MGM Faces Liability For Mass Shooting
- Hundreds of victims of the Las Vegas shooting are filing lawsuits against the operator of the hotel where the gunman was staying.
- The lawsuits argue that the hotel and its parent company should have taken greater security measures.
- If the victims win in court, it could change how hotels handle security.
Hundreds of victims of the Las Vegas shooting have filed lawsuits against the Mandalay Bay Resort and Casino and its parent company MGM Resorts International.
Several lawsuits — the largest of which was filed on behalf of 450 people — attempt to hold MGM legally liable for the shooting, which killed 58 people and injured hundreds more. Victims are additionally suing the shooter Stephen Paddock's estate and the concert organizer Live Nation Entertainment Inc. as well as, in some cases, the manufacturer of the bump stocks that allowed Paddock to fire as if he were using automatic weapons.
The crux of the lawsuits' arguments is that MGM and the Mandalay Bay failed to take preventive measures that might have foiled the attack. Plaintiffs argue that staff members should have been better trained to spot red flags with Paddock.
Over the three days between when Paddock checked in to the hotel and fired from his window at a concert across the street, Paddock took at least 10 suitcases filled with firearms into his room. Police officials said Paddock also constructed an elaborate surveillance system in the hotel, placing two cameras in the hallway outside his suite — one on a service cart — as well as a camera in his door's peephole.
"The incident that took place on October 1st was a terrible tragedy perpetrated by an evil man," MGM said in a statement to Business Insider. "These kinds of lawsuits are not unexpected and we intend to defend ourselves against them. That said, out of respect for the victims, we will give our response through the appropriate legal channels."
In October, the Nevada Supreme Court found that MGM could be held liable in a 2010 assault on a California couple at one of the company's hotels, the Las Vegas Review-Journal reported. The court ruled that the attack was “foreseeable” because there had been similar cases of violence at the hotel.
The question of whether the Las Vegas shooting was foreseeable is at the center of the Mandalay Bay lawsuits.
With several high-profile mass shootings having taken place in the US before the Las Vegas shooting, attorneys may argue that hotels and other venues should know to expand measures to try to prevent them, legal experts told Business Insider before any cases were filed.
"Foreseeability is one of the key components of liability," said Dick Hudak, a managing partner of Resort Security Consulting.
Heidi Li Feldman, a professor at Georgetown Law School, says it's "entirely feasible" that an attorney would make this argument based on the fact that mass shootings have taken place at other entertainment venues.
"If Congress isn't regulating gun ownership, it is going to be private parties ... who end up regulating their own premises," Feldman said.
The hotel industry has no national standards for security, and hotels aren't typically held accountable for guests' behavior. But if any of the hundreds of victims suing Mandalay Bay win their case, it could set a new precedent for the way hotels handle security.
Chariflaw Client prevails in Trademark Dispute
FORT LAUDERDALE — CharifLaw filed an injunction on behalf of Miami chiropractor Dr. Craig Kaler, against a competitor who began illegally using his business name. The injunction was based on trademark infringement.
Craig H. Kaler DC PA d/b/a Ocean Chiropractic Center of Aventura filed a complaint on April 27 in the Broward Circuit Court against the defendant, located in Plantation, alleging that the company breached was violating its trademark rights.
Dr. Kaler held his competitor responsible for consumer and brand confusion, as well as damage to his long established business goodwill, because the defendant began using essentially the same name as Dr. Kaler's, which had been registered with the State of Florida for years.
The case was resolved without a trial. The other party agreed to change their name.
Broward Circuit Court Case number 17-007969
David v Goliath - Small Business Fights Back at Trademark Infringement
HYANNIS — After eight years operating her eco-friendly boutique on South Street, Amanda Converse had built up a loyal following of customers who came to her store, Shift Eco-Boutique, looking for ethically and sustainably made clothes and accessories.
But a rebranding campaign by an upscale Boston-based women’s clothier has thrown her company’s name recognition into disarray and pushed Converse to the brink of legal action to defend her territory.
Converse, a Falmouth native, said the renaming of stores in Mashpee and Chatham once called Resort but now dubbed SHIFT has caused confusion for her customers and infringes on her established brand. She said she has documented 20 instances since the April renaming of her customers contacting the SHIFT stores thinking they were reaching her Shift Eco-Boutique.
“In addition to being disrespectful to an established business to come into an area and create confusion, it can be harmful to my brand,” Converse said.
The Resort stores in Mashpee and Chatham are owned by In the Pink Inc., a Boston-based retailer that, at one point, owned 11 women’s apparel shops on the Cape and Islands and in Boston. The company branded itself as a Lilly Pulitzer Signature Store, but all the In the Pink locations except for the Nantucket, Mashpee and Chatham locations now called SHIFT were sold last week to Lilly Pulitzer, according to an Instagram post by the company’s founder, Gordon Russell.
A representative from In the Pink declined to comment for this story.
The word shift refers to a style of dress that is short and sleeveless with straight lines. It was popularized by Lily Pulitzer in the 1960s, but the style has been around since the 1920s. The SHIFT website notes the stores are “named after the classic dress that started it all.”
In addition to the Resort locations on the Cape, In the Pink operated a women’s boutique on Nantucket named SHIFT that opened about a year after Converse started Shift Eco-Boutique. Converse said the island location was never a problem because of its distance from Hyannis, but with similarly named stores now just miles from her South Street storefront it’s a more pressing problem.
