Evan D. WolffMaida Oringher LernerMatthew B. Welling

After over a decade, the first action has been filed that may test the bounds of the Support Anti-Terrorism by Fostering Effective Technologies Act (“SAFETY Act”) of 2002. MGM Resorts International recently filed suit related to the October 2017 Mandalay Bay country music concert shooting, asking a federal court to rule that it cannot be held liable because the security technology used at the concert was certified by the Department of Homeland Security (“DHS”) under the SAFETY Act.

The SAFETY Act, enacted as part of the Homeland Security Act of 2002 (Pub. L. No. 107-296), provides incentives for the development and deployment of anti-terrorism technologies, including products, services and software (or combinations thereof), by creating systems of risk and litigation management. To benefit from SAFETY Act protections, a company must apply to DHS for approval of its technology as a qualified anti-terrorism technology (“QATT”). Upon submission of a SAFETY Act application, DHS engages in a detailed evaluation of the technology, including the effectiveness of the technology’s anti-terrorism capability.

Once a technology is deemed qualified, it is entitled, under federal law, to significant limitations on liability which may otherwise stem from a designated “act of terrorism.” For technology DHS “certifies” as qualified under the Act, the owner, seller and/or provider of the QATT is presumptively entitled to immunity from all tort claims for damages arising out of an act of terrorism associated with the protect or service. Alternatively, if the product or service receives a “designation” under the Act, potential tort liability is limited to the amount of insurance that DHS determines the applicant should maintain in connection with such losses. Significantly, the SAFETY Act affords protection not only to the owner of the QATT, it also protects other entities in the supply and distribution chains for the QATT products and services.

While DHS has approved over 800 SAFETY Act applications to date, the MGM suit is the first where a defense under the Act has been raised before a court. A key issue in the MGM suit will be whether the shootings were an “act of terrorism” under the Act. Because the suit is the first to raise a defense under the Act, the case will likely be of interest broadly to companies owning or deploying SAFETY Act QATTs, as well as those considering applications to DHS.