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Lawyers, Guns and CUTPA, Get Me Outta of This

Posted February 23, 2016
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This is my second blog concerning Sandy Hook.  If you want to, read my first one here.  This is the only blogging I've done when, as my fingers hit the keys, my stomach feels like a ton of lead. I try to come up with a catchy title (I love that Warren Zevon song), because I want people to read this, and visit my site, yadayadayada.  But the title fits, doesn't it?  I wish we could all just get outta here and act as if Sandy Hook never, ever happened.  I read that each child had several bullets in their bodies.  No wonder the gun makers are shouting "get me outta of this" to Judge Bellis in Superior Court.

I really don't think the plaintiffs' arguments in their case against the gun manufacturer, Bushmaster Firearms, is as silly as some have opined, like this article in the Washington Post which argued that individual juries shouldn't make judgments about holding gun manufacturers liable, only legislatures because legislatures are the voice of the people.  Oh, really?  Can you say NRA? Or lobbyist? You see Congress passed a law that granted immunity to gun manufacturers with certain limited exceptions.  One of those exceptions is "negligent entrustment."  If you entrust something to someone and knew, or you should have known, it could be used in a way that would harm someone else, you should be held responsible.  Makes complete sense.

Plaintiffs' lawyer, Josh Koskoff, whom I have great respect for, wants his clients' lawsuit to get past the legal sufficiency stage so he can get to the discovery phase, where us lawyers hope the truth will come out. Judge Barbara Bellis yesterday heard oral argument on Bushmaster's motion to dismiss the plaintiffs' complaint (procedurally the Bushmaster defendants made the wrong argument, just saying).  All of the defendants say that the federal law (the Protection of Lawful Commerce in Arms Act or PLCAA) strips Judge Bellis of any power to even hear the case, including plaintiffs' claims under CUTPA, Connecticut's Unfair Trade Practices Act which I've written about here, and here.  You can read up on the law here.

Bushmaster (Remington really) says they are completely immune from suit because they engage in the "lawful design, manufacture, marketing, distribution . . .of firearms."  What are they so afraid of?  A runaway jury? Isn't the issue the plaintiffs present in their CUTPA claim exactly that: whether the gun maker "lawfully" marketed the guns?  Plaintiffs plead a compelling case that the gun maker markets these weapons with images of men in camouflage acting out war games.  Is the gun maker "lawfully" marketing weapons like the AR-15 to civilians who supposedly use semi-automatic weapons to shoot rabbits? When a gun maker markets the weapon's "military-proven performance" that make "forces of opposition bow down" are they engaging in deceptive marketing. Bow down rabbit, for God's sake bow down......

Imagine what the annals of the gun manufacturer's marketing research libraries would reveal if the case proceeds to discovery? Is that what Congress was protecting?  Because I would bet there are some interesting internal memos in there about their "lawful" marketing strategy. 

About the Author

Business and Employment Litigation Attorney Anthony Minchella

Tony represents Fortune 50 financial services companies, retail giants, and small and large specialty products companies in employment litigation, trade secret and non-competition litigation, and unfair trade practice issues. When acting as local counsel, Tony, an adjunct professor of law on Connecticut Civil Procedure at Quinnipiac Law School, helps lead counsel navigate the nuances of Connecticut state and federal court practice. Tony graduated magna cum laude from Quinnipiac University School of Law. He passed the New Jersey, New York and Connecticut bar exams and then moved on to careers with large and small firms which led to his boutique litigation practice.