensation . . .” Id., 359.
“[T]he harm suffered by the potential other plaintiffs . . . exists at a
level less removed from the alleged actions of the defendants
[various handgun manufacturers, trade associations, and retail gun
sellers].
They include, for example, all 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 handguns, and all of the families of the persons who
committed suicide using those handguns.” Id. Notably, however,
this language appears in the context of the court’s discussion
regarding the remoteness doctrine as a limitation on standing, a
completely different issue than that which is before the court in the
present case. In fact, Ganim expressly declined to consider whether
a CUTPA claim is confined to consumers, competitors, and those in
some business or commercial relationship with the defendants. Id.,
372. Accordingly, this court finds the plaintiffs’ references to Ganim
to be inapposite to the present issue.
25

 204a
CUTPA as a predicate statute, the plaintiffs have not set
forth legally sufficient claims permitted under the
predicate exception to PLCAA.
b
Alternative Arguments as to the Legal Sufficiency of
Alleged CUTPA Violations
Although the foregoing analysis is dispositive of the
motions to strike with regard to the CUTPA analysis, the
court will consider, in the interest of completeness, the
alternative arguments of the defendants regarding the
legal sufficiency of the plaintiffs’ CUTPA claims. Those
issues are: (1) whether the type of injury alleged is
sufficient under CUTPA; (2) whether the claims are time
barred by CUTPA’s three-year statute of limitations; (3)
whether the claims are actually products liability claims
and therefore cannot be asserted as CUTPA claims; and
(4) whether General Statutes § 42-110c(a) exempts the
defendants from CUTPA liability.
i
Type of Injury Permitted Under CUTPA
The defendants contend that the plaintiffs have not
set forth legally sufficient CUTPA violations because the
plaintiffs do not seek the sort of relief CUTPA affords,
namely, damages for financial injury. In contrast, the
plaintiffs argue that CUTPA indeed provides a remedy
for personal injury and wrongful death.
Section 42-110g(a) of CUTPA provides: “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.”
Although the statute does not define what kinds of
damages constitute “actual damages,” “[c]ourts have held
a number of types of economic damages recoverable as

 205a
‘actual damages’ pursuant to CUTPA, including lost
profits, the lost value of a business, the lost benefit of a
bargain, restitution and out-of-pocket losses . . . Less
clear is if and to what extent damages for personal
injuries or such injuries as damage to reputation can be
recovered as ‘actual damages’ under § 42-110g(a). The
legislative history of both CUTPA and the model
legislation on which CUTPA was based, is silent as to
whether the legislation was intended to allow recovery of
personal injury damages . . . Although a number of cases
in which the plaintiff sought recovery for personal
injuries based on a violation of CUTPA have reached the
Connecticut appellate court, in each case the appellate
court denied recovery for a reason other than the
inability to recover for personal injury damages under
the Act. In none of these cases did the court address, or
even refer to, the issue of whether damages for personal
injuries are recoverable under CUTPA.” (Footnotes
omitted.) R. Langer, J. Morgan & D. Belt, 12 Connecticut
Practice Series (2015-2016 Ed.) § 6.7, pp. 805-07 (citing
various appellate court cases as examples, including
Sherwood v. Danbury Hospital, 252 Conn. 193, 213-15,
746 A.2d 730 [2000]; Haynes v. Yale–New Haven
Hospital, 243 Conn. 17, 34, 699 A.2d 964 [1997]; Haesche
v. Kissner, 229 Conn. 213, 224, 640 A.2d 89 [1994]).
While Connecticut’s trial court judges are divided on
this issue, the majority of judges addressing it have held
that damages for personal injuries can be recovered
under CUTPA. See 12 R. Langer, J. Morgan & D. Belt,
supra, § 6.7, p. 808 (citing DiTeresi v. Stamford Health
System, Inc., Superior Court, judicial district of
Stamford–Norwalk, Docket No. CV-06-5001340–S
(September 2, 2011, Tierney, J.T.R.) (denying motion to
reargue previously granted motion for summary
judgment in favor of defendant on plaintiff’s CUTPA

