Featured Post

Is MGM Suing Vegas Shooting Victims? (Not Really…)

Is MGM Suing Vegas Shooting Victims? (Not Really...)

According to the headlines, hotel giant MGM made a move that would give most PR people a massive coronary: they have “sued” the victims of the horrific October mass shooting outside of their Las Vegas property, Mandalay Bay. Predictably, MGM’s court action here was met with much anger and bewilderment. Sue the VICTIMS? For what possible heartless reason would the company dare to do such a thing?

Some clarity: this is not a “lawsuit” in the traditional sense, in which a plaintiff alleges wrongdoing by another and demands monetary damages. In other words, MGM is not blaming the victims for anything or attempting to get money from them. MGM’s suit is actually a “Complaint for Declaratory Relief”, in which they are attempting to stop the victims from suing them.

MGM, knowing that they face potentially thousands of lawsuits from concert goers who were targeted by Stephen Paddock when he opened fire from his Mandalay Bay hotel room, is attempting to avoid the arduous and expensive litigation by asking a federal judge to issue an order declaring that under the law, MGM is not liable to any of them.

Specifically, MGM cites federal anti-terrorism legislation, known as the SAFETY Act. In relevant part, the Act limits liability where “certified” anti-terrorism services and technology are used, but an attack occurs despite these precautions. Per MGM’s Complaint:

[T]he SAFETY Act creates a single, exclusive federal cause of action for claims for injuries arising out of or relating to acts of mass violence where services certified by the Department of Homeland Security were deployed in defense against, response to, or recovery from such act and such claims result or may result in loss to seller.

According to MGM’s argument, the Act is intended to encourage venues and event organizers to utilize these types of anti-terrorism services by limiting their exposure to liability if the unthinkable happens despite their precautions. The Act states that the exclusive cause of action [lawsuit] arising from an act of terrorism which occurs despite the use of certified anti-terrorism services is only valid against the seller of those services.

MGM states that Contemporary Services Corporation (CSC) was the Security Vendor for the music festival, and that CSC was certified by Homeland Security per the Act. MGM points to lawsuits already filed (which have apparently been dismissed by the plaintiffs, but which are intended to be refiled) that claim MGM and CSC were negligent in “protecting and safeguarding” concert goers, and “implicate security at the concert, including training, emergency response, evacuation, and adequacy of egress”, all of which, MGM alleges, fall within the purview of the services CSC provided.

Thus, MGM argues, the SAFETY Act applies, and the only possible cause of action the concert goers have is against CSC. However, MGM doesn’t stop there. According to their theory of the case, the SAFETY Act may further provide CSC with a “complete defense to liability”:

In addition, the SAFETY Act provides that for any covered claims arising out of or relating to an act of mass violence where certified services were provided, “the government contractor defense applies in such a lawsuit,” which provides a complete defense to liability. 6 U.S.C. 442(d)(1). The government contractor defense precludes any finding of liability on the part of Plaintiffs to Defendants relating to Paddock’s mass attack.

The “government contractor defense” refers to a holding by the Supreme Court in which those providing services as government contractors enjoy the same immunity from liability as the government itself would, under certain circumstances. The SAFETY Act specifically endows the provider of anti-terrorism security services with this protection, unless those services have been willfully misrepresented by their provider.

Because of these provisions of law, MGM argues that they are immune from liability and should not be burdened with an onslaught of doomed lawsuits. Rather than have to raise these defenses in thousands of individual cases (they face over 2,500 of them, per their Complaint) they are asking the federal court to make a judicial declaration that the SAFETY Act applies and precludes any liability against MGM for claims arising out of the mass attack.

Will they prevail?

MGM has a compelling case under the relevant statutory provisions. However, attorneys for the potential plaintiffs, now aware of MGM’s defense, will no doubt carefully and creatively craft their pleadings accordingly. One potential issue for litigation may be just exactly how Paddock managed to get his arsenal and accoutrements into his room, with the hotel none the wiser. Unless CSC was in charge of Mandalay Bay’s day-to-day security, this may be one way around their SAFETY Act shield. A good lawyer is well-trained to couple the right facts with the right laws, and MGM just gave them a head start.


