CT Supreme Court-Remington CAN be sued for Sandy Hook

[DaleA]

A link to the story is listed below. The CT Supreme Court overturned a lower court ruling and said Remington can be sued for the Sandy Hook shooting based on "wrongful marketing", that is the way Remington advertised the AR-15 style rifle.

I'm certain some of the legal folk here can talk about this with a lot more knowledge than I can including whether or not this could go up to the U.S. Supreme Court.

Here's the link to the AP story.
https://www.apnews.com/a4b101a04dc9469999880a61280fd0da

[sigarms228]

Wrongful marketing? Wow, if successful that could open up an enormous can of worms into the deep pockets of almost ANY company. While I can't see how any marketing Remington did somehow convinced someone of sane mind it was OK to mass murder dozens of young school children, who knows what a sympathetic and anti gun biased jury might do.

[rickyrick]

According to the article, the wrongful marketing suit will be reinstated. Claims Remington marketed to high risk individuals in order to increase sales.

[SIGSHR]

On one board, someone asked will makers of alcoholic beverages be sued ? "Wrongful marketing " ?

[DadOfThree]

Since the anti-gunners consider anyone would buy a gun to be "high risk" they probably did market to high risk individuals.

[zukiphile]

Dale, according to your AP story the CT court agreed that most of the Plaintiffs' claims were barred by the federal law, but that a state claim for "wrongful marketing" would not be dismissed.

I don't know what wrongful marketing under CT code is, but this sounds like liability for mere speech without any consumer protection component.

I wish AP would incorporate links to the underlying docs.

The Reuters report included:

***
The families had tried to advance the case on a relatively novel argument in gun litigation based on the legal doctrine of negligent entrustment, an argument historically used when someone lends a car to a high-risk driver who then causes an accident.

But the narrowly divided Supreme Court judges rejected that theory in a 4-3 ruling, instead saying the families could bring their claims under a different exemption to the 2005 federal shield law, basing it on a Connecticut consumer protection statute.
The court said PLCAA did not bar wrongful marketing claims and unethical advertising of dangerous products for illegal purposes and that plaintiffs could pursue those claims under state law.
Three dissenting judges rejected that finding, saying the federal gunmaker shield law did not include such exceptions.
***

https://www.reuters.com/article/us-u...-idUSKCN1QV2CY


The Ct Sup Ct's majority: https://www.jud.ct.gov/external/supa...1/331CR865.pdf

and dissent:
https://www.jud.ct.gov/external/supa.../331CR865E.pdf

[rickyrick]

Does anyone have examples of this marketing? I’d like to see it. Did they really target mentally unstable teens with murderous intent?

[Aguila Blanca]

The court said PLCAA did not bar wrongful marketing claims and unethical advertising of dangerous products for illegal purposes and that plaintiffs could pursue those claims under state law.

I will be anxiously awaiting further disclosure of exactly what illegal purposes Remington proposed that buyers use their AR-15s for in their advertising.

The real surprise for me in this is that there were actually three judges in Connecticut who were willing to follow the law.
Liberal judges with personal agendas are a pox on mankind humankind.

[Frank Ettin]

Now we need to get technical. This is all about a highly technical point of civil procedure (which is one reason the press will get it wrong). This is still in a very preliminary stage, and the plaintiffs haven't won yet. (This lawsuit was previously discussed at length in this thread. I outline very basic civil litigation procedure in this post.)

1. The plaintiffs appealed the trial courts dismissal of their case on the defendant's motion to strike (the Connecticut name for what is elsewhere called a motion to dismiss or a demurrer).
   
   
2. Making such a motion is one of the very first thing a defendant does when sued. Essentially nothing else has gone on yet.
   
   
   • The plaintiff filed the complaint -- the document that say you [the defendant] owe me money and these are the facts that support my claim.
     
     
   • The defendant files his motion to strike/motion to dismiss/demurrer which basically says that even if every fact you allege is true as a matter of law you have no valid claim against me.
   