 206a
claim because plaintiff failed to present evidence
demonstrating that any physical injuries resulted from
defendant’s practices); Mola v. Home Depot USA,
Superior Court, judicial district of Stamford–Norwalk,
Docket No. CV-98-0167635–S (October 29, 2001, Mintz,
J.); Cole v. Federal Hill Dental Group, P.C., Superior
Court, judicial district of Hartford-New Britain, Docket
No. CV-99-0492391–S (July 20, 2000, Kocay, J.) (28 Conn.
L. Rptr. 18); Simms v. Candela, 45 Conn.Sup. 267, 711
A.2d 778 (1998) [21 Conn. L. Rptr. 479] (plaintiff who has
suffered “ascertainable loss” as a result of a CUTPA
violation may recover for personal injuries where
business practices are implicated); Abbhi v. AMI,
Superior Court, judicial district of New Haven, Docket
No. CV-96-0382195–S (June 3, 1997, Silbert, J.) (19 Conn.
L. Rptr. 493) (CUTPA claim can be asserted where
plaintiff suffered personal injuries).
Most notably, in Simms v. Candela, supra, 45
Conn.Sup. 267, the court conducted a thorough analysis
of this issue, ultimately denying the defendant’s motion
to strike that was brought on the ground that damages
for personal injury are not recoverable under CUTPA.
Id., 268. The court based its decision on the legislative
history of CUTPA, Federal Trade Commission
precedent, other cases that allowed CUTPA claims
seeking damages for personal injury to proceed, the fact
that the plaintiff’s economic damages satisfied the
“ascertainable loss” requirement, the statutory language
of § 42-110g(a) allowing recovery for “actual damages,”
and the recognition of personal injury claims under the
statutes of other jurisdictions prohibiting unfair trade
practices. See id., 271-76. This court finds the reasoning
set forth in Simms to be comprehensive and persuasive,

 207a
and thus it adopts this majority view. 26 Accordingly, the
court finds that the fact that the plaintiffs seek damages
for personal injuries does not render their claims of
CUTPA violations legally insufficient.
ii
Statute of Limitations
The defendants next argue that the CUTPA
allegations are legally insufficient because the claims are
barred by CUTPA’s three-year statute of limitations.
The plaintiffs contend that the applicable statute of
limitations is, in fact, two years pursuant to General
Statutes § 52-555, the wrongful death statute, and that,
therefore, the motions cannot be granted on this ground.
“[O]rdinarily, [a] claim that an action is barred by the
lapse of the statute of limitations must be pleaded as a
special defense, not raised by a motion to strike.”
(Internal quotation marks omitted.) Greco v. United
Technologies Corp., 277 Conn. 337, 344 n.12, 890 A.2d
1269 (2006). “[T]here are two exceptions to that holding.
Those exceptions relate to situations in which a motion to
strike, filed instead of a special defense of a statute of
limitations, would be permitted.” Girard v. Weiss, 43
Conn.App. 397, 415, 682 A.2d 1078, cert. denied, 239
Conn. 946, 686 A.2d 121 (1996). “The first is when [t]he
parties agree that the complaint sets forth all the facts
pertinent to the question [of] whether the action is
barred by the [s]tatute of [l]imitations and that,
therefore, it is proper to raise that question by [a motion
to strike] instead of by answer.” (Internal quotation
The Supreme Judicial Court of Massachusetts has reached a
similar conclusion with regard to an analogous Massachusetts
statute. It has expressly stated “that damages due to personal
injuries are recoverable under c. 93A.” Haddad v. Gonzalez, 410
Mass. 855,868,576 N.E.2d 658 (1991).
26

 208a
marks omitted.) Forbes v. Ballaro, 31 Conn.App. 235,
239, 624 A.2d 389 (1993). The second exception “exists . .
. when a statute gives a right of action which did not exist
at common law, and fixes the time within which the right
must be enforced, the time fixed is a limitation or
condition attached to the right—it is a limitation of the
liability itself as created, and not of the remedy alone.”
(Internal quotation marks omitted.) Greco v. United
Technologies Corp., supra, 277 Conn. 345 n.12. Because
CUTPA gives a right of action which did not exist at
common law; see Associated Investment Co. Ltd.
Partnership v. Williams Associates IV, 230 Conn. 148,
159, 645 A.2d 505 (1994); and fixes the time within which
the right must be enforced; General Statutes § 42110g(f); the defendants’ motions to strike on this ground
fall into the second exception and are thus properly
before the court.
CUTPA provides in relevant part that “[a]n action
under this section may not be brought more than three
years after the occurrence of a violation of this chapter.”
General Statutes § 42-110g(f). Here, the defendants
argue that, pursuant to the amended complaint, the
occurrence of the alleged CUTPA violation took place
either “sometime prior to March of 2010” with regard to
the Remington and Camfour defendants 27 and “[i]n
March of 2010” with regard to the Riverview

