The news that MGM Resorts International was retaliating against 1,900 victims of last October’s mass shooting on the Las Vegas Strip with lawsuits claiming immunity from liability under federal law has sparked a torrent of outrage. Calls for a boycott of the gaming giant have erupted on social media. At a very emotional press conference last Monday in Newport Beach, Calif., victims and their attorneys criticized the company for “re-victimizing” the casualties and their families.
Clearly, as a legal gambit it’s rife with controversy, callous on the face of it, a public relations black eye for a company that prides itself on being a model corporate citizen.
But will it work?
According to court documents, more than 2,500 people have filed or threatened to file lawsuits related to the shooting, which occurred on the evening of October 1 when a lone gunman brought an arsenal of automatic and semi-automatic weapons into a suite atop MGM’s Mandalay Bay hotel and opened fire on an outdoor music concert, killing 58 people and wounding hundreds more before taking his own life.
The cases could drag on for years and cost MGM millions.
To head that off, the company has taken the unprecedented step of suing in eight states to consolidate the cases in federal court in hopes of winning a dismissal under a 2002 law, the Support Anti-Terrorism by Fostering Effective Technologies Act—the SAFETY Act, as it’s known—which Congress enacted in the tense days after 9/11 to encourage companies to develop or provide security-related products or services in exchange for federal liability protection in the event of terrorism.
“We have filed what is known as an action for declaratory relief,” the company explained. “All we are doing, in effect, is asking for a change in venue from state to federal court. We are not asking for money or attorney’s fees. We only want to resolve these cases quickly, fairly and efficiently.”
Specifically, MGM claims the company it hired to provide security for the festival, Contemporary Services Corp., was protected from liability because its services are certified by the Department of Homeland Security for “protecting against and responding to acts of mass injury and destruction”.
MGM contends this places CSC under the protection of the 2002 law and that this protection extends to MGM as the contractor. Therefore, as its complaints argue, any claims against it “must be dismissed.”
“Plaintiffs have no liability of any kind to defendants,” they state.
But first a determination must be made that an “act of terrorism” occurred, and that authority rests with the secretary of Homeland Security, or so the act appears to state. The problem, legally, is that the secretary has made no such determination in the case of the Mandalay shooter, who died before his intentions could be known. “The matter is currently under review,” the department says on its website. MGM, however, argues that the secretary’s authority isn’t exclusive under the law and that a judge could make the determination.
Dismas Locaria, a Washington, D.C.-based lawyer who specializes in the SAFETY Act, disagrees, saying MGM’s action “probably runs afoul of the statute and regulations.”
“It’s very possible that this could really strengthen the SAFETY Act, or it could really undercut it,” he told the non-profit Nevada Independent news website. “So we’ll see.”
Robert Rabin, an expert on tort law at Stanford Law School, is skeptical as well, telling the Independent, “I suppose it’s understandable from their standpoint that they would want to cloak themselves in immunity.”
But “It’s an extremely broad immunity” the company is seeking, he said, “and it seems inconceivable that Congress had that breadth in mind.”
Robert Eglet, an attorney representing some of the victims, is convinced the act does not apply. “No one has ever attempted to use the law in the way they’re trying to do here.”
And he has blasted MGM’s action as “appalling.”
“I expected aggressive defense by them,” he told the Independent. “They’re entitled to an aggressive defense and I have no problem with that. What I do have a problem with is victimizing the victims again, particularly when these victims don’t have lawsuits pending against MGM.”
Debra DeShong, a spokeswoman for the gaming giant, has defended the lawsuits.
“The federal court is an appropriate venue for these cases and provides those affected with the opportunity for a timely resolution. Years of drawn out litigation and hearings are not in the best interest of victims, the community and those still healing.”
To Bryan Reber, a professor of crisis communications at the University of Georgia, that reeks of paternalism.
“It seemed a little tone deaf because it’s like you’re telling the victims that you know what’s better for them,” he said.
As he sees it, whatever the outcome, it isn’t going to look good for MGM.
“The thing is, you can win in the court of law and still lose in the court of public opinion. That’s what I think will probably end up happening here.”
An earlier MGM handled things differently, according to CDC Reports Editor Howard Stutz, who compared the actions of then-leader Kirk Kerkorian to pay $69 million to victims a tragic fire at the original MGM (now Bally’s) that killed 85 people and injured more than 600. Stutz says that comparing the two incidents may not be fair but reactions of the public could not be more stark.
“The optics are simply horrible for MGM,” writes Stutz. “Obviously, MGM’s lawyers drove this bus, and the company has decided to take its lumps now.”
