What would you do if you owned a large hotel and a mentally unstable person brought a huge supply of firearms and ammunition into one of your hotel rooms and then used those guns and ammo to shoot into the crowd at an open-air concert? Whatever your reaction, filing suit against the victims of those shootings might not seem like the best possible response.
Unless you're the management and legal team for the MGM Resorts, which owns the Mandalay Bay hotel in Las Vegas. Last October, Stephen Paddock, looking down from a room on the hotel's 32nd floor, fired round after round at a concert audience below, killing 58 people and wounding more than 500 more. Last week, MGM filed suit in federal court against 1,000 defendants who are victims of the shootings or other interested parties. The lawsuits are intended to be a self-protective, preemptive strike by MGM. The company says it is only suing people who have already sued MGM or notified it that they plan to do so. It isn't asking for the shooting victims to pay it any money. Nevertheless, the move has predictably prompted widespread outrage and prompted calls on Twitter to #BoycottMGM.
Suing shooting victims just isn't a good look, particularly for a consumer-facing company in the competitive travel and recreation industry. MGM had to know that the move would damage its brand. You might wonder what the company's leaders and its attorneys were thinking, and there's a pretty simple answer. They were thinking they could protect the hotel from years of costly litigation, especially in state court.
They were also thinking they would try out a 16-year-old law intended to protect the security industry and see if it could work for their hotel. If MGM is successful in federal court, you can expect to see a lot more lawsuits aimed at terrorism victims.
Does the SAFETY Act apply to a hotel?
The 2002 law is called the SAFETY Act (for "Support Antiterrorism by Fostering Effective Technologies"). Passed in the wake of 9/11, the intent was for the Department of Homeland Security to review security products and services for federal certification. If they received that certification, the law protects their providers from lawsuits in the event of a terrorist attack where those products are in use. It's worth noting that MGM did have a security firm at the concert at the time of the shooting, and that security firm was certified under the SAFETY Act.
Attorneys for the victims are as outraged about this lawsuit as you might expect. "Their theory is that this security company goes to D.H.S. and gets some type of certificate, and so now MGM is immune, and everybody in the future who hires the company is immune," Craig Eiland, who represents many of the victims, told the Times. "It's outrageous, and that's not what the law is, and we would all be less safe."
MGM argues the shooting qualifies as an act of terrorism, and thus is covered under the SAFETY Act. The Department of Homeland Security has not weighed in one way or another on that question. What is clear is MGM wants to establish, first of all, that MGM can't be sued for the shooting, and second that it especially can't be sued in state or local courts.
In an op-ed in USA Today, MGM spokesperson Debra DeShong argued that only the security provider working that night, Contemporary Services Corporation, could be sued. But the SAFETY Act seems to specifically limit Contemporary Services' liability to $25 million, which won't amount to much for individual victims if it's spread over the families of the 58 who were killed and the 500 who were wounded, not to mention their attorneys' fees. MGM obviously has much deeper pockets, but it seems to want to remove those deep pockets from the equation.
As to the company's insistence on limiting lawsuits to federal courts, DeShong suggests that a federal court would adjudicate these lawsuits more quickly than state courts would. "Years of drawn-out litigation and hearings are not in the best interest of victims, the community, and those still healing," she told the Times in a written statement. Even if that's true, it seems unlikely at this point that the shooting victims would trust MGM to be concerned about their best interests.
Besides a big PR black eye, what will be the results of MGM's new lawsuit? It's highly unclear, since there seem to be no previous legal actions involving the SAFETY Act. For this strategy to work, Homeland Security would have to determine that the Las Vegas shooting was an act of terrorism. Federal courts would have to agree that the SAFETY Act, though written for security providers, applies to a hotel as well. And state courts would have to agree that victim lawsuits against MGM fall outside their jurisdiction and refuse to hear those cases.
But if all of that happens, and MGM is successful? Other venues will most likely follow suit when shootings occur in the future, as seems sadly likely. Future victims of mass attacks shouldn't be surprised if a lawsuit arrives soon after.