More specifically, paragraph 176 of the amended complaint alleges
that “[s]ometime prior to March of 2010, the Bushmaster Defendants
entrusted the XM15–E2S to the Camfour Defendants,” and
paragraph 178 alleges that “[s]ometime prior to March of 2010, the
Camfour Defendants entrusted the Bushmaster XM15–E2S to the
Riverview Defendants.”
27

 209a
defendants. 28 Accordingly, the defendants argue, the
three-year statute of limitations for the CUTPA claims
against them expired either sometime prior to or within
March of 2013 for all of the defendants. Because this
action was not filed within that timeframe, the
defendants reason, the claims at issue were brought well
after the three-year mark from the date of the alleged
CUTPA violations.
In contrast, the plaintiffs argue that the wrongful
death statute, § 52-555, contains the controlling statute of
limitations for purposes of their CUTPA claims. Section
52-555 provides in relevant part that “no action shall be
brought to recover such damages and disbursement but
within two years from the date of death . . .” As support
for their assertion, the plaintiffs rely on the Superior
Court case Pellecchia v. Connecticut Light & Power Co.,
52 Conn.Sup. 435, 54 A.3d 1080 (2011), aff’d in part and
appeal dismissed in part, 139 Conn.App. 88, 54 A.3d 658
(2012), cert. denied, 307 Conn. 950, 60 A.3d 740 (2013).
As in the present case, the court in Pellechia
considered the applicable statute of limitations that
controls in an action involving wrongful death, stating:
“The wrongful death statute . . . is the sole basis upon
which an action that includes as an element of damages a
person’s death or its consequences can be brought . . . As
a result, where damages for a wrongful death are sought,
the pertinent statute of limitations is to be found in § 52555 rather than the statutes of limitations for torts or
negligence generally . . . This rule, however, does not bar
the plaintiff from advancing alternative theories of
recovery, or causes of action, pursuant to the wrongful
Paragraph 182 of the amended complaint alleges: “In March of
2010, the Riverview Defendants entrusted the Bushmaster XM15–
E2S to Nancy Lanza.”

28

 210a
death statute . . . Here, all of the plaintiff’s claims against
the . . . defendants seek damages arising from the death
of the plaintiff’s decedent in July 2006. While he has
advanced different theories of liability (such as
negligence, recklessness, and violation of [CUTPA]) . . .
they all are subject to the two-year limitations period set
forth in § 52-555.” (Citations omitted; internal quotation
marks omitted.) Pellechia v. Connecticut Light & Power
Company, supra, 52 Conn.Sup. 445. On appeal, the
Appellate Court adopted the “well reasoned decision” of
the trial court and affirmed the trial court on the statute
of limitations issue. 29 Pellechia v. Connecticut Light &
Power Company, supra, 139 Conn.App. 90.
In the present case, the plaintiffs may advance
different theories of recovery or causes of action, such as
CUTPA, pursuant to the wrongful death statute.
Pellechia makes clear, however, that those theories of
liability are all subject to the two-year statute of
limitations period set forth in § 52-555. 30 Moreover, the
Specifically, the Appellate Court said: “We have examined the
record on appeal and considered the briefs and arguments of the
parties and conclude that the judgment of the trial court should be
affirmed.
Because the trial court thoroughly addressed the
arguments raised in this appeal, we adopt its well reasoned decision
as a statement of the facts and the applicable law on the issue . . .
Any further discussion by this court would serve no useful purpose.”
(Citation omitted.) Pellechia v. Connecticut Light & Power
Company, supra, 139 Conn.App. 90.
30
The deaths at issue in the present case occurred on December 14,
2012. Therefore, by the normal operation of the limitations period
set forth in § 52-555, the plaintiffs would have needed to commence
this action within two years of that date, i.e., by December 14, 2014.
Although the action was not commenced by service of process on or
before that date, a review of the court documents reveals that the
wrongful death claims are not time barred. General Statutes § 52593a provides in relevant part that “a cause or right of action shall
not be lost because of the passage of the time limited by law within
29

