Quote:
Originally Posted by BOIDS
the most america sentence uttered:
The PR of these suits is mindbogglingly terrible. They filed one in California (can't find a link to this one) and one in
Nevada.
The thing is, description of the suits as "lawsuits against" the victims, or as an act of suing the victims, has the merit of being technically correct but is potentially misleading. These are defensive suits where the party in the defensive posture, MGM, happens to be the plaintiff. And, moreover, the argument being made in bulk in these lawsuits was going to come up as a defense in all the victims' lawsuits anyway. Thus, this is in some ways more efficient and adjudication of these suits could avoid potentially contrary rulings in the potentially hundreds of victim suits.
The two MGM lawsuits are for just one thing, called declaratory relief, by which MGM is asking federal courts of exclusive jurisdiction to answer the question whether the Support Anti-Terrorism by Fostering Effective Technologies Act of 2002, 6 U.S.C. §§ 441-444 (the "SAFETY Act") applies to the victims' claims against MGM and therefore precludes recovery against MGM by any victim as a matter of law, or not.
MGM's argument works like this, in layman's terms (by presenting it I am not endorsing it, just trying to explain their position):
- Contemporary Services Corporation ("CSC") provided security services for the Route 91 concert.
- CSC was a "Seller of Qualified Anti–Terrorism Technology" at the Route 91 concert under the SAFETY Act.
- The SAFETY Act allegedly, in MGM's reading, provides that there can be only one cause of action arising out of acts of terrorism if a "Seller of Qualified Anti–Terrorism Technology" provided services at an event where an act of terrorism was committed, and it can only be brought against the "Seller of Qualified Anti–Terrorism Technology," i.e., CSC and not MGM.
- The shooting at the Route 91 concert qualifies as an act of terrorism under the SAFETY Act.
- Thus, MGM cannot have liability to the victims because the SAFETY Act provides as a matter of law that the victims of the terrorist act at the Route 91 concert may only sue CSC.
- MGM acknowledges that the victims dispute MGM's interpretation of the proper application of the SAFETY Act.
- MGM acknowledges that the victims think this application of the SAFETY Act is completely wrong, i.e., that the SAFETY Act does not bar the victims' claims against MGM.
- Because there is an actual controversy between the victims and MGM as to whether the SAFETY Act bars their claims against MGM or not, MGM has filed suit to ask the courts with exclusive jurisdiction over SAFETY Act claims who is right in their interpretation.
- If MGM is right, the claims against MGM will be barred.
- If MGM is wrong, the claims against MGM will not be barred.
- This is left unsaid by MGM, but if the SAFETY Act is ruled to bar only some claims, then the victims will be able to proceed against MGM only as to the non-CSC-related claims.
Some takes, other than the obvious observation that this is terrible PR:
- It places the burden on the victims to retain and pay for competent counsel to argue this highly technical issue of statutory interpretation. That said, they will have no problem whatsoever locating elite counsel for this headline case.
- It is designed to sidestep the question whether MGM was itself negligent or liable for the events leading to the shooter having a protected perch within not the Route 91 concert venue, but rather within the MGM tower. The complaint does NOT allege that CSC provided any services whatsoever within the MGM tower, which is where the alleged terrorist was when he loaded weaponry into the MGM tower over days and then for minutes fired off rounds at the victims. The only thing the complaint alleges is that CSC provided security services at the Route 91 concert venue as follows: "security at the concert, for example security training, emergency response, evacuation, and adequacy of egress" (Nev. Complaint, Para. 11). I doubt the district courts will rule that CSC is the only possible defendant for claims about MGM's in-tower security being negligent, etc.
- I am not convinced by the statutory interpretation advocated for by MGM. It seems the SAFETY Act was intended to mean that suits about the adequacy of security provided by providers of qualified anti-terrorism security technology that are brought after acts of terrorism as defined by law are limited to just one cause of action against the provider of the qualified security, and cannot be brought against anyone else. But that would not necessarily mean that victims cannot bring suits in negligence, etc., against others based upon allegations not relating to the security. For example, how can the SAFETY Act require that CSC be the only defendant in all claims arising from the Route 91 concert, including the claims that argue that the negligence that caused the victims' harm occurred either in part or in full next door at the MGM where CSC was not even providing security?
- MGM may be right about the application of the SAFETY Act to the victims' claims that relate to improper security arrangements within the Route 91 concert venue. For example, if CSC provided the fences and ingress/egress planning, it seems the SAFETY Act may bar claims about trampling / no way out that are brought against MGM because they may only be brought against CSC.
- Recovery in these cases is going to be really hard even if the victims prevail here.
