Written by: Haleigh Chastain
Student Materials Editor, American Journal of Trial Advocacy
On October 2, 2017, one of the largest mass shootings in the United States occurred at an outdoor concert in Las Vegas, resulting in the deaths of 59 and injuries to 527.[1] For reasons still unknown, Stephen Paddock, with an arsenal of high powered weapons and ammunition, which were brought unsuspectedly into his hotel room at the Mandalay Bay Resort and Casino, launched a deadly assault on the outdoor concert goers.[2] Since this tragedy, numerous legal actions have been filed or threatened to be filed against MGM Resorts International (hereinafter “MGM”), owner of the Mandalay Resort and the concert venue.[3] One of the prime legal theories asserted against MGM is inadequate security.[4] In a novel legal maneuver, MGM has now initiated a declaratory judgment action in the federal district court in Nevada naming over 1,000 victims and other survivors of the mass shooting as defendants (hereinafter “MGM Action”).[5] In its declaratory judgment action, MGM is seeking an order from the District Court in Nevada that it has no liability, of any kind, to survivors or families of the victims.[6]
What are the Claims by MGM?
The defendants in the MGM Action are those victims who have sued MGM and voluntarily dismissed their claims, along with those who have threatened to sue.[7] MGM did not include in the MGM Action a claim against anyone with an active lawsuit against MGM related to any aspect of the shooting.[8] The MGM Action was initiated in an attempt to have the Court issue a final order declaring that any previously dismissed claims and/or any new claims are barred by a matter of federal law.[9] The MGM Action has “surprised, shocked, [and] angered” both the victims and their lawyers.[10]
In an attempt to avoid liability in the MGM Action, MGM argues it is immune from any claim arising out of this shooting based upon the Support Anti-Terrorism by Fostering Effective Technologies Act of 2002, 6 U.S.C. §§ 441-444 (hereinafter “SAFETY Act”).[11] In its Complaint, MGM avers that the Safety Act “provides a calibrated balance of remedies and limitations on liabilities arising from mass attacks committed on U.S. soil where services certified by the Department of Homeland Security were deployed.”[12] To seek protection under the SAFETY Act, MGM claims that “[i]n the case of Paddock’s mass attack, certified technologies or services were deployed by a professional security company, Contemporary Services Corporation (“CSC”), which was employed as the Security Vendor for the Route 91 concert.”[13] As set forth in more detail below, MGM contends that Paddock’s mass attack meets the requirements of the SAFETY Act as set forth in 6 U.S.C. §§ 441-444 and the Regulations promulgated by the Department of Homeland Security at 6 C.F.R. § 25.1 et seq.[14]
Moreover, MGM states the SAFETY Act is applicable here by alleging it used “anti-terrorism” services to help prevent and respond to an event of “mass violence,” the exact event that the SAFETY Act was promulgated to address.[15] Since their security vendor hired for the concert, CSC, was certified by the Department of Homeland Security, MGM contends that the SAFETY Act is applicable and it is relieved of liability because it retained specific anti-terrorism services for this concert event.[16]
What is the SAFETY Act?
The SAFETY ACT was passed shortly after the September 11, 2011 attacks to encourage the private sector to deploy security measures to prevent mass violence and then provide immunity for a private entity from legal damages that could arise after an act of terrorism.[17] The FBI defines terrorism “as an act of terror associated with extremist ideologies of a political, religious, social, racial, or environmental nature.”[18] The SAFETY ACT was designed to encourage private sector companies to deploy more security technologies in civilian settings.[19]
By complying with the SAFETY Act, a private entity can limit its liability for terrorism if Qualified Anti-Terrorism Technologies (hereinafter “QATTs”) have been used.[20] The QATT has been broadly defined to purposefully include a wide array of technologies.[21] Parties covered under the SAFETY Act are known as “sellers” and make up any person/entity who provides a QATT to customers.[22] Moreover, the “seller” must also have been issued a designation or a certification.[23] MGM states that their security vendor for the concert, CSC, was federally certified, thereby placing them as a “seller” under the SAFETY Act.[24]
There are two levels of liability protection available through the SAFETY Act. If a designation is issued, the “seller” must maintain an amount of liability insurance designated by the U.S. Department of Homeland Security.[25] With certification from the Department of Homeland Security, the “seller” is vested with the same benefits provided under designation and further allow the “seller” to assert the Government Contractor Defense for any claims arising out of acts of terrorism.[26] The approved technologies include, but are not limited to, threat and vulnerability assessment services, detection systems, blast mitigation materials, screening services, sensors and sensor integration, first responder technologies, cyber security technologies, security plans/services, crisis management systems, and venue security.[27]