 211a
court finds no support for the defendants’ contention that
Pellechia holds that both statutes of limitations under
CUTPA and the wrongful death statute must be satisfied
in order for the plaintiffs to assert legally sufficient
CUTPA wrongful death claims. The plaintiffs’ action
satisfies the two-year limitations period set forth in § 52555. Accordingly, the plaintiffs’ wrongful death claims
are not barred by the applicable statute of limitations as
set forth in § 52-555. With regard to the allegations of
CUTPA violations contained within counts thirty-one,
thirty-two, and thirty-three, however, the plaintiffs
concede, and the court agrees, that these counts brought
by survivor Natalie Hammond against the defendants
must be stricken on the ground that § 52-555 does not
apply to these claims; thus, these claims are barred by
the CUTPA three-year statute of limitations.
iii
The Exclusivity Provision of the Connecticut Product
Liability Act (CPLA)
The defendants contend that the plaintiffs’ claims are
actually product liability claims and that the CPLA
contains an exclusivity provision which forecloses any
other claims. 31 The plaintiffs aver that they have not
which the action may be brought, if the process to be served is
personally delivered to a state marshal, constable or other proper
officer within such time and the process is served, as provided by
law, within thirty days of the delivery . . .” As the process was
delivered to the marshal within the two-year period and the marshal
served process on the defendants within thirty days of the delivery,
the wrongful death claims are not time barred.
31
The defendants additionally argue that PLCAA prohibits a
product liability action where the discharge of the firearm was the
result of a volitional criminal act. The plaintiff does not claim to be
asserting a product liability cause of action. PLCAA specifically
exempts “an action for death, physical injuries or property damage
resulting directly from a defect in design or manufacture of the

 212a
alleged a product liability claim because their arguments
for liability are not based on a defective product, the
marketing of a defective product, or the failure to warn
about such a product.
“The exclusivity provision of the product liability act
provides: ‘A product liability claim . . . 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.’ General
Statutes § 52-572n(a).” (Footnotes omitted.) Gerrity v. R.
J. Reynolds Tobacco Co., supra, 263 Conn. 125-26.
Therefore, if the plaintiffs’ claims sound in products
liability, they may not be brought pursuant to CUTPA.
In Connecticut, “the legislature defined a product
liability claim to include all claims or actions brought for
personal injury, death or property damage caused by [an]
allegedly defective product. General Statutes § 52572m(b). The legislature also provided that the damages
are caused by the defective product if they arise from the
manufacture, construction, design, formula, preparation,
assembly, installation, testing, warnings, instructions,
marketing, packaging or labeling of any product.
General Statutes § 52-572m(b). In addition, a product
liability claim is defined broadly to include, but not be
product, when used as intended or in a reasonably foreseeable
manner, except that where the discharge of the product was caused
by a volitional act that constituted a criminal offense, then such act
shall be considered the sole proximate cause of any resulting death,
personal injuries or property damage”; (emphasis added) 15 U.S.C. §
7903(A) (5)(v) (2012); from the definition of a qualified, and therefore
prohibited, civil liability action. In the present case, “[i]t is
uncontroverted that a third party discharged the [weapon], during
the commission of a criminal act.” Jefferies v. District of Columbia,
916 F.Sup.2d 42, 46 (2013). Accordingly, regardless of whether the
plaintiffs have alleged a product liability action, this exception does
not apply.

 213a
limited to, all actions based on [s]trict liability in tort;
negligence; breach of warranty, express or implied;
breach of or failure to discharge a duty to warn or
instruct,
whether
negligent
or
innocent;
misrepresentation or nondisclosure, whether negligent or
innocent. General Statutes § 52-572m(b). Finally, the
legislature defined [h]arm for purposes of the act to
include damage to property, including the product itself,
and personal injuries including wrongful death. General
Statutes § 52-572m(d). These definitions must be read
together, with the understanding that the [liability act]
was designed in part to codify the common law of product
liability, and in part to resolve, by legislative compromise,
certain issues among the groups interested in the area of
product liability. The [liability act], however, was not
designed to eliminate claims that previously were
understood to be outside the traditional scope of a claim
for liability based on a defective product. Given this
contextual framework, [the Supreme Court] conclude[d]
that a product liability claim under the [liability] act is
one that seeks to recover damages for personal injuries,
including wrongful death, or for property damages,
including damage to the product itself, caused by the
defective product.” (Emphasis added; internal quotation
marks omitted.) Hurley v. Heart Physicians, P. C., 278
Conn. 305, 324-25, 898 A.2d 777 (2006), quoting Gerrity v.
R. J. Reynolds Tobacco Co., supra, 263 Conn. 128.
“A product may be defective due to a flaw in the
manufacturing process, a design defect or because of
inadequate warnings or instructions.” Vitanza v. Upjohn
Co., 257 Conn. 365, 373, 778 A.2d 829 (2001). As Justice
Zarella has observed, “[c]onsistent with our product
liability law, the Restatement (Third) recognizes three
distinct categories of product defect claims:
manufacturing defects, design defects, and marketing

