Calguns.net  

Home My iTrader Join the NRA Donate to CGSSA Sponsors CGN Google Search
CA Semiauto Ban(AW)ID Flowchart CA Handgun Ban ID Flowchart CA Shotgun Ban ID Flowchart
Go Back   Calguns.net > POLITICS, LITIGATION AND ACTIVISM > National 2nd Amend. Political & Legal Discussion
Register FAQ Members List Calendar Mark Forums Read

National 2nd Amend. Political & Legal Discussion Discuss national gun rights and 2A related political topics here. All advice given is NOT legal counsel.

Reply
 
Thread Tools Display Modes
  #1  
Old 05-14-2019, 4:05 PM
TrappedinCalifornia's Avatar
TrappedinCalifornia TrappedinCalifornia is offline
Senior Member
 
Join Date: Jan 2018
Location: What Used to be a Great State
Posts: 880
iTrader: 0 / 0%
Default Kavanaugh's Apple Decision - What Might It Mean For The PLCAA?

I vacillated on whether to place this in National 2nd Amendment Political & Legal Discussion or General Gun Discussions. While this is based on actual litigation, it's asking for some speculation on potential 2nd Amendment litigation. I assumed that the 'legal minds' on Calguns would be more likely to be found in this section; but, if the moderators think it 'off topic' due to the lack of an actual case...

I haven't fully read the decision in the Apple, Inc. vs Pepper case. What jumped out at me from a National Review article on Kavanaugh siding with the four, Liberal Justices is the Gorsuch quote from the dissent...

Quote:
Justice Neil Gorsuch, writing for the Court’s conservative dissenters, argued that the majority relied on “convoluted pass-on theories” in which damages to the consumer that are actually inflicted by the app developers can be passed on to a third party, namely Apple.

“If the proximate cause line is no longer to be drawn at the first injured party, how far down the causal chain can a plaintiff be and still recoup damages?” he wrote.
What Gorsuch actually penned about the "pass-on" issue was, in part...

Quote:
Yet today the Court lets a pass-on case proceed. It does so by recasting Illinois Brick as a rule forbidding only suits where the plaintiff does not contract directly with the defendant. This replaces a rule of proximate cause and economic reality with an easily manipulated and formalistic rule of contractual privity. That’s not how antitrust law is supposed to work, and it’s an uncharitable way of treating a precedent which— whatever its flaws—is far more sensible than the rule the Court installs in its place... The lawsuit before us depends on just the sort of pass-on theory that Illinois Brick forbids... it will raise difficult questions about apportionment of damages between app developers and their customers, along with the risk of duplicative damages awards.
Gorsuch then details some of the intricate questions that would come up and what the Court would have to unravel. What he said regarding the 'proximate cause line' was...

Quote:
If the proximate cause line is no longer to be drawn at the first injured party, how far down the causal chain can a plaintiff be and still recoup damages? Must all potential claimants to the single monopoly rent be gathered in a single lawsuit as necessary parties (and if not, why not)? Without any invitation or reason to revisit our precedent, and with so many grounds for caution, I would have thought the proper course today would have been to afford Illinois Brick full effect, not to begin whittling it away to a bare formalism.
Bearing in mind that the PLCAA offers six exceptions which permit lawsuits, what are your thoughts on the possibilities when Gorsuch asks: "How far down the causal chain can a plaintiff be and still recoup damages?"

Might it have no impact in that the decision only allows the case to proceed and is not based on the actual merits of the case - OR - is it a potential 'camel's nose under the tent' when it comes to circumventing the PLCAA?

ETA: Part of the concern would be that this decision might allow for a broader scope of discovery, giving plaintiffs access to records which could potentially prove as, if not more, useful in the PR battle as it would in the courtroom. How might that potential play into settlement vs. litigation? Remember, the objective isn't always about 'winning the case' so much as collecting information for future use.

Last edited by TrappedinCalifornia; 05-14-2019 at 4:45 PM..
Reply With Quote
  #2  
Old 05-14-2019, 6:04 PM
PMACA_MFG's Avatar
PMACA_MFG PMACA_MFG is offline
Senior Member
 
Join Date: Sep 2015
Location: California
Posts: 617
iTrader: 0 / 0%
Default

Think it means we can class action sue the US government for the 10% firearm excise tax we pay when buying guns from its federally licensed gun stores. Damn monopolists.
__________________
Reply With Quote
  #3  
Old 05-14-2019, 6:32 PM
TrappedinCalifornia's Avatar
TrappedinCalifornia TrappedinCalifornia is offline
Senior Member
 
Join Date: Jan 2018
Location: What Used to be a Great State
Posts: 880
iTrader: 0 / 0%
Default

I grant that it's not a simple question and it's a bit... 'backward.' But, if the definition of plaintiffs is broadened, how might that increase the potential vulnerability of manufacturers/wholesalers/retailers under the cited exceptions to the PLCAA?

If such suits are allowed to proceed, with an indeterminate 'proximate cause line,' how might that open discovery wider than manufacturers would be willing to go versus 'settling' a suit? Bear in mind that the concluding paragraph on the six exceptions piece linked to in the OP states...

Quote:
In the past year, however, at least one court has permitted a lawsuit to proceed under the predicate exception, finding that provisions of the Gun Control Act are “applicable to the sale or marketing of guns,” and therefore may be used as the underlying predicate statute to assert a state tort law claim against a federal firearms licensee. Yet, whether the plaintiffs are able to prove their claims will likely depend on their success in the discovery process, in which case they may face other procedural obstacles to obtaining information.
According to the piece, the predicate exception is...

Quote:
An action in which a manufacturer or seller of a qualified product violated a state or federal law applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought including:

(I) any case in which the manufacturer or seller knowingly made any false entry in, or failed to make appropriate entry in, any record required to be kept under Federal or State law with respect to the qualified product, or aided, abetted, or conspired with any person in making any false or fictitious oral or written statement with respect to any fact material to the lawfulness of the sale or other disposition of a qualified product; or

(II) any case in which the manufacturer or seller aided, abetted, or conspired with any other person to sell or otherwise dispose of a qualified product, knowing, or having reasonable cause to believe, that the actual buyer of the qualified product was prohibited from possessing or receiving a firearm or ammunition under 18 U.S.C. § 922 (g) or (n).
This can be found in the PLCAA under - (5) Qualified Civil Liability Action.

Last edited by TrappedinCalifornia; 05-14-2019 at 6:38 PM..
Reply With Quote
  #4  
Old 05-16-2019, 10:46 AM
Chewy65 Chewy65 is offline
Veteran Member
 
Join Date: Dec 2013
Posts: 3,742
iTrader: 0 / 0%
Default

See the Connecticut Supreme Court decision in Soto v. Bushmaster. There a case brought by victims of the Sandy Hook shooting was allowed to proceed against the manufacturers and marketers of an AR-15 on the ground that its unethical and irresponsible marketing for criminal conduct violated the state Unfair Trade Practices Act, and that was a predicate exception to PLCAA immunity. This was so even though the AR-15 type was not sold to the shooter, but to his mother, and the victims were of course not in privity with the defendants.

The decision is all about whether the predicate exception is restricted to the knowing violation of firearms specific statutes.

A petition for cert to SCOTUS is expected to shortly be filed.
__________________
This is neither legal advice nor a legal opinion.
Being on “inactive status” with the State Bar of California I cannot practice law. Were I "active", you would not be entitled to rely on my posts because you are not my client.
Were I practicing, an attorney client relationship could only be created in a writing by both the client and myself. Not by a post, private message, or email.
I never practiced criminal nor firearms law.Do not rely on my post, but consult your own attorney.