In general, the SAFETY Act creates a “federal cause of action for claims arising out of [or] relating to” an act of mass violence where certified services were deployed and where such claims may result in losses to the seller of the services.[28] Under the SAFETY Act, federal courts have “original and exclusive jurisdiction over all actions for any claim for loss” arising out of or related to such an attack and is the exclusive claim in such circumstances.[29] The applicable regulations of 6 C.F.R. § 25.7(d) relied specifically on by MGM state that:
There shall exist only one cause of action for loss of property, personal injury, or death for performance or non-performance of the Seller’s Qualified Anti-Terrorism Technology in relation to an Act of Terrorism. Such cause of action may be brought only against the Seller of the Qualified Anti-Terrorism Technology and may not be brought against the buyers, the buyers’ contractors, or downstream users of the Technology, the Seller’s suppliers or contractors, or any other person or entity.[30]
Application of Act to MGM’s Claims
The threshold legal question raised in the MGM Action is whether MGM is entitled to the benefits and protection of the SAFETY Act so as to bar access to the courtroom for victims of the shooting. MGM’s approach in the MGM Action seeks a broad interpretation of the SAFETY Act to take the limited fact that because CSC was hired as security for the concert event and was certified under the SAFETY Act, shields MGM from any liability related to the shooting.[31] MGM takes this position for all claims even though CSC was only retained for the concert security.
The MGM Action represents an issue of first impression of the SAFETY Act since its enactment following the events of 9/11.[32] A consensus has emerged of scholars on the nuisances of the SAFETY Act, viewing MGM as seeking too broad a stretch the provisions of the SAFETY Act.[33] For instance, the SAFETY Act requires the shooting to be a result of a terrorist attack. This massacre has not been deemed a terrorist attack.[34] In fact, MGM called the attack “the despicable act of one evil individual.”[35] This statement alone contradicts what MGM is trying to get the court to declare, that this was an act of terrorism under the SAFETY Act. Based upon the evidence gathered by investigators, this tragic act was done by one man, acting alone, without any assistance from terrorist groups.[36]
Likewise, it appears that MGM has not accurately applied the SAFETY Act to the situation at hand as the act has not been deemed a terrorist attack. However, if the court were to find the SAFETY act applies, it will likely be interpreted by the court much more narrowly then anticipated by MGM.
Moreover, the crux of the claims against MGM are negligence based as opposed to claims related to terrorism. In the most basic sense, MGM is being pursued for claims for the deaths, injuries, and/or damage from the massacre due to negligently failing to provide proper security to protect their guests.[37] CSC was not retained to monitor hotel guests and items brought to the hotel. In this case, Paddock was permitted without any form of security or oversight to bring a cache of weapons and ammunition into the hotel, occupy a room on the 32nd floor for several days, apparently have no room service, set up a firing area, break hotel windows, shoot a security guard who was not found for over five minutes and then fire on the concert venue, all without any real knowledge of MGM’s staff.[38] Although MGM is wanting to argue they are immune based on the security hired for the concert venue security, it is hard to envision the application of the SAFETY Act to allow MGM to be relieved of their apparent inadequate security measures at the hotel.[39]
One of the victim’s lawyer called the fillings “reprehensible,” suggesting that MGM is “trying to deflect attention from their own failures and . . . security procedures they had at Mandalay Bay.”[40] The motives behind MGM’s actions will be uncovered soon enough.
Conclusion
In all, the filing of the MGM Action is an aggressive move by MGM to raise the stakes and tensions of these victims. In this present situation, it is hard to comprehend how the SAFETY Act could be interpreted to provide MGM any relief. In the court of public opinion, MGM has already lost through this action. Since the MGM Action is one for declaratory judgment, the United States District Court for Nevada will eventually issue an opinion declaring whether the victims in this massacre will have a chance to be in court.[41] Although there are statutes that provide immunity or relief from legal claims in certain situations, the MGM Action does not appear to be one that falls within the parameters of the SAFETY Act to provide such relief to MGM.
[1] Multiple Weapons Found in Las Vegas Gunman’s Hotel Room, N.Y. Times (October 2, 2017), https://www.nytimes.com/2017/10/02/us/las-vegas-shooting.html [hereinafter “Multiple“].