 214a
defects, also called a failure to warn.” Izzarelli v. R. J.
Reynolds Tobacco Co., 321 Conn. 172, 214, 136 A.3d 1232
(2016) (Zarella, J., concurring). Reading these definitions
together, the court concludes that “a product liability
claim under the [CPLA] is one that seeks to recover
damages for personal injuries, including wrongful death,
or for property damages, including damage to the
product itself, caused by”; (internal quotation marks
omitted) Hurley v. Heart Physicians, P. C., supra, 278
Conn. 325; “a flaw in the [product’s] manufacturing
process, a design defect or because of inadequate
warnings or instructions.” Vitanza v. Upjohn Co., supra,
257 Conn. 373. “Inadequate warnings or instructions”
encompasses “failure to warn” and “marketing defects.”
Izzarelli v. R.J. Reynolds Tobacco Co., supra, 214-15
(Zarella, J., concurring); see also Restatement (Third),
Torts, Products Liability § 2 (1998).
In the present case, the defendants argue that the
plaintiffs seek wrongful death and personal injury
damages allegedly resulting from product design. “To
prevail on a design defect claim a plaintiff must prove
that the product is unreasonably dangerous . . .
Unreasonably dangerous is defined under Connecticut
law using the consumer expectation standard, which
provides that the article sold must be dangerous to an
extent beyond that which would be contemplated by the
ordinary consumer who purchases it, with the ordinary
knowledge common to the community as to its
characteristics.” (Citation omitted; internal quotation
marks omitted.) Fraser v. Wyeth, Inc., 857 F.Sup.2d 244,
256 (D.Conn. 2012). The plaintiffs are not claiming that
the defendants are liable because the firearm is
unreasonably dangerous and state “indeed, it is an ideally
dangerous product for a large consumer base (that is,
military and law enforcement personnel).”

 215a
The defendants also argue that the plaintiffs seek
wrongful death and personal injury damages allegedly
resulting from wrongful marketing. As stated above,
defective marketing is synonymous with inadequate
warnings or instructions. “[A] product may be defective
because a manufacturer or seller failed to warn of the
product’s unreasonably dangerous propensities . . .
Under such circumstances, the failure to warn, by itself,
constitutes a defect.” (Citations omitted; emphasis
omitted; internal quotation marks omitted.) Sharp v.
Wyatt, Inc., 31 Conn.App. 824, 833, 627 A.2d 1347 (1993),
aff’d, 230 Conn. 12, 644 A.2d 871 (1994). Again, the
plaintiffs have not alleged liability based on a product
defect. Furthermore, the plaintiffs have not alleged any
facts regarding the defendants providing, or failing to
provide, warnings or instructions.
In sum, construing the complaint in the light most
favorable to sustaining its legal sufficiency, the plaintiffs
have not alleged that the product was in any way
defective and have therefore not alleged a product
liability claim. For this reason, the plaintiffs’ CUTPA
claims are not barred by the CPLA’s exclusivity
provision.
iv
General Statutes § 42-110c(a): CUTPA’s Exemption
Provision
Finally, the defendants argue that § 42-110c(a)(1)
exempts them from CUTPA liability. Section 42-110c(a)
provides in relevant part: “Nothing in this chapter shall
apply to: (1) Transactions or actions otherwise permitted
under law as administered by any regulatory board or
officer acting under statutory authority of the state or of
the United States . . .” The court does not grant the
defendants’ motions to strike on this basis. First, as the

 216a
plaintiffs contend, the applicability of this provision
generally should be raised by way of a special defense or
a motion for summary judgment, rather than a motion to
strike. See Gonzalez v. Church Street New Haven, LLC,
Superior Court, judicial district of New Haven, Docket
No. CV-14-6050201 (November 2, 2015, Blue, J.) (61
Conn. L. Rptr. 169) (CUTPA’s exemption provision is
affirmative defense that must be alleged in pleadings and
proved at trial or raised in motion for summary
judgment, not motion to strike). Second, none of the
defendants has adequately briefed the issue of whether
this exemption applies to the present case, and the court,
therefore, will not address it. See Connecticut Light &
Power Co. v. Dept. of Public Utility Control, 266 Conn.
108, 120, 830 A.2d 1121 (2003) (court is “not required to
review issues that have been improperly presented . . .
through an inadequate brief [internal quotation marks
omitted]). Accordingly, the court does not grant the
motions to strike on the ground that CUTPA’s
governmental exemption provision bars the action.
III
CONCLUSION
Congress, through the Protection of Lawful
Commerce in Arms Act (PLCAA), has broadly prohibited
lawsuits “against manufacturers, distributors, dealers,
and importers of firearms . . . for the harm solely caused
by the criminal or unlawful misuse of firearm products . .
. by others when the product functioned as designed and
intended.” 15 U.S.C. § 7901(b)(1) and § 7902(a) (2012).
The present case seeks damages for harms, including the
deaths of the plaintiffs’ decedents, that were caused
solely by the criminal misuse of a weapon by Adam
Lanza. Accordingly, this action falls squarely within the
broad immunity provided by PLCAA.