   
3. So the plaintiffs filed the suit alleging various facts. At this stage those facts are assumed to be true. The defendants filed a motion saying the even if those facts are true, the plaintiffs have no valid claim. The trial court agreed and dismissed the plaintiffs' lawsuit. The plaintiffs appealed.
   
   
4. On appeal the Connecticut Supreme Court (CSC) mostly agreed with the trial court. The CSC wrote in the opinion:

   ....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—to the civilian population, the defendants became responsible for any crimes committed with those weapons....

5. However, the CSC disagreed with the trial court on one point. The CSC writes:

   ....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 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.....

6. So --
   
   
   • The CSC did not find that anything the plaintiffs claimed was true. The CSC merely, as required, assumed those facts were true in order to then decide the open questions of law.
     
     
   • The CSC determined that most of the plaintiffs claims were not valid, legal claims; and those claims have been decided in favor of the defendants.
     
     
   • The CSC is allowing the lawsuit to go forward on the one legal theory of liability remaining. That legal theory is based on claimed liability under a Connecticut consumer protection law. In doing so the CSC also decides that the claim under the particular state law was not precluded by the PLCAA.
   
   
7. The plaintiffs will still need to prove that the facts alleged to support their last viable theory of liability are true.
   
   
8. Also, the defendants can appeal to the federal courts on whether, as found by the CSC, a suit based on the particular state law is not precluded by the PLCAA.

There's still a lot of waiting and seeing to be done as the lawsuit grind through the process.

[Glenn E. Meyer]

If you google Remington or Bushmaster AR-15 ads, you can see the prose and pictures. The 'man card' theme is prominent.

Now, if this goes to trial, it would be interesting to see the debate of experts to demonstrate that such imagery and prose clearly leads to aggressive behavior or contributes to it in some extent. That is controversial in the aggression literature.

I know who I would call pro and con.

[5whiskey]

Frank posted an excellent summary, especially with this...

There's still a lot of waiting and seeing to be done as the lawsuit grind through the process.

Until then, the plaintiffs in this case should not be overly optimistic. Just because the plaintiffs found 1 valid legal principle that will allow the suit to proceed doesn't mean they have sufficient evidence and grounds to prove it by greater preponderance of the evidence. Basically read the bold. That is the only victory, and it is a very small one. Just means the defendant has to spend more money on legal fees for now.

... 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. ...

[DaleA]

Thank you to the legal folk...heck everybody that's posted so far on this thread...but especially the legal folk for their analysis and for going out and getting more information on this and writing it more completely and understandably than the original article.

For me the explanations were slow going but I sure have a better understanding now. Thank you again.

[rickyrick]

So here it is...





Sent from my iPhone using Tapatalk

[cjwils]

Anti-gun people in Hollywood have long claimed that their violent movies and TV shows could not possibly be at fault in pushing unstable people over the edge into committing violence. They shout "First Amendment," and most anti-gun groups have stood by them. The Connecticut case could be a very interesting precedent if the plaintiffs win. If advertising by a gun maker can push people into violence, then how could anyone claim that a violent movie does not do the same? The fallout could be very far ranging from this case.

[mehavey]

Of course these don't count:
https://gundesigndotorg.files.wordpr...tion.jpg?w=580
https://img.buzzfeed.com/buzzfeed-st...t-quality=auto
https://www.motherjones.com/wp-conte...ICarry_500.jpg
https://i.pinimg.com/originals/4d/4e...a82ff18979.jpg
https://i.pinimg.com/originals/d3/cf...adf8b1c918.jpg


I must be showing my age . . .
https://images-na.ssl-images-amazon....4,203,200_.jpg

But I digress . . .

[USNRet93]

Originally Posted by rickyrick

Does anyone have examples of this marketing? I’d like to see it. Did they really target mentally unstable teens with murderous intent?

Key discussion of 'red flag' laws' here...

Liberal judges with personal agendas are a pox on mankind humankind.

Works both ways..ANY judge ought to leave his or her 'personal agenda' at home.
There has been 'personal agendas' among judges for as long as there have been judges.
Just because their 'agenda' agrees with yours doesn't make it 'proper'..

