MGM Gambles on Public Image

August 2, 2018

In a stunning move, MGM Resorts International has employed a legal strategy of averting liability by bringing suit against the victims of the Las Vegas mass shooting which occurred in October 2017. MGM Resorts International is the parent company and owner of Mandalay Bay, the Las Vegas hotel from where Stephen Paddock carried out his rampage. Starting on July 13, 2018 MGM filed suits in numerous Federal district courts across the United States. They are not seeking monetary damages from the victims, rather their goal is obtaining declaratory relief stating they are not liable for any damages based on a statute passed shortly after the terrorist attacks of September 11, 2001. Nevertheless, they have put the victims of the Las Vegas attack in the position of having to possibly expend a mountain of legal fees to simply defend their future right to seek an award of damages against MGM Resorts International.

A little over 1 year after the September 11th terrorist attacks, congress passed the Support Anti-Terrorism by Fostering Effective Technologies Act of 2002 (SAFETY Act), which was signed into law by President George Bush on Nov. 25, 2002. 6 U.S.C.A. §§ 441444. Within this act, there is a provision that provides for a government contractor litigation defense. 6 U.S.C.A. § 442(d)(1). Specifically, under regulations guiding litigation management for the SAFETY Act a “buyer” of “Qualified Anti-Terrorism Technology” is immune from litigation for claims of losses to property, injury, or death resulting from an act of terrorism, and the sole cause of action permitted under the act must be against the “seller” only. 6 C.F.R. § 25.7. The definition for an act of terrorism includes “uses or attempts to use. . . weapons or other methods designed or intended to cause mass destruction, injury, or other losses[.]” 6 C.F.R. § 25.2. The regulation’s definition of “Qualified Anti-Terrorism Technology” is equally broad and encompasses any technology or information technology which is “designed, developed, modified, procured, or sold for the purpose of preventing, detecting, identifying, or deterring acts of terrorism[.]” Id.  Nevertheless, a “seller” is still required to be certified by the Secretary of Homeland Security. Id.

The thrust of MGM’s argument in their complaint for declaratory relief is their position that because Contemporary Services Corporation was hired as professional security for the event and were certified by the Department of Homeland Security they function as a “seller of Qualified Anti-Terrorism Technology[.]” MGM International Resort’s complaint does not make it clear if Contemporary Services Corporation was hired directly by them or by a separate entity running the music festival that was targeted. Still, the regulations do allow for immunity from litigation for “downstream users[.]”

While turning the tables and naming victims of the attack as defendants in a lawsuit is certainly a bold legal strategy for MGM International Resorts, it is not the first legal action to come from the attack. They claim in their petition that there have been over 2,500 individuals who have either already threatened, or actually begun, action against MGM International Resorts. They further claim that while some of these legal actions have been voluntarily dismissed, these victims “apparently” have the intent of refiling. The implication of this declaratory action quite obviously being that any current or proposed litigation would become moot under the SAFETY Act.

Source Dockets:

MGM Resorts International et al v. Booth et al

MGM RESORTS INTERNATIONAL et al v. BRASFIELD et al

MGM Resorts International et al v. Corbin et al

MGM Resorts International et al v. Eardley et al

MGM RESORTS INTERNATIONAL et al v. QUINTIVIA ABNER et al

MGM Resorts International et al v. Socci et al

MGM Resorts International et al v. Acosta et al

MGM Resorts International et al v. David Aase et al

MGM Resorts International et al v. Archambeault et al

Image source: REUTERS/Lucy Nicholson

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