 217a
Although PLCAA provides a narrow exception under
which plaintiffs may maintain an action for negligent
entrustment of a firearm, the allegations in the present
case do not fit within the common-law tort of negligent
entrustment under well-established Connecticut law, nor
do they come within PLCAA’s definition of negligent
entrustment. Furthermore, the plaintiffs cannot avail
themselves of the Connecticut Unfair Trade Practices
Act (CUTPA) to bring this action within PLCAA’s
exception allowing lawsuits for violation of a state statute
applicable to the sale or marketing of firearms. A
plaintiff under CUTPA must allege some kind of
consumer, competitor, or other commercial relationship
with a defendant, and the plaintiffs here have alleged no
such relationship.
For all of the foregoing reasons, the court grants in
their entirety the defendants’ motions to strike the
amended complaint. 32

The court is aware that one of the defendants, Riverview Sales,
Inc., has filed a petition for bankruptcy. Pursuant to the automatic
stay provision of the Bankruptcy Code, 11 U.S.C. § 362, this action is
automatically stayed with respect to that defendant. Accordingly,
this decision does not apply with regard to Riverview Sales, Inc.
Any and all references to Riverview Sales, Inc., and “the Riverview
defendants” in this memorandum, therefore, are included for the
sake of clarity and should not be construed as applying this decision
to the claims against Riverview Sales, Inc., in any way. See Ellis v.
Consolidated Diesel Electric Corp., 894 F.2d 371, 373 (10th Cir. 1990)
(“[t]he operation of the stay should not depend on whether the . . .
court finds for or against the debtor” [emphasis in original]); see also
Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 528 (2d Cir.
1994) (bankruptcy stay applies to judicial decision making by court,
but not ministerial acts performed by clerk following completion of
judicial function).
32

 APPENDIX C
SUPREME COURT
STATE OF CONNECTICUT
SC 19832
SC 19833
DONNA L. SOTO, ADMINISTRATRIX OF THE
ESTATE OF VICTORIA L. SOTO, ET AL.
v.
BUSHMASTER FIREARMS INTERNATIONAL,
LLC AKA FREEDOM
GROUP, INC.
AKA REMINGTON OUTDOOR CO.,
INC. ET AL.
May 1, 2019
ORDERED
THE MOTION OF THE DEFENDANTS
REMINGTON ARMS COMPANY LLC AND
REMINGTON OUTDOOR COMPANY, INC., FILED
APRIL 4, 2019, TO STAY PENDING DECISION BY
THE UNITED STATES SUPREME COURT,
HAVING BEEN PRESENTED TO THE COURT, IT
IS HEREBY ORDERED GRANTED UNTIL THE
EXPIRATION OF THE TIME TO PETITION TO
THE UNITED STATES SUPREME COURT OR, IF A
PETITION IS FILED, UNTIL THAT COURT HAS
TAKEN ACTION IN THIS CASE, EITHER BY A
DENIAL OF THE PETITION FOR CERTIORARI
(218a)

 219a
OR, IF APPLICABLE, BY A DECISION ON THE
MERITS.
BY THE COURT,
/S/
L. JEANNE
DULLEA
ASSISTANT
CLERKAPPELLATE
NOTICE SENT: MAY 2, 2019
COUNSEL OF RECORD
HON. BARBARA BELLIS
CLERK, SUPERIOR COURT FBT-CV15-6048103S
180336

 APPENDIX D
15 U.S.C.A. § 7901
§ 7901. Findings; purposes
(a) Findings
Congress finds the following:
(1) The Second Amendment to the United States
Constitution provides that the right of the people to
keep and bear arms shall not be infringed.
(2) The Second Amendment to the United States
Constitution protects the rights of individuals,
including those who are not members of a militia or
engaged in military service or training, to keep and
bear arms.
(3) Lawsuits have been commenced against
manufacturers, distributors, dealers, and importers of
firearms that operate as designed and intended,
which seek money damages and other relief for the
harm caused by the misuse of firearms by third
parties, including criminals.
(4) The manufacture, importation, possession, sale,
and use of firearms and ammunition in the United
States are heavily regulated by Federal, State, and
local laws. Such Federal laws include the Gun
Control Act of 1968, the National Firearms Act, and
the Arms Export Control Act.
(220a)