Last edited by Chewy65; 05-16-2019 at 10:49 AM..
Reply With Quote
  #5  
Old 05-16-2019, 9:44 PM
TrappedinCalifornia's Avatar
TrappedinCalifornia TrappedinCalifornia is offline
Senior Member
 
Join Date: Jan 2018
Location: What Used to be a Great State
Posts: 880
iTrader: 0 / 0%
Default

Quote:
Originally Posted by Chewy65 View Post
A petition for cert to SCOTUS is expected to shortly be filed.
Hopefully, SCOTUS does grant cert and reverses the decision. Why? Because it, essentially, hinges on this...

Quote:
...this court's review of the legislative history of PLCAA led it to conclude that Congress did not intend to limit the scope of the predicate exception to violations of firearms specific laws or to confer immunity from all claims alleging that firearms sellers violated laws governing unfair trade practices, as the sponsor and cosponsors of the proposed legislation that became PLCAA emphasized that their primary concern was not with actions such as the present one, in which individual plaintiffs who have been harmed in a specific incident of gun violence seek to hold the sellers responsible for specific misconduct in selling the weapons involved, but, rather, sought to preclude the rising number of frivolous actions brought by municipalities and anti-gun activists that target the entire firearms industry, and, furthermore, many legislators stated or implied that the only actions that would be barred by PLCAA would be ones in which a firearms manufacturer or seller bore no responsibility or blame for the misuse of its firearms in the commission of a crime or for the plaintiff's injuries, and sought to foreclose only novel legal theories and unprecedented tort theories, unlike the legal theories advanced in the present case, that had been developed by anti-gun activists with the goal of putting firearms sellers out of business...
In short, the Connecticut Supreme Court decided that, in its view, a case might be made that the AR-15 should not be marketed to civilians since it is a 'military style' weapon and such a claim is not 'unique or frivolous,' can thereby be 'made' to fit within the statute of limitations, etc. All that meaning, advertising by the manufacturer is an "unfair trade practice" under the Connecticut law and, thereby, 'fit' the predicate exception of the PLCAA. As a result, the Court determined that the plaintiffs have standing, even though the other theories advanced by the plaintiffs were all 'correctly' denied as, essentially, 'frivolous' or 'inconsistent' with existing law.

The idea that a case might be made that the AR-15 should not be marketed to civilians since it is a 'military style' weapon seems to be a 'reach' based on the test proposed in Heller vis a vis 'common use.' See the concurring opinion of Alito and Thomas in Caetano...

Quote:
... the relative dangerousness of a weapon is irrelevant when the weapon belongs to a class of arms commonly used for lawful purposes... If Heller tells us anything, it is that firearms cannot be categorically prohibited just because they are dangerous...
It also ignores Thomas' dissent of the denial of cert in Friedman v Highland Park, a dissent signed on to by Scalia...

Quote:
...The question under Heller is not whether citizens have adequate alternatives available for self-defense. Rather, Heller asks whether the law bans types of firearms commonly used for a lawful purpose—regardless of whether alternatives exist... And Heller draws a distinction between such firearms and weapons specially adapted to unlawful uses and not in common use, such as sawed-off shotguns... The City’s ban is thus highly suspect because it broadly prohibits common semiautomatic firearms used for lawful purposes. Roughly five million Americans own AR-style semiautomatic rifles... The overwhelming majority of citizens who own and use such rifles do so for lawful purposes, including self-defense and target shooting... Under our precedents, that is all that is needed for citizens to have a right under the Second Amendment to keep such weapons...
At least that's my understanding of the Connecticut decision. The real question will be whether Roberts, Gorsuch, and Kavanaugh see things the same way. This is part of my concern with regard to Kavanaugh's position in Apple, Inc. vs Pepper. Again, citing Gorsuch's dissent...

Quote:
This replaces a rule of proximate cause and economic reality with an easily manipulated and formalistic rule of contractual privity... Unless Congress provides otherwise, this Court generally reads statutory causes of action as “limited to plaintiffs whose injuries are proximately caused by violations of the statute.” ... That proximate cause requirement typically bars suits for injuries that are “derivative of misfortunes visited upon a third person by the defendant’s acts.” ... So, for example, if a defendant’s false advertising causes harm to one of its competitors, the competitor can sue the false advertiser under the Lanham Act. But if the competitor is unable to pay its rent as a result, the competitor’s landlord can’t sue the false advertiser, because the landlord’s harm derives from the harm to the competitor... The lawsuit before us depends on just the sort of pass-on theory that Illinois Brick forbids...
This is why I say the Connecticut Supreme Court decision hinges on their perception that a case could be made that the AR-15 should not be marketed to civilians. As they state in Soto v. Bushmaster...

Quote:
The defendants could not prevail on their claim that construing a statute of general applicability such as CUTPA to be a predicate statute would lead to the absurd result that, if the predicate exception were to encompass every statute that might be capable of being applied to the sale or manufacturing of firearms, then virtually any action seeking to hold firearms manufacturers or sellers liable for third-party gun violence could proceed; the plaintiffs' wrongful marketing claims may proceed without crippling PLCAA, as those claims allege only that one specific family of firearms sellers advertised one particular assault weapon in an uniquely unscrupulous manner, promoting its suitability for illegal, offensive assaults.
In other words, if contractual privity is expanded in the manner being suggested by Gorsuch through pass-on theory now ruled to be 'valid' by SCOTUS and such is applied to the predicate exception of the PLCAA, then wouldn't that mean the defendants in Soto v. Bushmaster were actually correct that...

Quote:
...if the predicate exception were to encompass every statute that might be capable of being applied to the sale or manufacturing of firearms, then virtually any action seeking to hold firearms manufacturers or sellers liable for third-party gun violence could proceed...
It's gonna be interesting.
Reply With Quote
  #6  
Old 05-17-2019, 11:57 AM
fiddletown's Avatar
fiddletown fiddletown is offline
Veteran Member
 
Join Date: Jun 2007
Location: San Francisco Bay Area
Posts: 4,760
iTrader: 1 / 100%
Default

Quote:
Originally Posted by TrappedinCalifornia View Post
Hopefully, SCOTUS does grant cert and reverses the decision. Why? Because it, essentially, [URL="https://casetext.com/case/soto-v-bushmaster-firearms-intl-llc-1"]...In short, the Connecticut Supreme Court decided that, in its view, a case might be made that the AR-15 should not be marketed to civilians since it is a 'military style' weapon and such a claim is not 'unique or frivolous,' can thereby be 'made' to fit within the statute of limitations, etc. ....
No, the Connecticut Supreme Court decided no such thing. See my outline of what the Connecticut Supreme Court actually did.
__________________
"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper
Reply With Quote
  #7  
Old 05-17-2019, 5:44 PM
TrappedinCalifornia's Avatar
TrappedinCalifornia TrappedinCalifornia is offline
Senior Member
 
Join Date: Jan 2018
Location: What Used to be a Great State
Posts: 880
iTrader: 0 / 0%
Default

Quote:
Originally Posted by fiddletown View Post
No, the Connecticut Supreme Court decided no such thing. See my outline of what the Connecticut Supreme Court actually did.
So... Let me see...