[Aguila Blanca]

Originally Posted by USNRet93

Works both ways..ANY judge ought to leave his or her 'personal agenda' at home.
There has been 'personal agendas' among judges for as long as there have been judges.
Just because their 'agenda' agrees with yours doesn't make it 'proper'..

In theory, I agree that it can work both ways. In practice, however, it has been my observation in the course of my 75 years on this orbital spitball we call Earth that -- in general -- it is primarily liberal judges who are prone to folding, bending, twisting and mutilating the law to fit their agendas. Conservative judges, in my experience and observation, are much more likely to forego their personal agendas and apply the law as it is written.

As an example, there have been SCOTUS decisions authored by Justice Antonin Scalia in which he wrote that he didn't particularly like the result the law compelled him to find, but that he had to go by what the law said rather than by what he wished it had said.

[44 AMP]

Lets be clear about what's real, and not what a sound-byte headline implies.

The CT high court did NOT say Remington was at fault. If I'm reading this right, they DID DISMISS several parts of the lawsuit against Rem.

They are allowing part of the suit to continue, (in a 4-3 decision) saying THAT PART (the claim about Rem's marketing) does not met their standard for arbitrary dismissal.

Get that? They aren't saying the claim is valid, or that its right to sue Remington, ALL they are saying is that the claim may have its day in court.

The press will make it sound like Remington IS at fault, because they are being sued. This is not what the CT court said. Essentially what they said was that the argument over Remington's responsibility, due to their marketing, meets the legal procedural standards to go to court, under a specific CT state law.

And that the other claims about Remington's responsibility in that same suit, do not meet the legal requirements, and are dismissed.

if I've got it wrong, please, enlighten me...

[TXAZ]

Maybe so 44AMP, but the can of worms is way more open.

And hello Connecticut firearm and other companies. "Wrongful marketing" just made us millionaires because your marketing didn't meet our expectations.

This can of worms does provide new opportunities for all of us:

With the deadeye accuracy implied in their Colt ad, the next time your Colt doesn't put 5 rounds through the same hole at 1,000 yards, you're gonna sue. (And Remington, Wildey, Standard, Mossberg, Sturm Ruger, Wilson and Charter Arms). Guess who's moving out soon.

The next time Synchrony Financial makes a mistake on a credit card bill, you're going to sue for wrongful marketing. In Connecticut.

The next time my Black and Decker drill doesn't go through the wood as quick and smoothly as the advertisement, you're gonna sue. In Connecticut.

The next time Priceline doesn't give the absolutely lowest price, you're going to sue their holding company. In Connecticut.

(Here are 2 really easy ones)
The next time Frontier Communications has an outage, we're all gonna sue.
The next time Charter Communications cable doesn't provide a full (and marketed) 100Mbits up and down, same thing, we're all gonna sue. In Connecticut.

The next time United Rental's backhoe doesn't slice through hard rock like a hot knife through butter, sue. In Connecticut.

The next time Facebook ads for Connecticut aren't perfectly accurate, you're gonna sue them through their remote workers in Bridgeport. In Connecticut.

Etc, etc, etc.

All of these are based (or with facilities/ employees) in Connecticut.

In all seriousness, this can't stand, the businesses in that state (gunners and not) just got put at serious risks for whatever someone else thinks they saw, heard, imagined, hallucinated or wanted from a product ad.

Or, maybe it's the FBI in Connecticut in court for "wrongful marketing" when their leadership states they are "the finest Law Enforcement agency in the world", based on their canned "marketing statements" shadowed by recent testimony of fired officials?

One way or the other, the unforseen consequences are going to backfire on the state.

[zukiphile]

Originally Posted by TXAZ

With the deadeye accuracy implied in their Colt ad, the next time your Colt doesn't put 5 rounds through the same hole at 1,000 yards, you're gonna sue.

I don't want this to read like pedantry, but I think it is important for understanding why CT has landed wide of the mark on this.

