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.