Quote:
Originally Posted by TrappedinCalifornia
As a result, the Court determined that the plaintiffs have standing, even though the other theories advanced by the plaintiffs were all 'correctly' denied as, essentially, 'frivolous' or 'inconsistent' with existing law.
Quote:
Originally Posted by Fiddletown
On appeal the Connecticut Supreme Court (CSC) mostly agreed with the trial court.
Quote:
Originally Posted by TrappedinCalifornia
In short, the Connecticut Supreme Court decided that, in its view, a case might be made that the AR-15 should not be marketed to civilians since it is a 'military style' weapon and such a claim is not 'unique or frivolous,' can thereby be 'made' to fit within the statute of limitations, etc. All that meaning, advertising by the manufacturer is an "unfair trade practice" under the Connecticut law and, thereby, 'fit' the predicate exception of the PLCAA. As a result, the Court determined that the plaintiffs have standing, even though the other theories advanced by the plaintiffs were all 'correctly' denied as, essentially, 'frivolous' or 'inconsistent' with existing law.
Quote:
Originally Posted by Fiddletown
However, the CSC disagreed with the trial court on one point. The CSC writes:

Quote:
....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...
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.
Ummmm.... Not sure how we're differing here other than I said the Connecticut Supreme Court decided that, in its view, a case might be made and you stated that at this stage those facts are assumed to be true, but would still have to be proven in court; which is the point of allowing the case to proceed. In other words, despite a difference in verbiage, we seem to be saying, essentially, the same thing; though your's is presented more in a measured, 'carefully caveated' legal context and mine in a more 'colloquial' one.

Being allowed to proceed under that exception to the PLCAA is the very point of this thread and my question. If the Apple, Inc. vs. Pepper decision allows for the expansion of who qualifies as a plaintiff (e.g., what can be utilized as a legal theory to allow cases to proceed under the exceptions in the PLCAA), doesn't that increase the vulnerability of manufacturers/wholesalers/retailers, specifically bolstering the concern presented by the defendants in the Solo vs. Bushmaster case...

Quote:
...if the predicate exception were to encompass every statute that might be capable of being applied to the sale or manufacturing of firearms, then virtually any action seeking to hold firearms manufacturers or sellers liable for third-party gun violence could proceed...
Simply because the facts/argument have to be proven later does not preclude discovery and, in fact, ensures that the scope of the discovery is potentially expanded to a point (depending on which statute[s] are used) that defendants are 'encouraged' to settle rather than allow the suits to play out to a point of making things 'more public' than they'd be comfortable with. From the OP (emphasis added)...

Quote:
Originally Posted by TrappedinCalifornia
Might it have no impact in that the decision only allows the case to proceed and is not based on the actual merits of the case - OR - is it a potential 'camel's nose under the tent' when it comes to circumventing the PLCAA?

ETA: Part of the concern would be that this decision might allow for a broader scope of discovery, giving plaintiffs access to records which could potentially prove as, if not more, useful in the PR battle as it would in the courtroom. How might that potential play into settlement vs. litigation? Remember, the objective isn't always about 'winning the case' so much as collecting information for future use.
Reply With Quote
  #8  
Old 05-17-2019, 7:50 PM
fiddletown's Avatar
fiddletown fiddletown is offline
Veteran Member
 
Join Date: Jun 2007
Location: San Francisco Bay Area
Posts: 4,760
iTrader: 1 / 100%
Default

Quote:
Originally Posted by TrappedinCalifornia View Post
... Not sure how we're differing here other than I said the Connecticut Supreme Court decided that, in its view, a case might be made and you stated that at this stage those facts are assumed to be true, but would still have to be proven in court; which is the point of allowing the case to proceed. In other words, despite a difference in verbiage, we seem to be saying, essentially, the same thing; though your's is presented more in a measured, 'carefully caveated' legal context and mine in a more 'colloquial' one....
No. This is a highly technical point, and your attempt at paraphrasing misses the mark.

The Connecticut Supreme Court found that:
  1. The allegations in the complaint (which at this stage must be taken as true) state a claim under Connecticut advertising law; and

  2. A claim under that consumer protection law is within the exceptions to the immunity provided under the PLCAA.

Note that one exception to PLCAA immunity is (15 USC 7903(5)(A)(iii), emphasis added):
Quote:
...(iii) an action in which a manufacturer or seller of a qualified product 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 harm for which relief is sought,...
Quote:
Originally Posted by TrappedinCalifornia View Post
...If the Apple, Inc. vs. Pepper decision allows for the expansion of who qualifies as a plaintiff (e.g., what can be utilized as a legal theory to allow cases to proceed under the exceptions in the PLCAA), doesn't that increase the vulnerability of manufacturers/wholesalers/retailers, specifically bolstering the concern presented by the defendants in the Solo vs. Bushmaster case...
I doubt it. They're different issues. But if anyone wants to believe that, they're welcome to. We'll see when/if SCOTUS takes the interlocutory appeal on the PLCAA question.

If SCOTUS takes this up now, why don't you get copies of the appellant's and appellee's opening briefs and see if either of them cite Apple and for what purpose in what context. But it's pretty pointless to try to speculate about that now.

Quote:
Originally Posted by TrappedinCalifornia View Post
.....Simply because the facts/argument have to be proven later does not preclude discovery and, in fact, ensures that the scope of the discovery is potentially expanded to a point (depending on which statute[s] are used) that defendants are 'encouraged' to settle rather than allow the suits to play out to a point of making things 'more public' than they'd be comfortable with...
Well yes, but it is what it is.
  1. The reality is that an action based on a claim that, "... a manufacturer or seller of a qualified product 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 harm for which relief is sought,..." is in fact outside the immunity of the PLCAA.

  2. The Connecticut Supreme Court concluded that the plaintiff alleged facts (which must be assumed at this stage to be true) that state a claim that Bushmaster marketed the rifle in a way that violated Connecticut law.

  3. So unless SCOTUS takes this up and concludes that the interpretation and application of that PLCAA exception by the Connecticut Supreme Court was incorrect, the litigation will proceed, including to discovery. And I don't see Apple being a factor in that decision.
__________________
"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper
Reply With Quote
  #9  
Old 05-17-2019, 10:31 PM
TrappedinCalifornia's Avatar
TrappedinCalifornia TrappedinCalifornia is offline
Senior Member
 
Join Date: Jan 2018
Location: What Used to be a Great State
Posts: 880
iTrader: 0 / 0%
Default

Quote:
Originally Posted by fiddletown View Post
No. This is a highly technical point, and your attempt at paraphrasing misses the mark.

The Connecticut Supreme Court found that:
  1. The allegations in the complaint (which at this stage must be taken as true) state a claim under Connecticut advertising law; and

  2. A claim under that consumer protection law is within the exceptions to the immunity provided under the PLCAA.

Note that one exception to PLCAA immunity is (15 USC 7903(5)(A)(iii), emphasis added):
Again, other than it being part of a 3-post 'conversation' rather than in a concise, single post 'outline,' how is that different than (emphasis added)...

Quote:
Originally Posted by TrappedinCalifornia
Bearing in mind that the PLCAA offers six exceptions which permit lawsuits, what are your thoughts on the possibilities when Gorsuch asks: "How far down the causal chain can a plaintiff be and still recoup damages?"

Might it have no impact in that the decision only allows the case to proceed and is not based on the actual merits of the case - OR - is it a potential 'camel's nose under the tent' when it comes to circumventing the PLCAA?...

According to the piece, the predicate exception is...

