This past week, it was announced that MGM was “suing” the victims of the Route 91 Harvest Festival shootings that occurred on October 1, 2017. The headlines were shocking, and the reactions on social media condemned MGM for its heartless legal maneuvering. In a world of “hot takes” where people want to get angry instead of informed, this is becoming all too common. Before you judge MGM, though, I would humbly suggest you consider three things.
1. MGM is Seeking Declaratory Relief, Not Money Damages.
MGM isn’t “suing” the victims in the traditional sense. MGM is filing for something called “declaratory relief.” Declaratory relief is what you seek when there is a dispute over the interpretation or application of the law and you want a judge to sort it out for you to give you finality and certainty. This is a departure from the typical rule stating that judges will not give “advisory opinions,” which means that you can’t just ask a judge what he or she thinks about an issue without actually having a claim.
MGM is trying to get a determination from a federal judge that a federal law on terrorism prevention applies to MGM to shield it from liability. In order to give the victims a fair chance to argue in opposition of this, MGM is required to include the victims in the lawsuit. It’s a concept that is incredibly important in the law: notice. MGM is placing all the victims on notice that they are asking the judge to rule that MGM is shielded from liability because they hired an appropriate third party to take anti-terrorism measures. MGM is required to bring the victims in and give them a full and fair opportunity to tell the judge why MGM should not be shielded from liability. If MGM didn’t include the victims in the suit, the ruling would not be effective against the victims because they would have had no chance to oppose MGM.
2. MGM Didn’t File First.
MGM was already facing hundreds of claims by victims and they waited almost a year to file for declaratory relief. Admittedly, this may have been a strategy in order to move every claim into federal court (which would likely be perceived as a more favorable venue for MGM in this case), but it also is worth remembering that MGM didn’t file the first lawsuit here – it is reacting to the lawsuits filed against it. The victims have every right to file suit, and we all sympathize with them. But when you start the war, the response is going to be... well, war-like. MGM’s lawyers have an obligation to the company to get the best result, and MGM’s board of directors have an obligation to its shareholders to preserve MGM’s assets as best as they can.
I know, it’s not a popular opinion to defend a large corporation or its lawyers, but I’m not trying to defend them – I’m trying to say that if the lawyers and the board decided not to file because they want to be “nice” to the victims, they’d arguably be violating their duties to the company. If this option exists, and the option appears to be the best plan to preserve MGM’s assets (when compared to the public relations hit they will take), the lawyers and the board are actually duty-bound to take the option. MGM is a corporation. No matter how many nice signs they post around Las Vegas or how much they tell you they care about you, the only people a company actually is supposed to care about are its shareholders.
To put it another way – are the same people who are upset at MGM for filing this declaratory relief suit also upset that MGM was defending the state court lawsuits? Should MGM have just filed an Answer to the Complaint admitting liability and handing over all of its money? Certainly not. We expect that when you get sued, you will defend yourself and a jury of your peers will decide who prevails. It doesn’t mean you don’t sympathize with the victims, it doesn’t even always mean you don’t think you did anything wrong. I’ve defended wrongful death claims where my client was 100% to blame and we all knew it. You defend the case respectfully, and professionally, and you try and find a solution where your client can live with the result and the victims’ families receive something that makes their lives a little more bearable after their loss.
3. This Will Likely be the Fastest Way to Resolve these Lawsuits.
People unfamiliar with the litigation process likely have no concept of just how long cases like this would take to resolve in state court. When you have 20 different lawsuits with hundreds of different plaintiffs, you are almost guaranteed that these suits would take the full five years allowed under the law to complete – or even longer, in some cases. By going directly to federal court and seeking declaratory relief for its primary defense, MGM is actually fast-tracking the resolution here. The sole or primary issue in its federal suit will be the application of that federal law, and the discovery and briefing on that one issue will almost certainly resolve well in advance of any of the individual state court suits. When you have one issue to brief that is purely legal and not factual, you bypass a lot of things that cause litigation to drag on and on. Given the high visibility of this case and how many individual claims are reliant on the resolution, I would expect that the issue would get resolved in less than two years and possibly even sooner than that if the attorneys press the matter.
What this means is that MGM is actually going to speed up the resolution one way or the other. If MGM wins the declaratory relief suit, then they’ll argue they should be dismissed from all the state court actions immediately. This would leave Live Nation and the other defendants as the sole remaining parties, and would exert enormous pressure on those parties to settle because MGM will no longer be there with their massive pockets to share the potential burden. The state court suits currently involve finger-pointing at each other among the defendants and that usually is a substantial impediment to settlement because no one can agree on who should pay the most money. If you read my prior article on this, I think the best arguments are against Live Nation for the lack of appropriate emergency exits, not against MGM anyway.
If MGM loses, then MGM will remain in the state court suit and would know that its plan of raising this defense is likely no longer viable. This will likely cause MGM to evaluate its fact-based defenses (since its legal defense is out the window), and when a company is left solely with fact-based defenses against massive potential exposure, they usually are more willing to come to the bargaining table. MGM is trying to avoid going to trial here because they know that a jury will likely sympathize with the victims and may punish a large corporation at trial regardless of what fact-based defenses MGM can raise.