Connecticut Supreme Court Ruling in Soto v. Bushmaster Firearms International, et al. Expands Scope of CUTPA

March 15, 2019 Advisory

The Connecticut Supreme Court issued a ruling yesterday in Soto v. Bushmaster Firearms International, et al. that may greatly expand the reach of Connecticut’s principal consumer protection and business litigation statute, the Connecticut Unfair Trade Practices Act (“CUTPA”), to include business conduct not previously generally understood to be subject to CUTPA. CUTPA is Connecticut’s version of the Federal Trade Commission Act, but unlike the FTC Act, CUTPA provides for private litigation, in addition to government enforcement. The implications of the Soto decision for companies that do business in Connecticut are profound and far-reaching.

The plaintiffs in the Soto suit were administrators of the estates of several victims of the mass shooting at the Sandy Hook Elementary School in December 2012. They alleged that certain advertising and marketing by the firearms manufacturers was “unethical, oppressive, immoral and unscrupulous” within the meaning of CUTPA, and that the advertising and marketing promoted the illegal offensive use of the rifle used in the killings.

Importantly, the Court held the following: (1) plaintiffs in a CUTPA action need not have a “commercial relationship,” i.e., a business relationship with the defendants; (2) personal injuries are a type of harm cognizable under CUTPA; (3) the Connecticut Product Liability Act does not preclude a CUTPA claim based on the allegedly wrongful marketing of a firearm; and (4) that continuous advertising by defendants to the time of filing permits claims to survive despite CUTPA’s three year statute of limitations.

Each one of these separate CUTPA holdings expands the scope of CUTPA beyond its current contours. Moreover, the evisceration by the Court of the commercial relationship test will, in our view, broaden the reach of CUTPA so dramatically that we expect to see an explosion of new types of CUTPA claims against businesses.

CUTPA gives private litigants significant incentives. It provides not only for compensatory damages, but also, in the discretion of the court, for punitive damages and attorney’s fees. This is in addition to CUTPA investigations and suits undertaken by Connecticut’s government enforcers, the Connecticut Department of Consumer Protection, and the Connecticut Office of the Attorney General.

For further information, please contact Bob Langer, Co-chair of the firm’s Antitrust & Consumer Protection Practice Group and co-author of the leading CUTPA  treatise, or Jonathan Freiman, Chair of the firm’s Appellate Practice Group.