Quote:
An action in which a manufacturer or seller of a qualified product violated a state or federal law applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought including:

(I) any case in which the manufacturer or seller knowingly made any false entry in, or failed to make appropriate entry in, any record required to be kept under Federal or State law with respect to the qualified product, or aided, abetted, or conspired with any person in making any false or fictitious oral or written statement with respect to any fact material to the lawfulness of the sale or other disposition of a qualified product; or

(II) any case in which the manufacturer or seller aided, abetted, or conspired with any other person to sell or otherwise dispose of a qualified product, knowing, or having reasonable cause to believe, that the actual buyer of the qualified product was prohibited from possessing or receiving a firearm or ammunition under 18 U.S.C. § 922 (g) or (n).
This can be found in the PLCAA under - (5) Qualified Civil Liability Action...

In short, the Connecticut Supreme Court decided that, in its view, a case might be made that the AR-15 should not be marketed to civilians since it is a 'military style' weapon and such a claim is not 'unique or frivolous,' can thereby be 'made' to fit within the statute of limitations, etc. All that meaning, advertising by the manufacturer is an "unfair trade practice" under the Connecticut law and, thereby, 'fit' the predicate exception of the PLCAA. As a result, the Court determined that the plaintiffs have standing, even though the other theories advanced by the plaintiffs were all 'correctly' denied as, essentially, 'frivolous' or 'inconsistent' with existing law.
What did I miss?

It might be 'technical,' though 'hyper' may be a bit of an exaggeration. It's simply the type of 'gaming' or 'brainstorming' lawyers use in developing an, hopefully, viable theory for the case; i.e., what theory could 'we' use to gain standing, then 'make our case,' on that basis, in court?

cont'd.
Reply With Quote
  #10  
Old 05-17-2019, 10:32 PM
TrappedinCalifornia's Avatar
TrappedinCalifornia TrappedinCalifornia is offline
Senior Member
 
Join Date: Jan 2018
Location: What Used to be a Great State
Posts: 880
iTrader: 0 / 0%
Default

Quote:
Originally Posted by fiddletown
I doubt it. They're different issues. But if anyone wants to believe that, they're welcome to. We'll see when/if SCOTUS takes the interlocutory appeal on the PLCAA question.
That addresses the question asked, sort of. You doubt it and we'll find out. Okay.

Quote:
Originally Posted by fiddletown
If SCOTUS takes this up now, why don't you get copies of the appellant's and appellee's opening briefs and see if either of them cite Apple and for what purpose in what context. But it's pretty pointless to try to speculate about that now.
I don't know the status of the appeal or if one has been made, yet. Though Chewy65 said...

Quote:
Originally Posted by Chewy65
A petition for cert to SCOTUS is expected to shortly be filed.
Because Apple, Inc. vs. Pepper was decided 4 days ago (13 May), neither side would have cited it before now. Although, I suppose, it could come up in that appeal, I'm dubious Bushmaster would bring it up and Soto's attorneys may not want it to hinge solely or largely on that decision. It also misses the point.

Chewy65 brought up Soto vs. Bushmaster as the example alluded to in a quote I provided in Post #3. Aside from, as you say, 'paraphrasing' the rationale behind allowing the case to proceed, what I called attention to was the argument made by Bushmaster in the case...

Quote:
...if the predicate exception were to encompass every statute that might be capable of being applied to the sale or manufacturing of firearms, then virtually any action seeking to hold firearms manufacturers or sellers liable for third-party gun violence could proceed...
Is this not akin to what Gorsuch is arguing in his dissent to Apple, Inc. vs. Pepper; i.e., where do we draw the line and aren't you now 'allowing' for the courts to entertain 'any' argument for plaintiff-status so long as it can be made theoretically possible? Isn't that what Gorsuch spent time detailing...

Quote:
Because this is exactly the kind of “pass-on theory” Illinois Brick rejected, it should come as no surprise that the concerns animating that decision are also implicated. Like other pass-on theories, plaintiffs’ theory will necessitate a complex inquiry...
Put another way...

Quote:
Originally Posted by TrappedinCalifornia
Simply because the facts/argument have to be proven later does not preclude discovery and, in fact, ensures that the scope of the discovery is potentially expanded to a point (depending on which statute[s] are used) that defendants are 'encouraged' to settle rather than allow the suits to play out to a point of making things 'more public' than they'd be comfortable with.
Something you then acknowledge...

Quote:
Originally Posted by fiddletown
Well yes, but it is what it is.

1.) The reality is that an action based on a claim that, "... a manufacturer or seller of a qualified product 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 harm for which relief is sought,..." is in fact outside the immunity of the PLCAA.
Isn't that the concern expressed in Soto vs. Bushmaster and isn't that what Gorsuch is warning about in a broader context? If, using virtually any statute (State or Federal) that is, theoretically, seen as capable of being applied through a complex inquiry by the courts, doesn't that open the 'universe' of potential plaintiffs and the scope of possible discovery to the point of being virtually 'unlimited?'

You see, I think you've got an incorrect perception going...

Quote:
Originally Posted by fiddletown
(2.)The Connecticut Supreme Court concluded that the plaintiff alleged facts (which must be assumed at this stage to be true) that state a claim that Bushmaster marketed the rifle in a way that violated Connecticut law.
I think we've already established that's precisely what I said; albeit in a a more colloquial or 'conversational' way rather than a perfunctory and carefully 'caveated' outline.

Quote:
Originally Posted by fiddletown
(3.)So unless SCOTUS takes this up and concludes that the interpretation and application of that PLCAA exception by the Connecticut Supreme Court was incorrect, the litigation will proceed, including to discovery. And I don't see Apple being a factor in that decision.
I never said it would be a factor in Soto vs. Bushmaster. That wasn't the question. Once again...
  1. Apple, Inc. vs. Pepper now allows for a broader definition of "plaintiff" in terms of who can be deemed as such for the purposes of allowing a case to proceed. A decision on the merits of the case will then depend on the facts presented; including those made as part of the discovery based on the plaintiffs and the statutes under which they were granted standing.
  2. Gorsuch (along with Alito and Roberts) is warning that the majority decision in Apple, Inc. vs. Pepper - replaces a rule of proximate cause and economic reality with an easily manipulated and formalistic rule of contractual privity.
  3. This seems akin to the argument made, earlier, in the Soto vs. Bushmaster case - ...if the predicate exception were to encompass every statute that might be capable of being applied to the sale or manufacturing of firearms, then virtually any action seeking to hold firearms manufacturers or sellers liable for third-party gun violence could proceed...

As a result, this seems to beg the question...

Does the Apple, Inc. vs. Pepper decision provide a potential 'camel's nose under the tent' when it comes to circumventing the PLCAA?
  • Put another way, rather than having a 'standard' accepted by SCOTUS, you now have "an easily manipulated and formalistic rule of contractual privity" which potentially opens the door for use of "every statute [or, at the very least, exponentially more statutes] that might be capable of being applied to the sale or manufacturing of firearms" in the determination of who is granted standing as a plaintiff.
  • In allowing this in the broader scope, didn't the four Liberal Justices and Kavanaugh open the door, in a narrower scope, to circumventing the PLCAA and gaining access to 'discoverable' information previously limited by who could be granted plaintiff status? (As an example, how might this 'broadening' of the definition for plaintiff impact any appeal of Soto vs. Bushmaster in terms of whether the Connecticut Supreme Court was correct, even if 'prematurely,' in its granting of standing?)
  • Will this potentially 'encourage' manufacturers/wholesalers/retailers to settle, rather than litigate cases in an attempt to preclude discovery or, at the very least, limit the scope of discovery? If so, what might that portend?