 221a
(5) Businesses in the United States that are engaged
in interstate and foreign commerce through the
lawful design, manufacture, marketing, distribution,
importation, or sale to the public of firearms or
ammunition products that have been shipped or
transported in interstate or foreign commerce are
not, and should not, be liable for the harm caused by
those who criminally or unlawfully misuse firearm
products or ammunition products that function as
designed and intended.
(6) The possibility of imposing liability on an entire
industry for harm that is solely caused by others is an
abuse of the legal system, erodes public confidence in
our Nation’s laws, threatens the diminution of a basic
constitutional right and civil liberty, invites the
disassembly and destabilization of other industries
and economic sectors lawfully competing in the free
enterprise system of the United States, and
constitutes an unreasonable burden on interstate and
foreign commerce of the United States.
(7) The liability actions commenced or contemplated
by the Federal Government, States, municipalities,
and private interest groups and others are based on
theories without foundation in hundreds of years of
the common law and jurisprudence of the United
States and do not represent a bona fide expansion of
the common law. The possible sustaining of these
actions by a maverick judicial officer or petit jury
would expand civil liability in a manner never
contemplated by the framers of the Constitution, by
Congress, or by the legislatures of the several States.
Such an expansion of liability would constitute a
deprivation of the rights, privileges, and immunities

 222a
guaranteed to a citizen of the United States under the
Fourteenth Amendment to the United States
Constitution.
(8) The liability actions commenced or contemplated
by the Federal Government, States, municipalities,
private interest groups and others attempt to use the
judicial branch to circumvent the Legislative branch
of government to regulate interstate and foreign
commerce through judgments and judicial decrees
thereby threatening the Separation of Powers
doctrine and weakening and undermining important
principles of federalism, State sovereignty and comity
between the sister States.
(b) Purposes
The purposes of this chapter are as follows:
(1) To
prohibit
causes
of
action
against
manufacturers, distributors, dealers, and importers of
firearms or ammunition products, and their trade
associations, for the harm solely caused by the
criminal or unlawful misuse of firearm products or
ammunition products by others when the product
functioned as designed and intended.
(2) To preserve a citizen’s access to a supply of
firearms and ammunition for all lawful purposes,
including hunting, self-defense, collecting, and
competitive or recreational shooting.
(3) To guarantee a citizen’s rights, privileges, and
immunities, as applied to the States, under the

 223a
Fourteenth Amendment to the United States
Constitution, pursuant to section 5 of that
Amendment.
(4) To prevent the use of such lawsuits to impose
unreasonable burdens on interstate and foreign
commerce.
(5) To protect the right, under the First Amendment
to the Constitution, of manufacturers, distributors,
dealers, and importers of firearms or ammunition
products, and trade associations, to speak freely, to
assemble peaceably, and to petition the Government
for a redress of their grievances.
(6) To preserve and protect the Separation of Powers
doctrine and important principles of federalism, State
sovereignty and comity between sister States.
(7) To exercise congressional power under article IV,
section 1 (the Full Faith and Credit Clause) of the
United States Constitution.

 224a
15 U.S.C.A. § 7902
§ 7902. Prohibition on bringing of qualified civil liability
actions in Federal or State court
(a) In general
A qualified civil liability action may not be brought in any
Federal or State court.
(b) Dismissal of pending actions
A qualified civil liability action that is pending on October
26, 2005, shall be immediately dismissed by the court in
which the action was brought or is currently pending.

 225a
15 U.S.C.A. § 7903
§ 7903. Definitions
In this chapter:
(1) Engaged in the business
The term “engaged in the business” has the meaning
given that term in section 921(a)(21) of Title 18, and,
as applied to a seller of ammunition, means a person
who devotes time, attention, and labor to the sale of
ammunition as a regular course of trade or business
with the principal objective of livelihood and profit
through the sale or distribution of ammunition.
(2) Manufacturer
The term “manufacturer” means, with respect to a
qualified product, a person who is engaged in the
business of manufacturing the product in interstate or
foreign commerce and who is licensed to engage in
business as such a manufacturer under chapter 44 of
Title 18.
(3) Person
The term “person” means any individual, corporation,
company, association, firm, partnership, society, joint
stock company, or any other entity, including any
governmental entity.
(4) Qualified product