Senior Editor
Twitter  

Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

Please do be so kind as to share this post.
Share

9 thoughts on “Is MGM Suing Vegas Shooting Victims? (Not Really…)

  1. Sigh. The shooting itself was horrifying, and now the lawsuits are more like sordid and disgusting. I’m not sure what I think of the merits of the sort of lawsuit that this “Complaint for Declaratory Relief” is meant to foreclose.

    I’m not normally someone who gets mad about people engaging in lawsuits, though I stay away from that myself. I do wonder if anyone’s life is going to be enriched by this exercise, though.

      Quote  Link

    Report

    • It’s notable that 2,500 people have sued or notified MGM of their intent to sue. There reports were that there were around 500 injured and 60 killed. In my mind, that makes about 2,000 very questionable lawsuits.

      In general I think arguing security negligence is a tough hill to climb. There were hundreds of hotel room windows around that strip where the concert was. He could have been behind any one of them. How do you prevent that?
      The hotel security- well, that’s maybe a different issue.

        Quote  Link

      Report

    • @em-carpenter

      I do plaintiff’s law. I think for a lot of my clients, it is about holding someone or some organization/company accountable for what could or should have been a preventable injury or death.

      I work with a lot of people who suffer industrial injuries and/or deaths. Yes we sue for money but for a lot of my clients it is also about keeping the powerful accountable. Often tort lawsuits for money damages are the only ways to do this in the United States.

      I admit to having a financial incentive here but I think the “engaging in lawsuits” criticism often just helps act as defense for the management and capital class.

        Quote  Link

      Report

      • Which is why I describe myself as “not normally someone who gets mad at people engaging in lawsuits”. I don’t have a problem with what you do, in any general sense.

        So, if this is about accountability, my question is “accountability for what?”

        That isn’t rhetorical, if you can answer it, that would be good.

          Quote  Link

        Report

  2. I said this last year. I’ll say it again.

    Okay, here’s something that *REALLY* bugs me about the Las Vegas shooting.

    Las Vegas has cameras freaking *EVERYWHERE*. That’s one of the things it does really, really well. Remember that football guy (Michael Bennett) who got tackled by the cops and he claimed it was racism and, like, less than a week later the cops were able to assemble a timeline of footage that went from right before the shots were fired to the altercation itself and they claimed that this footage gave enough context to exonerate them?

    They had tons of videos from tons of angles.

    This was, like, September. It wasn’t *THAT* long ago.

    And we still don’t know anything about the Mandalay Bay shooting? We haven’t seen footage of the hallways before or after or anything like that?

    What the hell?

      Quote  Link

    Report

    • I remember the Michael Bennet story, though I didn’t see the followup. I think you have a good point, even though hallways aren’t the same as the casino.

      However, I have a feeling that people bring guns into casinos quite a lot. I have heard a tale, through my martial arts connections (I find it credible), about dealing with guns in a casino elevator. And of course, the famed OJ Simpson gun deal was in a casino.

      Now I’m thinking that MGM would really rather not have to discuss this in open court.

        Quote  Link

      Report

    • Yeah… I agree that its weird that the coverage in the immediate aftermath seemed short on the usual sorts of surveillance footage that usually emerges pretty quickly. But NYT seems to have released something about 4 months later (below).

      NYT with MGM footage

      Spoiler, its not very interesting… just a guy who brings a bunch of suitcases to his room on several different days. Scarily bathetic.

        Quote  Link

      Report

  3. Has anyone of the victims or loved ones of victims decided to sue the family of the shooter? You don’t go after a business unless you can 100% prove they were the cause, the cause was that family members did not alert authorities of the potential of him doing harm. There are behaviors that should be looked at first, he did show certain behaviors and we need to pay more attention to them. When some has an arsenal of weapons and family knows about it you have an obligation to your fellow man to report such a problem especially if that person has strange behavior patterns most mass shooters do show signs of mental illness it is up to humans to report such things to avoid such things from happening. You can have all the security in the world at your business but it really is up to all of us to recognize the signs of mental illness and report it even if it means you have to have someone you care about have their secret life exposed. Pay attention to the persons whom you care about businesses can only protect people so far it is up to family members to notice signs of distress.

      Quote  Link

    Report

Leave a Reply

Your email address will not be published. Required fields are marked *