Last edited by TrappedinCalifornia; 05-17-2019 at 10:40 PM..
Reply With Quote
  #11  
Old 05-18-2019, 12:21 AM
fiddletown's Avatar
fiddletown fiddletown is offline
Veteran Member
 
Join Date: Jun 2007
Location: San Francisco Bay Area
Posts: 4,760
iTrader: 1 / 100%
Default

Enjoy your speculating. I'm not interested in extending my participation in this nebulous discussion.

TrappedinCalifornia, I don't think you'll get it, no matter what I do, so believe what you want.
__________________
"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper
Reply With Quote
  #12  
Old 05-18-2019, 3:02 AM
TrappedinCalifornia's Avatar
TrappedinCalifornia TrappedinCalifornia is offline
Senior Member
 
Join Date: Jan 2018
Location: What Used to be a Great State
Posts: 880
iTrader: 0 / 0%
Default

Quote:
Originally Posted by fiddletown View Post
Enjoy your speculating. I'm not interested in extending my participation in this nebulous discussion.

TrappedinCalifornia, I don't think you'll get it, no matter what I do, so believe what you want.
Fiddletown - I respect your contributions. However, that's a cop out. You have not shown anything that I missed. In fact, we used almost the same language and the same passage from the PLCAA, in presenting what the Connecticut Supreme Court's decision was about; the difference being in tone. If what I'm supposed to 'get' is that they 'assumed the validity of the facts' rather than 'decided that the facts supported'... then you're arguing a distinction without a difference in terms of proceeding with the case from where they are, particularly given my emphasis on their not having decided on the merits of the case.

Otherwise, again, I don't see where the difference is. My impression, thus far, is that you saw a piece of what I said, came to a false premise, then argued from that point. Once I unwound that premise and highlighted the question, you've shifted to the thought that I won't get it; yet, you still haven't provided anything specific that I didn't already state.

Insofar as what I believe... again, you are laboring under a false premise. Where did I say I believe anything? I asked a series of related questions.

So far, your only direct reply to the actual question is... You doubt it and we'll find out, otherwise, it's speculation. Which also happens to be what I admitted in the second sentence of the OP...

Quote:
Originally Posted by TrappedinCalifornia
While this is based on actual litigation, it's asking for some speculation on potential 2nd Amendment litigation.
The only other thing you've said, directly related to the question rather than trying to address a false impression of what I said about Soto vs. Bushmaster, is...

Quote:
Originally Posted by TrappedinCalifornia
I doubt it. They're different issues.
The specifics may be different, marketing vs. direct purchasers. However, the concept is similar in that it expands, actually replaces, the 'rule' by which plaintiffs can be defined.

If the majority on SCOTUS is predisposed toward an expansive interpretation of how courts define or can define plaintiffs, what might that mean in terms of how they 'interpret' the predicate exception in the PLCAA? As argued in Soto vs. Bushmaster, prior to the decision in Apple Inc., vs. Pepper, couldn't such an 'expansive paradigm,' using what Gorsuch declares is an easily manipulated and formalistic rule of contractual privity, requiring 'complex inquiry,' be potentially used to construe virtually any action seeking to hold firearms manufacturers or sellers liable for third-party gun violence as sufficient grounds to grant standing based on myriad State and Federal Statutes?

If not, why not?

Privity of Contract refers to...

Quote:
...relationship between the parties to a contract which allows them to sue each other but prevents a third party from doing so. It is a doctrine of contract law that prevents any person from seeking the enforcement of a contract, or suing on its terms, unless they are a party to that contract. As a general rule, a contract cannot confer rights or impose obligations arising under it on any person except the parties to it. However, the requirement of privity has been relaxed under modern laws. Doctrines of implied warranty and strict liability allow a third-party beneficiary or other foreseeable user to sue the seller of a defective product.
As an example, staying with a case that's already been beaten to death in this thread, according to The National Law Review (see also the Connecticut Law Tribune), in the case of Soto vs. Bushmaster...

Quote:
...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...
What did the Connecticut Supreme Court say about the commercial relationship vis a vis CUTPA?

Quote:
The trial court improperly struck the plaintiffs’ claims under CUTPA on the ground that the plaintiffs lacked standing because they were third party victims who did not have a consumer or commercial relationship with the defendant...this court concluded that CUTPA authorizes any person who has suffered an ascertainable financial loss caused by an unfair trade practice to bring an action under CUTPA, regardless of whether they had a business relationship with the person or entity that engaged in the prohibited practice; moreover, prior case law on which the trial court had relied in striking the plaintiffs’ CUTPA claims for lack of standing did not recognize a business relationship requirement...
In other words, the Connecticut Supreme Court appears to be trying to couch this as separate from 'contract privity,' then launch into a 'complex' (parsimonious and somewhat speculative) inquiry into how the Congressional intent regarding the predicate exception of the PLCAA did not exclude CUTPA, but, to my reading, still 'inferred' a relationship...

Quote:
The trial court correctly concluded that CUTPA, as applied to the plaintiffs’ allegations, fell within PLCAA’s ‘‘predicate’’ exception to immunity for civil actions alleging that a firearms manufacturer or seller knowingly violated a state or federal statute ‘‘applicable to the sale or marketing of [a firearm], and the violation was a proximate cause of the harm for which relief [was] sought,’’ and, accordingly, PLCAA did not bar the plaintiffs’ wrongful death claims predicated on the theory that the defendants violated CUTPA by marketing the rifle in question to civilians for criminal purposes and that those wrongful marketing tactics caused or contributed to the decedents’ injuries...
The contractual relationship? The product is 'warrantied' as fit for the particular purpose; a contractual relationship which can be expressed or, more normally, implied. If the advertising is in violation of CUTPA due to the marketing tactics expressing or implying a fitness for a particular purpose and that purpose was deemed 'illegal' under CUTPA, contributing directly to the deaths and injuries, then there does exist a 'commercial' or 'contractual' relationship of a sort.

As I said, this preceded Apple, Inc. vs. Pepper. But, the expansiveness is similar in terms of defining who qualifies as a plaintiff; i.e., creating a 'new' and potentially 'unique' methodology in how a court may determine standing in any, given case. In a way, it could be argued that SCOTUS potentially just gave permission for the Connecticut Supreme Court to do what they did prior to the SCOTUS decision for, as Gorsuch penned: "...it’s an uncharitable way of treating a precedent which—whatever its flaws—is far more sensible than the rule the Court installs in its place..."

So... If you're saying they're different and one doesn't apply to the other, you are correct in terms of the specifics. However, isn't it possible that the similarities in terms of the thought process - 'complex analysis' in lieu of precedent and common law - are such that it is almost inviting 'creativity' in determining the status of plaintiffs and, thereby, the scope of discovery and how a court can 'massage' their findings?

If not, why not? If you're going to set yourself on "too complex and hypertechnical to understand," doesn't that feed the problem; i.e., "the Law" is too beyond the average person, even though the average person is expected to comply with "the Law?"

If you don't want to 'speculate,' then why even contribute to a thread which, up front, calls for some speculation?

If your answer is simply that you doubt it and we'll find out, otherwise, it's speculation, then... thanks.