 226a
The term “qualified product” means a firearm (as
defined in subparagraph (A) or (B) of section 921(a)(3)
of Title 18), including any antique firearm (as defined
in section 921(a)(16) of such title), or ammunition (as
defined in section 921(a)(17)(A) of such title), or a
component part of a firearm or ammunition, that has
been shipped or transported in interstate or foreign
commerce.
(5) Qualified civil liability action
(A) In general
The term “qualified civil liability action” means a
civil action or proceeding or an administrative
proceeding brought by any person against a
manufacturer or seller of a qualified product, or a
trade association, for damages, punitive damages,
injunctive or declaratory relief, abatement,
restitution, fines, or penalties, or other relief,
resulting from the criminal or unlawful misuse of a
qualified product by the person or a third party,
but shall not include-(i) an action brought against a transferor
convicted under section 924(h) of Title 18, or a
comparable or identical State felony law, by a
party directly harmed by the conduct of which
the transferee is so convicted;
(ii) an action brought against a seller for
negligent entrustment or negligence per se;
(iii) an action in which a manufacturer or
seller of a qualified product knowingly violated

 227a
a State or Federal statute applicable to the
sale or marketing of the product, and the
violation was a proximate cause of the harm for
which relief is sought, including-(I) any case in which the manufacturer or
seller knowingly made any false entry in, or
failed to make appropriate entry in, any
record required to be kept under Federal
or State law with respect to the qualified
product, or aided, abetted, or conspired
with any person in making any false or
fictitious oral or written statement with
respect to any fact material to the
lawfulness of the sale or other disposition
of a qualified product; 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 qualified product, knowing, or
having reasonable cause to believe, that the
actual buyer of the qualified product was
prohibited from possessing or receiving a
firearm or ammunition under subsection
(g) or (n) of section 922 of Title 18;
(iv) an action for breach of contract or
warranty in connection with the purchase of
the product;
(v) an action for death, physical injuries or
property damage resulting directly from a
defect in design or manufacture of the product,

 228a
when used as intended or in a reasonably
foreseeable manner, except that where the
discharge of the product was caused by a
volitional act that constituted a criminal
offense, then such act shall be considered the
sole proximate cause of any resulting death,
personal injuries or property damage; or
(vi) an action or proceeding commenced by the
Attorney General to enforce the provisions of
chapter 44 of Title 18 or chapter 53 of Title 26.
(B) Negligent entrustment
As used in subparagraph (A)(ii), the 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.
(C) Rule of construction
The exceptions enumerated under clauses
through (v) of subparagraph (A) shall
construed so as not to be in conflict, and
provision of this chapter shall be construed
create a public or private cause of action
remedy.
(D) Minor child exception

(i)
be
no
to
or

 229a
Nothing in this chapter shall be construed to limit
the right of a person under 17 years of age to
recover damages authorized under Federal or
State law in a civil action that meets 1 of the
requirements under clauses (i) through (v) of
subparagraph (A).
(6) Seller
The term “seller” means, with respect to a
qualified product-(A) an importer (as defined in section 921(a)(9) of
Title 18) who is engaged in the business as such an
importer in interstate or foreign commerce and
who is licensed to engage in business as such an
importer under chapter 44 of Title 18;
(B) a dealer (as defined in section 921(a)(11) of
Title 18) who is engaged in the business as such a
dealer in interstate or foreign commerce and who
is licensed to engage in business as such a dealer
under chapter 44 of Title 18; or
(C) a person engaged in the business of selling
ammunition (as defined in section 921(a)(17)(A) of
Title 18) in interstate or foreign commerce at the
wholesale or retail level.
(7) State
The term “State” includes each of the several
States of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, the

 230a
Virgin Islands, Guam, American Samoa, and the
Commonwealth of the Northern Mariana Islands,
and any other territory or possession of the
United States, and any political subdivision of any
such place.
(8) Trade association
The term “trade association” means-(A) any corporation, unincorporated association,
federation, business league, professional or
business organization not organized or operated
for profit and no part of the net earnings of which
inures to the benefit of any private shareholder or
individual;
(B) that is an organization described in section
501(c)(6) of Title 26 and exempt from tax under
section 501(a) of such title; and
(C) 2 or more members of which are
manufacturers or sellers of a qualified product.
(9) Unlawful misuse
The term “unlawful misuse” means conduct that
violates a statute, ordinance, or regulation as it
relates to the use of a qualified product.

 231a
C.G.S.A. § 42-110b
§ 42-110b. Unfair trade practices prohibited. Legislative
intent
(a) No person shall engage in unfair methods of
competition and unfair or deceptive acts or practices in
the conduct of any trade or commerce.
***