Hotel sues victims

In a preemptive move, MGM Resorts International—which owns Mandalay Bay—filed more than a thousand July 20 complaints in U.S. District Court in Los Angeles against victims of the Las Vegas concert shooting.

The filing claims the Mandalay Bay resort, where the Oct. 1, 2017 attack originated, did not incur liability as a result of the attack, and the corporation wants the court to tell the victims so and dismiss already-filed lawsuits.

A gunman, Stephen Paddock, fired on the concert crowd of about 22,000 from a 32nd floor room in Mandalay Bay, killing 58 people and wounding hundreds of others, then killing himself.

Fortune magazine’s report on the corporate legal action posted online opens with a photo of the MGM sign in Las Vegas bearing the sentence, “Our prayers for the victims.” A boycott of the companies is underway.

An MGM statement reads in part, “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.”

The rationale for the unusual legal action is a federal law enacted as a result of the September 11 tragedies, the “Support Anti-Terrorism by Fostering Effective Technologies Act of 2002,” or the Technologies Act. According to the trade website Business Insurance, “The federal law … limits liability for terrorist attacks when qualified anti-terrorism technologies have be deployed. Shortly after the shooting, an FBI spokesman reportedly said at a news conference that there was no evidence indicating that the shooting was an act of terrorism.”

The Technologies Act “precludes any finding of liability against plaintiffs for any claim for injuries arising out of or related to Paddock’s mass attack,” the hotel filing said.

However, some sources say the Technologies Act protection is not available to just anyone. In order to be eligible for liability protection under the law, the U.S. Department of Homeland Security would have to have conducted “comprehensive” testing of services, designs or technology used on the night of the concert killings and determined they were safe for use as intended, and the secretary of Homeland Security—currently Kirstjen Nielsen, Elaine Duke on the night of the killings—must designate the incident an act of terrorism.

According to the American Civil Liberties Union, the 2001 PATRIOT Act—Public law 107-52—defined “domestic terrorism” this way: “A person engages in domestic terrorism if they do an act ‘dangerous to human life’ that is a violation of the criminal laws of a state or the United States, if the act appears to be intended to: (i) intimidate or coerce a civilian population; (ii) influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination or kidnapping.”

The FBI has declined to call the act terrorism because no motive has been established.

Business Insurance reported further that the Technologies Act—known as Public law 107-296—"was passed in response to reluctance by private sector security companies to deploy security technologies in civilian settings due to liability concerns. Among other things, the law limits the liability of the sellers of security services to the amount of insurance that DHS determines it should buy, bars claims against downstream users of the security technology and requires that disputes over damages be heard in federal court.”

It is not known if MGM/Mandalay Bay was using new or innovative services or technology that had been certified by DHS, but the corporation claims it hired a security service that is certified, though it has not identified it.

The shooter was in the hotel for six days, adding a second suite four days into his stay, and bringing in a substantial arsenal—including 14 .223-caliber AR-15-style rifles, seven .308-caliber AR-10-style rifles, a .38-caliber Smith & Wesson Model 342 revolver and a .308-caliber Ruger bolt-action rifle.

Bringing juice into play

The corporation has argued that there was no way it could have foreseen the attack, no “numerous similar” previous incidents. But the Baltimore Post Examiner published a section of a plaintiff court document that reads:

“Short of pulling the trigger, a nearly identical situation to the shooting happened at Mandalay Bay on November 29, 2014. On that day, a housekeeping attendant discovered that a guest on the 24th floor had brought multiple semi-automatic assault rifles—and a silencer—in his Mandalay Bay room. One of the high-powered rifles was equipped with a scope and ‘positioned … so that it was pointed out of his hotel room window at the Mandalay Bay and towards the Las Vegas Strip.’ The weapon’s owner appeared to be set up to shoot at a large mass of people on the Las Vegas Strip, and he was ultimately sentenced to 40 months in prison. The above information was gleaned from federal court filings. Plaintiffs have submitted [Freedom of Information Act] requests to several agencies involved with the incident, in hopes of obtaining additional information on their individual investigations. In response to these requests, Plaintiffs have learned of twenty-eight (28) other ‘suspicious situations’ that share a similar categorization as this incident, which plaintiffs must investigate.”

The Nevada casino industry has long been aggressive in seeking to escape liability in ways other than defending against it—if possible, by keeping disputes from reaching the trial stage, often by employing its considerable political clout.

Trial consultant Fred Del Marva has advised lawyers considering suing casinos that they will “fight you right to the ground. Make sure you can finance [your case], forget about arbitration and mediation and forget about sending out a letter of demand. It’s a waste of time. They’ll take you all the way up until experts’ depositions, then after that, maybe they’ll start making decisions.”

After the 1991 Tailhook convention, where Navy and Marine flyers staged a hallway gauntlet in which their women colleagues were mauled and assaulted, Lt. Paula Coughlin—who was brushed off in official channels—went public with her complaints about her treatment at the event in the Las Vegas Hilton. The result was replacement of highly placed officials and changes in military procedures.

Coughlin received an out-of-court settlement from the Tailhook organization and $5.3 million in damages from the Hilton after a jury trial, the jurors having concluded the hotel was negligent in not providing security.

Subsequently, what one journalist called a murderer’s row of powerful lobbyists was deployed to win special treatment under Nevada laws for the casino industry at the 1995 Nevada Legislature. Legislators were receptive. Nevada law was already full of hundreds of liability waivers, from rental storage yards to physicians. Lawmakers hand them out like cookies, and, in this case, it was the casino industry that was seeking the measure, an industry that normally provides plenty of campaign “contributions.”

The bill, as originally drafted, contained language that would have voided Coughlin’s award from the jury, but it was likely included in the bill to draw attention away from the rest of the measure, and it worked like a charm. Coughlin flew to Nevada to fight it, and her presence in the legislative halls kept the eyes of the press and public off the ball.

The legislation was approved after the anti-Coughlin language was stripped from it, making it burdensome to sue casino properties for lax security, and the consequences quickly became apparent.

In January 1997, just days after the sentencing of a suspect for an August 1996 rape, armed robbery and attempted murder at the Reno Hilton, the hotel sharply reduced its security, losing many of its most experienced guards.

That same month, an 18 year-old-man followed a seven-year-old girl, Sherrice Iverson, into a women’s bathroom where he molested and murdered her.

Such incidents were now shielded from legal consequences for hotels. Ω