Last edited by TrappedinCalifornia; 05-18-2019 at 3:08 AM..
Reply With Quote
  #13  
Old 05-18-2019, 8:30 AM
fiddletown's Avatar
fiddletown fiddletown is offline
Veteran Member
 
Join Date: Jun 2007
Location: San Francisco Bay Area
Posts: 4,760
iTrader: 1 / 100%
Default

Quote:
Originally Posted by TrappedinCalifornia View Post
Fiddletown - I respect your contributions. However, that's a cop out. You have not shown anything that I missed....
Believe that if you want. But I consider this a pointless discussion and have better things to do with my time.

Have fun.
__________________
"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper
Reply With Quote
  #14  
Old 05-18-2019, 5:38 PM
sarabellum sarabellum is offline
Senior Member
 
Join Date: Jun 2010
Posts: 1,184
iTrader: 9 / 100%
Default

Quote:
Originally Posted by TrappedinCalifornia View Post
But, the expansiveness is similar in terms of defining who qualifies as a plaintiff; i.e., creating a 'new' and potentially 'unique' methodology in how a court may determine standing in any, given case.
The Standing doctrines are well-established. As explained by Fiddletown, the Rules and Holdings of Soto v. Bushmaster Firearms International, LLC, SC19832, SC19833 (Conn. 2019) are narrowly limited by the statutory language of Conn. General Statutes § 42-110g (a), "Whether one must have entered into a consumer or commercial relationship with an alleged wrongdoer in order to have standing to bring a CUTPA action presents a question of statutory interpretation. The plain meaning of the statutory text must be our lodestar." A direct contractual relationship occurs between A and b. Privity is a close relationship or identification of interests (see Gikas v. Zolin) between A/B and a third party, C, such that A would expect to be held to the original contract by C. An example, the commercial landlord, A rents an office to B, who in turn subleases space to C. Such transfers of rights are called assignments and delegations.

None of those privity matters are at issue in Soto, as explained by the Court, because the Connecticut legislature expanded the scope of the statute to include, ‘‘[a]ny person who suffers any ascertainable loss of money or property, real or personal, as a result [of a prohibited practice] . . . .’’ P.A. 75-618, § 5, codified as amended at General Statutes (Rev. to 1977) § 42-110g (a)." Id. In other words, the legislature conferred standing on an additional category of plaintiffs, namely, those whose injuries were not the result of a direct consumer purchase or lease of goods or services." Id. That is to say injury in fact, which is the basis of every personal injury suit in the nation. See e.g.Cal. Civ. Code §43

Once the legislature expanded the statute's scope of the kinds of plaintiffs, who can file suit, to include persons injured by the product, the privity issue died. It appears you are arguing matters not at issue in the Soto case.

The Soto case involves construction of the Connecticut unfair practices statute. The Soto case does nothing to enhance or change any civil procedure doctrine. The Soto case, because it focuses on the narrow statutes emanating in Connecticut, does not and cannot present any substantive statutory concerns in any law outside of that state. This thread is sketchy.

Last edited by sarabellum; 05-18-2019 at 5:42 PM..
Reply With Quote
  #15  
Old 05-18-2019, 6:06 PM
fiddletown's Avatar
fiddletown fiddletown is offline
Veteran Member
 
Join Date: Jun 2007
Location: San Francisco Bay Area
Posts: 4,760
iTrader: 1 / 100%
Default

Quote:
Originally Posted by sarabellum View Post
...The Soto case involves construction of the Connecticut unfair practices statute. The Soto case does nothing to enhance or change any civil procedure doctrine. The Soto case, because it focuses on the narrow statutes emanating in Connecticut, does not and cannot present any substantive statutory concerns in any law outside of that state. This thread is sketchy.

Well done.
__________________
"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper
Reply With Quote
  #16  
Old 05-18-2019, 11:47 PM
TrappedinCalifornia's Avatar
TrappedinCalifornia TrappedinCalifornia is offline
Senior Member
 
Join Date: Jan 2018
Location: What Used to be a Great State
Posts: 880
iTrader: 0 / 0%
Default

Quote:
Originally Posted by sarabellum View Post
The Standing doctrines are well-established. As explained by Fiddletown, the Rules and Holdings of Soto v. Bushmaster Firearms International, LLC, SC19832, SC19833 (Conn. 2019) are narrowly limited by the statutory language of Conn. General Statutes § 42-110g (a), "Whether one must have entered into a consumer or commercial relationship with an alleged wrongdoer in order to have standing to bring a CUTPA action presents a question of statutory interpretation. The plain meaning of the statutory text must be our lodestar." A direct contractual relationship occurs between A and b. Privity is a close relationship or identification of interests (see Gikas v. Zolin) between A/B and a third party, C, such that A would expect to be held to the original contract by C. An example, the commercial landlord, A rents an office to B, who in turn subleases space to C. Such transfers of rights are called assignments and delegations.

None of those privity matters are at issue in Soto, as explained by the Court, because the Connecticut legislature expanded the scope of the statute to include, ‘‘[a]ny person who suffers any ascertainable loss of money or property, real or personal, as a result [of a prohibited practice] . . . .’’ P.A. 75-618, § 5, codified as amended at General Statutes (Rev. to 1977) § 42-110g (a)." Id. In other words, the legislature conferred standing on an additional category of plaintiffs, namely, those whose injuries were not the result of a direct consumer purchase or lease of goods or services." Id. That is to say injury in fact, which is the basis of every personal injury suit in the nation. See e.g.Cal. Civ. Code §43

Once the legislature expanded the statute's scope of the kinds of plaintiffs, who can file suit, to include persons injured by the product, the privity issue died. It appears you are arguing matters not at issue in the Soto case.

The Soto case involves construction of the Connecticut unfair practices statute. The Soto case does nothing to enhance or change any civil procedure doctrine. The Soto case, because it focuses on the narrow statutes emanating in Connecticut, does not and cannot present any substantive statutory concerns in any law outside of that state. This thread is sketchy.
This was, pretty much, the straightforward response I was anticipating when I began this thread.

What both you and fiddletown have done is focus on Soto vs. Bushmaster. I wasn't the one who brought that case up. All I've done, in a nutshell, is suggest that it might be an example of what Gorsuch was warning about; said warning going directly to your first statement, that the Standing doctrines are well-established. Take the opening paragraph on the page you linked to...

Quote:
Attorneys need to understand the law of standing in order to minimize the likelihood of having to litigate the issue. Avoiding a standing defense requires a careful selection of plaintiffs, thoughtful choice of claims and relief sought, and specific allegation of facts in the complaint. Skillful pleading, therefore, should focus not only on the merits of the claims but also on the standing of the plaintiffs to advance them. Failure to do so may result in delay of the case at best, and dismissal of the case at worst.
Now, go back and look to what Gorsuch (with Alito and Roberts signing on) said in his dissent - that the majority in Apple, Inc. vs. Pepper, essentially, 'replaced' a long-standing, well-established, and reasonably understood ("whatever its flaws") standard for determining standing with a new one which was not only 'senseless,' but would be formulaic (requiring 'complex inquiry') and easily manipulated.

The significance of Soto vs. Bushmaster, as it relates to the discussion question posed in the OP of this thread, isn't about how it is 'different.' It's about what was stated in The National Law Review (see also the Connecticut Law Tribune)...

Quote:
...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...
In other words, the claim is that the Connecticut Supreme Court sidestepped what, at that moment (remember, this was two months PRIOR to the new standard related to contract privity ostensibly created by SCOTUS on 5/13/19), was a 'well-established' standard for determining standing and imposed a supposedly 'new' interpretation on CUTPA, one...

