MGM's suits against Las Vegas shooting victims are unprecedented
The lawsuits seek declaratory relief that MGM was not liable for the massacre.
MGM Resorts International has filed nine lawsuits across the country against 2,500 victims of the Oct. 1, 2017, mass shooting in Las Vegas in an unprecedented move that had plaintiffs lawyers accusing the entertainment conglomerate of forum shopping and defense lawyers scratching their heads.
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The lawsuits seek declaratory relief that MGM was not liable for the massacre. MGM’s move struck an immediate backlash on social media for targeting the victims and from plaintiffs lawyers, who accused the company of attempting to push all the litigation into more defense-friendly federal court.
“I really think this is sort of very insensitive. You’re really not caring about these victims,” said Mark Robinson of Newport Beach, California’s Robinson Calcagnie, who represents some of the Las Vegas victims. “They’re trying to create a federal case where there’s no federal case.”
MGM acknowledged such a move but insisted that federal court would be better for the victims. MGM owned the Mandalay Bay Resort and Casino, where shooter Stephen Paddock stored an arsenal of weapons. From the 32nd floor, he killed 58 people and injured hundreds at the Route 91 Harvest Festival, an open-air country music concert.
Does federal Safety Act protect MGM from liability?
Filed in federal courts, the suits cite the Support Anti-Terrorism by Fostering Effective Technologies Act of 2002, or Safety Act, a law passed in the wake of the Sept. 11, 2001, terrorist attacks to encourage the development of security technologies or services certified by the U.S. Department of Homeland Security. The law protects such companies from liability for injuries or deaths due to mass violence.
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“Congress provided that the federal courts were the correct place for such litigation relating to incidents of mass violence like this one where security services approved by the Department of Homeland Security were provided,” MGM Resorts spokeswoman Debra DeShong said in a statement. “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.”
Stunned
The move left some lawyers stunned. It’s expected to be a matter of first impression for the courts.
“As far as I know, this is the very first time the Safety Act has been tested,” said Dismas Locaria, a partner at Venable in Washington, D.C. “It’s definitely gotten a lot of people’s attention in my industry. We’re actively watching what happens here. But it’s all new ground, candidly.”
MGM filed the first suits on July 13 in the U.S. District Court for the Central District of California and the U.S. District Court for the District of Nevada, where most of the victims lived. The company then filed seven other suits on Tuesday in federal courts in Alaska, Arizona, Florida, Nevada, New York, Texas and Utah.
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Leading the cases are Brad Brian and Michael Doyen of Munger, Tolles & Olson in Los Angeles, along with lawyers from Wilson Elser Moskowitz Edelman & Dicker and Pisanelli Bice.
In all the cases, MGM named individual defendants who had sued in state courts but then voluntarily dismissed their cases, or planned to file a lawsuit. Robinson predicted that MGM would ask the U.S. Judicial Panel on Multidistrict Litigation to coordinate all the declaratory relief actions into multidistrict litigation before a single federal judge.
“That’s their whole goal: To MDL this thing,” he said.
‘Not designed to limit the liability of a hotel’
Robert Eglet, another lawyer who represents several of the victims, called MGM’s move “the most outrageous thing I have ever seen,” according to a statement released by his firm, Eglet Prince in Las Vegas. And he had another theory behind MGM’s move: “I believe that MGM did this because they did not like the Nevada federal judge that is currently assigned to our case.”
In that case, before U.S. District Judge Richard Boulware, MGM cited the Safety Act in a motion to dismiss filed on June 29. Eglet, Robinson and Kevin Boyle of Panish Shea & Boyle in Los Angeles have filed a motion to remand the case to Clark County District Court in Las Vegas.
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“The act was a response to the terrorist attack of Sept. 11, 2001, to encourage companies to get into the business of developing anti-terrorism technology,” they wrote in their June 29 motion to remand. “It was not designed to limit the liability of a hotel that, despite prior incidents, affirmatively assisted a gunman to shoot out of its window and people below.”
In the Las Vegas shooting cases, MGM had retained Contemporary Services Corp., a security services provider certified by the Department of Homeland Security. But MGM could have a big hurdle: While the act could apply to domestic terrorist acts, Homeland Security Secretary Kirstjen Nielsen has to declare the shooting an act of terrorism. And so far, almost no mass shootings have gotten such a designation, Locaria said.
“I’m not certain how they’re going to get over that hurdle,” Locaria said. “I’m a little confused by that myself.”
A request for comment from Munger Tolles wasn’t immediately returned.
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