If Colt advertised a model as capable of a 1 MOA group with Winchester 62gr ammunition, but the one you bought couldn't, you'd have a valid consumer beef in part because you are the consumer. Congress intended that consumers still have recourse when they are deceived or sold shoddy goods. That's the nature of the exception in the PLCAA allowing state consumer actions against arms manufacturers.

The parties suing in CT aren't consumers, but people injured by the intervening criminal act of a third party bringing exactly the kind of claim prohibited by the PLCAA.

[Aguila Blanca]

Originally Posted by zukiphile

The parties suing in CT aren't consumers, but people injured by the intervening criminal act of a third party bringing exactly the kind of claim prohibited by the PLCAA.

That's a good point, and one that the majority in the Connecticut Supreme Court overlooked (perhaps through ignorance, perhaps due to pursuit of an agenda).

There's also the fact that, technically, the shooter was a "consumer" within the context of the Connecticut law because he didn't buy the gun, his mother did. And he killed her to get at it.

Of course, if the trial really goes down that rabbit hole, it will probably come out that the mother bought it for him because that was the gun he wanted, and that he had access to it at any time because the mother allowed him to have access to wherever the firearms were stored.

[Tom Servo]

The most annoying part of this is, they've already tried this and failed.

The lead attorney, Koskoff, represented the Brady Center when they sued Lucky Gunner in 2017. He did so "on behalf" of Lonnie and Sandy Phillips, who were left holding the bag for over $100,000 in legal fees when Lucky Gunner prevailed.

I'm shocked he has the audacity to be trying this again. There need to be repercussions.

[USNRet93]

Originally Posted by Aguila Blanca

In theory, I agree that it can work both ways. In practice, however, it has been my observation in the course of my 75 years on this orbital spitball we call Earth that -- in general -- it is primarily liberal judges who are prone to folding, bending, twisting and mutilating the law to fit their agendas. Conservative judges, in my experience and observation, are much more likely to forego their personal agendas and apply the law as it is written.

.

Some snipped.
I guess we’ll have to disagree, but I’m ‘only’ 68. I’d say legislation from the bench has been a problem for both sides of the ‘isle’, roughly equally. Both are bad, regardless of whether you agree with their ruling or not.

[steve4102]

Originally Posted by TXAZ

Maybe so 44AMP, but the can of worms is way more open.

And hello Connecticut firearm and other companies. "Wrongful marketing" just made us millionaires because your marketing didn't meet our expectations.

This can of worms does provide new opportunities for all of us:

With the deadeye accuracy implied in their Colt ad, the next time your Colt doesn't put 5 rounds through the same hole at 1,000 yards, you're gonna sue. (And Remington, Wildey, Standard, Mossberg, Sturm Ruger, Wilson and Charter Arms). Guess who's moving out soon.

The next time Synchrony Financial makes a mistake on a credit card bill, you're going to sue for wrongful marketing. In Connecticut.

The next time my Black and Decker drill doesn't go through the wood as quick and smoothly as the advertisement, you're gonna sue. In Connecticut.

The next time Priceline doesn't give the absolutely lowest price, you're going to sue their holding company. In Connecticut.

(Here are 2 really easy ones)
The next time Frontier Communications has an outage, we're all gonna sue.
The next time Charter Communications cable doesn't provide a full (and marketed) 100Mbits up and down, same thing, we're all gonna sue. In Connecticut.

The next time United Rental's backhoe doesn't slice through hard rock like a hot knife through butter, sue. In Connecticut.

The next time Facebook ads for Connecticut aren't perfectly accurate, you're gonna sue them through their remote workers in Bridgeport. In Connecticut.

Etc, etc, etc.

All of these are based (or with facilities/ employees) in Connecticut.

From Franks link.

Connecticut law does not permit advertisements that promote or encourage violent, criminal behavior.

I don't think the scenarios you presented fall under CT law.

[TXAZ]

Why not Steve? They’re all companies located in or with facilities/ personnel in the same state now claiming “wrongful marketing” as a tort.