Quote:
...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...
In other words, the gist is that it's not about what the legislature did, but how the Connecticut Supreme Court has now chosen to interpret it; ostensibly in an effort to 'workaround' what was, then, well-established doctrine related to standing. With this 'new' interpretation, the Connecticut Supreme Court is being accused of 'eviscerating' the 'commercial relationship' (contract privity) standards and opening "Pandora's Box" in terms of determination of standing.

Returning to the question posed in the OP...

Since the Connecticut Supreme Court and the United States Supreme Court seem to be desirous of creating more... nebulous... standards for the determination of standing, moving away from precedent, well-established doctrine, interpretation of existing statutes, etc., what might that mean vis a vis the PLCAA?

If such high courts are willing to, at the risk of oversimplification, 'play fast and loose' with or even outright change well-established Standing doctrines, how might that influence the legal strategies of firearms manufacturers/wholesalers/retailers?
Reply With Quote
  #17  
Old 05-19-2019, 12:29 PM
sarabellum sarabellum is offline
Senior Member
 
Join Date: Jun 2010
Posts: 1,184
iTrader: 9 / 100%
Default

Quote:
Originally Posted by TrappedinCalifornia View Post
The significance of Soto vs. Bushmaster, as it relates to the discussion question posed in the OP of this thread, isn't about how it is 'different.' It's about what was stated in The National Law Review (see also the Connecticut Law Tribune)...

...the claim is that the Connecticut Supreme Court...
The "articles" which you cited are not law review articles (but are hyperbole, "the flood gates of litigation have been opened!") and are not a substitute for the issues, rules, analysis, holding, and conclusion of Soto. All that matter are the Connecticut statute and the decision of the Connecticut Supreme Court construing the statute. You avoid citing the language of the Connecticut statute to create a straw man argument. As for standing in Soto, this is the rule, period, "[a]ny person who suffers any ascertainable loss of money or property, real or personal, as a result [of a prohibited practice] . . . .’’ P.A. 75-618, § 5, codified as amended at General Statutes (Rev. to 1977) § 42-110g (a)." The standing inquiry ends there because the Connecticut legislature includes all persons injured by a product to file suit for their injuries, bringing that state into conformity with many of the states in the nation regarding products liability.

As for Apple v. Pepper, the issue addressed by the Supreme Court is, "Whether consumers may sue for antitrust damages anyone who delivers goods to them, even where they seek damages based on prices set by third parties who would be the immediate victims of the alleged offense." You failed to cite the statute or even the Apple v. Pepper language. You did not indicate how anti-trust (price fixing) and standing for an anti-trust suit actions, in lieu of the statute (15 U.S.C. § 15(a)) could ever be applicable in a firearms unsafe product action under any cognizable body of law.

The anti-trust statute at issue in Apple v. Pepper provides, "Except as provided in subsection (b), any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee." 15 U.S.C. § 15(a). Anyone, not just someone who directly bought a product from Apple or Pfizer, injured as a result of monopolistic price fixing by merchants of a particular size may file an ant- monopoly suit. The Court in Apple ruled, "15 U. S. C. §15(a) (emphasis added). The broad text of §4—'any person' who has been 'injured' by anantitrust violator may sue—readily covers consumers who purchase goods or services at higher-than-competitive prices from an allegedly monopolistic retailer." Id. The Court in Apple further explained and ruled:
The bright-line rule of Illinois Brick, as articulated in that case and as we reiterated in UtiliCorp, means that indirect purchasers who are two or more steps removed from the antitrust violator in a distribution chain may not sue." By contrast, direct purchasers—that is, those who are...In this case, unlike in Illinois Brick, the iPhone owners are not consumers at the bottom of a vertical distribution chain who are attempting to sue manufacturers at the top of the chain. There is no intermediary in the distribution chain between Apple and the consumer.
Notice that "price" is the core in a monopoly suit, whereby the inflated purchase price of the object must be fairly traceable to the original sale price not the final price after 2-3 middle men have tacked on their fees. Discussion of the Apple case is dead on arrival, because the original 1st purchasers of the I Phone filed suit, and the Court did not provide any decision expanding the standing requirement from 15 U. S. C. §15(a) in the monopoly context (albeit if the S.Ct. narrowed standing to 2nd level purchases in Illinois Brick contrary to the expansive black letter "anyone" of 15 U. S. C. §15(a)).

Unlike a products liability case (for a physical or emotional injury resulting from an inherently unsafe or defective product), an anti-monopoly suit focuses on the price. In both the Connecticut and federal statutes, the plain language of the statute extends the right to sue to anyone injured in fact not just one, who purchased from the manufacturer. The only relevance Apple has to arms owners is standing to sue the arms manufacturers (1st level of sale) and distributors (2nd level of sale) for price fixing, e.g. Sturm Ruger- S&W-Colt selling AR 15s for the same inflated price.

In an arms product liability suit, standing will turn on what the product liability statute indicates, as the legislature limits access to the courts by statute. Cite the statute. Neither Soto nor Apple expand any standing doctrine, and thus offer no implications for any products liability suit involving guns. Arms owners should be directed to the doctrines affecting their core rights, not sent down incorrect paths. Respectfully, this is a request for Librarian to lock this irrelevant thread.

Last edited by sarabellum; 05-19-2019 at 5:56 PM..
Reply With Quote
  #18  
Old 05-19-2019, 8:23 PM
TrappedinCalifornia's Avatar
TrappedinCalifornia TrappedinCalifornia is offline
Senior Member
 
Join Date: Jan 2018
Location: What Used to be a Great State
Posts: 880
iTrader: 0 / 0%
Default

Quote:
Originally Posted by sarabellum View Post
All that matter are the Connecticut statute and the decision of the Connecticut Supreme Court construing the statute.
Emphasis added.

The emphasized portion has been my point all along. That seemed to be the point Gorsuch made (with Alito and Roberts signing on). That seems to be the point being made in what you deem 'hyperbole' articles.

What you keep doing is, essentially, pointing to a 2018 rule book and saying: "These are the rules and how they are understood." The warning I'm perceiving as being provided is that the 2018 rule book and the understanding thereof is in the process of being re-written in 2019.

Simply citing the statute ignores what a number have observed. According to NSSF...

Quote:
...The Court’s split decision held that CUTPA fit within an exemption to the federal Protection of Lawful Commerce in Arms Act (PLCAA) that permits lawsuits where the defendant violated a statute applicable to the sale of firearms. In a strongly worded and well-reasoned dissent, Chief Justice Robinson rejected the majority’s overly broad interpretation of the scope of the limited exception, which is contrary to legislative text, canons of statutory interpretation and the legislative history of the PLCAA...
In effect, your argument is that the statute exists and the Connecticut Supreme Court majority interpreted it - good to go. The counter argument and the 'warning' being provided by numerous sources is that the statute exists and the Connecticut Supreme Court majority interpreted it in a new and expansive way, contrary to established understanding and application. Remember, it was a 4-3 decision; i.e., a very narrow one and only a cursory glance at the text demonstrates a good deal of 'arm wrestling' by the judges over myriad points.

Again, as regards Apple, Inc. vs. Pepper, you cite details of the majority argument, but ignore the 'warning' provided in the dissent...

Quote:
This replaces a rule of proximate cause and economic reality with an easily manipulated and formalistic rule of contractual privity...
In short, citing the details provided by the 'winners' and saying 'that's it' misses the whole point of the thread. As you note...

