The state Supreme Court issued its Soto decision in 2019, holding that the PLCAA did not bar the plaintiffs' claim that the defendants violated CUTPA by marketing the Bushmaster XM15-E2S to civilians, and that those allegedly wrongful marketing tactics contributed to the victims' deaths.

Alinor Sterling of Koskoff Koskoff & Bieder. Courtesy photo

That ruling allowed attorneys for the plaintiffs—Joshua D. Koskoff and Alinor C. Sterling, of Koskoff Koskoff & Bieder—to advance claims that it was the firearm's marketing campaign that led the shooter to select the gun as his weapon of choice that morning.

"The real innovation in the Soto case is the recognition that an Unfair Trade Practices Act claim comes within one of the PLCAA exceptions," Sterling said.

The plaintiffs argued that the XM15-E2S, an AR-15 rifle, is a military-grade weapon that is "grossly ill-suited" for legitimate civilian purposes. They alleged it was an unfair trade practice for the defendant to sell the weapon knowing it would be purchased by a civilian customer.

Further, they claimed that the defendants' militaristic marketing reinforced the image of the AR-15 as a combat weapon that could be used to carry out military-style combat missions against enemies.

The plaintiffs pointed to advertisements with slogans such as "Forces of opposition, bow down. You are single-handedly outnumbered," as examples.

CUTPA, enacted in 1973, prohibits unfair competition along with unfair and deceptive acts. The law states that any person who suffers an "ascertainable loss" of money or property as a result of an unfair or deceptive act prohibited by CUTPA may bring an action to recover that loss.

"The Connecticut Unfair Trade Practices Act is designed to protect the ordinary person from rapacious misconduct," Sterling said. "That's exactly what we were seeing in the marketing, so it was an innovative use of the fair practices act, but to us it made perfect sense because what we were seeing was marketing that was absolutely prohibited by the act, and our clients had been harmed by it."

CUTPA

The state Supreme Court's decision in Soto includes at least four important holdings regarding interpretations of CUTPA, according to Langer:

• Eliminates the "commercial relationship" test.
• Provides that "at least with respect to wrongful advertising claims" damages for personal injuries are recoverable under CUTPA.
• Wrongful conduct up to the time of filing can satisfy the statute of limitations.
• CUTPA is not always preempted by the Connecticut Product Liability Act.

Previously, CUTPA required a business relationship between the plaintiff and the defendant. However, in this case, even though the shooter's mother purchased the gun in March 2010, the state Supreme Court allowed the CUTPA claim to stand, noting that the shooter's behavior seemed to be influenced by the marketing.

Robert M. Langer of Wiggin and Dana. Courtesy photo

At the trial court level, Superior Court Judge Barbara Bellis cited the commercial relationship test as the principal reason for dismissing the claim.

In future CUTPA cases, the business relationship between the plaintiff and defendant could be separated by one or more levels, Langer said.

That has "profound implications for future interpretations of CUTPA," according to Langer.

"What plaintiffs counsel did was argue successfully to the Supreme Court that the commercial-relationship test should not be part of the methodology to determine whether someone has standing," Langer said.

Also, in a departure from precedent, the court allowed the CUTPA claim to stand, even though the gun was purchased 14 years before the plaintiffs delivered their summons and complaint to a state marshal on Dec. 13, 2014. CUTPA claims typically are subject to a three-year statute of limitations.

"They focused on the advertising to say the statute of limitations never really ran because the advertising continued until the date of the incident," Langer said.

He continued: "That is not necessarily consistent with prior case law, but it's now what the court has said, so in that sense, there may be more flexibility in the future in terms of whether the CUTPA statute of limitations will prevent the claim from being adjudicated."

Blueprint?

The Soto litigation focused on the fact that AR-15s have been commercially available in the United States since 1964, but mass shootings in schools are a more recent phenomenon.

"Yet anyone who grew up in the '70s and '80s and '90s, and even those who grew up in early 2000s, did not grow up with mass shootings perpetrated with the AR-15," Koskoff said. "What changed? The gun didn't change. It was transformed into a weapon not by making changes to the product, but by changing the marketing."

There were roughly 100,000 AR-15s sold in 2005, but by 2012, more than 2 million were sold, Koskoff said.

Whether the plaintiffs' strategy will become a blueprint for lawsuits against gun manufactures in other states remains to be seen.

"I think in many other states, it's an open question that their state supreme court has yet to tackle. Soto is guidance, but it just hasn't been decided in any of the states I'm aware of," Sterling said.

Most states have some form of unfair trade practice statute.

Koskoff said he believes a similar case is arising from the Parkland, Florida, shooting, which left 17 dead on Feb. 14, 2018. Another one is possible in California.

Koskoff believes the litigation strategy, which pierced the shield law for gun manufacturers, will help reduce gun violence.

"The gun industry is not known for self-reflection," Koskoff said. "We do expect the insurance industry that underwrites the gun industry will require safer marketing practices."

The attorney pointed to the car industry, which employs marketing practices that don't lend themselves to potential CUTPA claims.

"It's not that complicated," Koskoff said. "If you look at other industries, over time you'll see that most industries can find a balance between profit and safety. … In the car industry, the companies promote their safety. They don't promote their risk."

He continued: "Anything that leads to the industry changing its marketing practices not to court risk, but to promote the safest and most responsible use, should have an effect on lowering the incidence of mass shootings."

Our reporter Andrew Larson was a part of a team of reporters who covered the Sandy Hook shooting for the Republican-American newspaper in Waterbury, Conn. He was at the scene on the morning of Dec 14, 2012.