[2] Greg Toppo, ‘This Can’t be Happening’: The Fateful 11 Minutes of the Las Vegas Mass Shooting, USA Today (October 4, 2017), https://www.usatoday.com/story/news/2017/10/04/las-vegas-mass-shooting-how-happened/732750001/.
[3] Jason Silverstein, MGM Sues Las Vegas Shooting Victims and Survivors, Claiming No Liability, CBS News (July 17, 2018), https://www.cbsnews.com/news/las-vegas-shooting-mgm-sues-victims-survivors-claiming-no-liability/.
[4] John Bacon, ‘A stunt’: Outrage Builds Over MGM Resorts’ Decision to Sue Victims of Las Vegas Massacre, USA Today (July 17, 2018) https://www.usatoday.com/story/news/nation/2018/07/17/mgm-resorts-sues-victims-las-vegas-massacre-denies-liability/791511002/.
[5] Silverstein, supra note 3.
[6] Regina Garcia Cano, MGM sues Las Vegas Massacre Victims in Hopes of Limiting Liability, Chicago Tribune (July 18, 2018), http://www.chicagotribune.com/business/ct-biz-mgm-resorts-sues-las-vegas-massacre-victims-20180717-story.html.
[7] Cano, supra note 6.
[8] Cano, supra note 6.
[9] Las Vegas Shooting Survivor: MGM Lawsuit “feels like bullets flying at my head,” CBS News (July 18, 2018), https://www.cbsnews.com/news/mgm-resorts-lawsuit-denying-liability-for-las-vegas-shooting-survivor-responds/
[hereinafter “Las Vegas“]
.
[10] Las Vegas, supra note 9.
[11] Complaint at 2, MGM Resorts Int’l v. Acosta, No. 2:18-cv-01288 (Nev. Dist. Ct. July 13, 2018).
[12] Id.
[13] Id.
[14] Id.
[15] Las Vegas, supra note 9.
[16] Las Vegas, supra note 9.
[17]Research and Development Partnerships- SAFETY Act for Liability Protection, Department of Homeland Security, https://www.dhs.gov/sites/default/files/publications/Safety%20Act%20for%20Liability%20Protection_0.pdf
[hereinafter “Research“]
.
[18] Rachel Crosby, Lawsuits Claim MGM Has No Liability to Las Vegas Shooting Victims, Las Vegas Review-Journal (July 16, 2018), https://www.reviewjournal.com/crime/homicides/lawsuits-claim-mgm-has-no-liability-to-las-vegas-shooting-victims/.
[19] Eliott C. McLaughlin, MGM Resorts Denies Liability For Las Vegas Shooting, asks Courts for Protection From Lawsuits, CNN (July 19, 2018), https://www.cnn.com/2018/07/17/us/mgm-lawsuit-victims-las-vegas-shooting-trnd/index.html.
[20] Research, supra note 17.
[21] Id. (stating that the act applies to a broad range of technologies including products, services, and software, or a combination thereof).
[22] Id.
[23] Id.
[24] Cano, supra note 6.
[25] Research, supra note 17.
[26] Id.
[27] Id.
[28] 6 U.S.C. § 442(a)(1) (2012).
[29] 6 U.S.C. § 442(a)(1)-(2) (2012).
[30] 6 C.F.R. § 25.7(d) (2018).
[31] Las Vegas, supra note 9.
[32] Jason Tashea, MGM Resorts Uses an Obscure Law to Sue Las Vegas Mass Shooting Victims, ABA J., (July 17, 2018), http://www.abajournal.com/news/article/mgm_resorts_uses_an_obscure_law_to_sue_las_vegas_mass_shooting_victims.
[33] Tashea, supra note 32.
[34] McLaughlin, supra note 19.
[35] Id.
[36] Jef Feeley & Peter Blumberg, MGM Sues Vegas Mass-Shooting Victims in Hopes of Limiting Liability, Bloomberg, (July 17, 2018), https://www.bloomberg.com/news/articles/2018-07-17/mgm-sues-mass-shooting-victims-in-hopes-of-getting-cases-tossed.
[37] Las Vegas, supra note 9.
[38] McLaughlin, supra note 19.
[39] Las Vegas, supra note 9.
[40] Feeley, supra note 36.
[41] Danny Cavallos, MGM’s Suit is not an Attack on Victims of Las Vegas Shooting, NBC News, (July 18, 2018), https://www.nbcnews.com/storyline/las-vegas-shooting/mgm-s-suit-not-attack-victims-las-vegas-shooting-n892291.
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