Quote:
Originally Posted by sarabellum
The only relevance Apple has to arms owners is standing to sue the arms manufacturers (1st level of sale) and distributors (2nd level of sale) for price fixing, e.g. Sturm Ruger- S&W-Colt selling AR 15s for the same inflated price.
Okay. It didn't change the whole playing field, but it did change how standing has been traditionally determined, even if only in a comparatively narrow set of circumstances. This seems to be consistent with the 'warning' I cited Gorsuch as providing in his dissent in the OP...

Quote:
If the proximate cause line is no longer to be drawn at the first injured party, how far down the causal chain can a plaintiff be and still recoup damages? Must all potential claimants to the single monopoly rent be gathered in a single lawsuit as necessary parties (and if not, why not)? Without any invitation or reason to revisit our precedent, and with so many grounds for caution, I would have thought the proper course today would have been to afford Illinois Brick full effect, not to begin whittling it away to a bare formalism.
It's similar to your contention here...

Quote:
Originally Posted by sarabellum
In an arms product liability suit, standing will turn on what the product liability statute indicates...
What critiques of the Soto vs. Bushmaster decision (not to mention much of the dissent in the case) are warning about is how the Court 'understood' what the statute indicates.

In effect, cutting away the verbiage, you're making my argument for me. You acknowledge that it's about how the statute in Soto vs. Bushmaster was construed. You acknowledge that Apple, Inc. vs. Pepper changed, even if, in your opinion, 'minimally,' how standing is determined.

When you declare - "Arms owners should be directed to the doctrines affecting their core rights..." - bear in mind it's a LONG game, where entire fields of play and/or entire rule books do not, necessarily, hinge on a single, Earth-turning decision. Heller was 5-4 and, from numerous accounts and cases which have emerged since then, could easily have been construed in a different way. It happened to go our way and is consistent, for the most part, with how the 2nd Amendment has been traditionally, historically, and legally understood.

Soto vs. Bushmaster was a 4-3 decision and was construed in a manner that, thus far, has not gone our way. Unfortunately, the manner in which it was construed appears to be, as the NSSF release put it, contrary to legislative text, canons of statutory interpretation and the legislative history of the PLCAA.

Apple, Inc. vs. Pepper was a 5-4 decision and was construed, by your own admission and by Gorsuch's declaration, in a manner which altered, no matter how minimally (short- or long- term), 'strict rules regarding determination of standing.' This change was characterized by Gorsuch as "whittling it [the standard] away to a bare formalism."

"Arms owners" are constantly pointing to how anti-civil rights (anti-gun) forces are 'whittling away' at our rights; i.e., death by a thousand cuts. In these two cases, we potentially have two, new 'cuts.' At the very least, it is being perceived by such forces, particularly in the case of Soto vs. Bushmaster, that a new and/or sharpened knife has been handed to those 'whittling away' at our core rights. Even if, ultimately, these changes, in and of themselves, are more 'hyperbolic' than directly impactful, they still alter the rules for standing, which alters the way the 'game' is to be played and, potentially, the way the 'game' is played out; meaning a change in how resources are perceived and allocated in defense of our core rights.

As we've seen, it doesn't take much to 'tip the scales' against us. How many 'small cuts' does it take before the aggregate effect of those cuts weakens our ability to keep the scales balanced?

One thing you may be fully correct on, however, is that it just might be time to lock the thread in that we seem to be 'arguing' in circles - with you re-litigating the 'winning argument' and my pointing to the manner in which the argument was decided to be the 'winning' one. Remember, what you deem 'hyperbolic' are attorneys (and judges) on 'our side' arguing that the process used was wrong.

Last edited by TrappedinCalifornia; 05-19-2019 at 9:16 PM..
Reply With Quote
  #19  
Old 05-19-2019, 9:41 PM
sarabellum sarabellum is offline
Senior Member
 
Join Date: Jun 2010
Posts: 1,184
iTrader: 9 / 100%
Default

Quote:
Originally Posted by TrappedinCalifornia View Post
That seems to be the point being made in what you deem 'hyperbole' articles.

What you keep doing is, essentially, pointing to a 2018 rule book and saying: "These are the rules and how they are understood."

. . . citing the statute . . .

In effect, your argument is that the statute exists and the Connecticut Supreme Court majority interpreted it - good to go.
The Connecticut statute and published decision determined, who in that state may file suit for a defective product in that state. This thing that you linked https://www.nssf.org/nssf-statement-...-v-bushmaster/ has zero legal significance as it is one paragraph containing NO law. Rule book? A statute and the U.S. Supreme Court's construction of that statute are the law of the land. A state Supreme Court's construction of that state's statute is the controlling law in that state. We begin all legal analysis with the plain language of a statute.

Quote:
Originally Posted by TrappedinCalifornia View Post
Okay. It didn't change the whole playing field, but it did change how standing has been traditionally determined, even if only in a comparatively narrow set of circumstances . . .
No. The Court in Apple construed a statute, adding nothing new to the legal doctrine of standing. The only remarkable thing in Apple is that the defendant, Apple, got away with a questionable motion to dismiss in effect mis-representing the facts alleged in the case, when the standard is all facts are accepted as true in the complaint in a motion to dismiss, (FRCP 12b(6)), "The consumers here purchased apps directly from Apple..." and then argued that the plain language of the anti-trust statute does not really say and mean "anyone" who purchased a product from the manufacturer, especially people, who purchased directly from Apple. Apple's baseless argument offended the Supreme Court, "In sum, Apple's theory would disregard statutory text and precedent, create an unprincipled and economically senseless distinction among monopolistic retailers, and furnish monopolistic retailers with a how-to guide for evasion of the antitrust laws.." Apple and its counsel are lucky to not be sanctioned under Rule 11.

Neither this thread, nor Soto or Apple, provide any legal issue, rule, analysis, or conclusion pertinent to a firearms product liability matter. Note, that firearms manufacturers have a statute specifically exempting them from many liability theories of recovery should let everyone know that a suit against a manufacturer for "defective product" and "negligent entrustment" will not lie for "(1) causes of action against manufacturers, distributors, dealers, and importers of firearms or ammunition products, and their trade associations, for the harm solely caused by the criminal or unlawful misuse of firearm products or ammunition products by others when the product functioned as designed and intended." Disarmament proponents claim that guns and scary guns are designed only to kill, thereby shooting themselves in the foot with the last element. These mega corporations will be fine.

This thread on the other hand leads folks down a path to nowhere.

Last edited by sarabellum; 05-19-2019 at 10:16 PM..
Reply With Quote
  #20  
Old 05-19-2019, 11:25 PM
TrappedinCalifornia's Avatar
TrappedinCalifornia TrappedinCalifornia is offline
Senior Member
 
Join Date: Jan 2018
Location: What Used to be a Great State
Posts: 880
iTrader: 0 / 0%
Default

Quote:
Originally Posted by sarabellum View Post

This thread on the other hand leads folks down a path to nowhere.
As I said, we're talking past each other.
Reply With Quote
Reply

Thread Tools
Display Modes

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is Off

Forum Jump



All times are GMT -8. The time now is 3:21 AM.




Powered by vBulletin® Version 3.8.9
Copyright ©2000 - 2019, vBulletin Solutions, Inc.
Proudly hosted by GeoVario the Premier 2A host.
Calguns.net, the 'Calguns' name and all associated variants and logos are ® Trademark and © Copyright 2002-2018, Calguns.net an Incorporated Company All Rights Reserved.
Calguns.net and The Calguns Foundation have no affiliation and are in no way related to each other.
All opinions, statements and remarks made by Calguns.net on this web site and elsewhere are solely attributable to Calguns.net.