“The name has meant so much to me and this community,” she said. “I’ve worked hard to establish the brand and have it seen in a positive light. Any threat to that is not OK.”
Converse said she learned about the SHIFT stores April 17; nine days later, she registered Shift Eco-Boutique as a trademark with the state and noted in the filing that she has been using the name since 2009. She said her attorney, Barnstable lawyer Eugene Curry, has sent cease-and-desist letters to In the Pink with no response. If there’s no action by them before summer’s end, Converse said she’ll file a lawsuit.
“I hope that they come to their senses,” she said.
Converse isn’t the only retailer in recent memory to face a trademark battle from an off-Cape brand. Cape Cloth, a Dennis company, faced an objection from Italian sportswear maker Diadora over the design of its logo, which is an angular, stylized representation of the Cape. Diadora claimed the logo was too close to its left-facing chevron angled upward that tapers off to a thin point and would be confusing to customers.
The case was eventually settled with undisclosed terms, and Cape Cloth has continued to use its logo.
Cape Cloth owner Sean Fitzpatrick said the experience of fighting off a larger, off-Cape company was a “massive” issue for him.
“I didn’t want to seem petty, and I tried to downplay it to my customer base, but behind the scenes it was a really big deal,” he said. “Starting anything, especially a business, is hard on its own. Just to survive in the free market is difficult. When someone who has deeper pockets affects what you’re doing, it’s really difficult.”
Much as Fitzpatrick did, Converse, who is the daughter of Cape Cod Times sports writer Geoff Converse, is rallying locals to her defense. Multiple comments In the Pink’s social media channels have come to Shift Eco-Boutique’s defense, and a GoFundMe has raised $2,300 toward her pending legal expenses.
“The only thing you can do is remain positive and reach out to the people around you, especially those in the Cape Cod business community,” Fitzpatrick said. “Amanda has been somebody who is a huge advocate for local businesses, entrepreneurship and community involvement. Hopefully that karma will come back to her on that front.”
If another business is infringing, click https://www.chariflaw.com/business/
Florida's Stand Your Ground Law Does Not Grant Civil Immunity
Florida Supreme Court Limits Stand Your Ground
The Florida Supreme Court ruled that A Stand-Your-Ground victory in criminal court doesn't help in a civil lawsuit.
Justices ruled in the case of a man named Nirav Patel, who struck a Tampa bar patron in the eye with a cocktail glass. A criminal-court judge ruled that Patel was acting in self-defense and granted him immunity from a charge of felony battery.
But the injured patron, Ketan Kumar, filed a lawsuit against Patel, who argued that the criminal court’s decision applied in the newly filed civil case. The local appeals court agreed.
The Florida Supreme Court, however, reversed the decision, ruling that a judge in a civil case would have to determine whether Patel was immune from a civil lawsuit.
Critics have long maintained that Florida’s 2005 Stand Your Ground law has fostered a shoot-first mentality among citizens and given criminals a pass at justice.
The law eliminated a citizen’s duty to retreat before using lethal force while facing someone who may pose a threat of death or “great bodily harm.” And more vexing for prosecutors, it gave judges more leeway to dismiss a criminal charge before the case is ever heard by a jury.
In South Florida, courts have granted immunity to defendants charged in controversial killings. That includes Miami’s Greyston Garcia, who beat a murder charge after stabbing a car-radio thief who wielded only a bag full of car radios. The appeals courts also granted immunity to a security guard who fatally shot two unarmed men in a Miami-Dade Chili’s parking lot after a fight.
This year, the Legislature updated the law, forcing prosecutors to shoulder the legal burden of disproving a self-defense claim at the “immunity” hearings. Statewide, prosecutors opposed the bill, which was pushed by politically powerful National Rifle Association.
A Miami-Dade judge ruled the updated law is unconstitutional, setting up another round of appellate legal battles.
Thursday’s ruling by the Florida Supreme Court does not mean civil-court judges cannot grant immunity to someone being sued.
That’s already happened in one high-profile Miami case – that of Reynaldo Muñoz, the deaf man fatally shot by a homeowner while trying to steal a WaveRunner from the back of a home in Miami Shores.
Prosecutors did not charge homeowner Yasmin Davis, but did not rule the shooting was “justified.” Muñoz’s family sued the Davises, but Miami-Dade Circuit Judge Stanford Blake — after a lengthy hearing poring over the evidence — ruled they were immune from the lawsuit.
Muñoz’s family appealed the ruling and lost.
Your Post-Irma 48 Hours
Hurricane Irma Claims Checklist
As soon as it is possible to do so, both individual and business insureds should take the following steps to maximize coverage for their Hurricane Irma claims.
• Evaluate and document the damage. Take photographs of the exterior and interior of property, including personal property. This is important to support your claim and to avoid any dispute with your insurer over what was damaged by the storm and the condition of the property post-storm and before mitigation efforts.
• Locate policies. Gather all potentially applicable insurance policies (wind-only, flood, property). Call your insurance agent or insurer if you are having trouble finding your policy. As we discussed in our article last week, while Florida law requires residential property insurers to offer coverage for windstorms resulting from hurricanes, commercial nonresidential property insurers are not required to provide coverage for windstorm damage. Thus, Hurricane Irma damage may implicate multiple separate policy forms. Locate and review your property policy, wind-only policy (if applicable) and flood policy.
• Provide prompt written notice to each insurer. It is extremely important to provide written notice to your insurance agent and insurance company as soon as possible post-storm. Policies typically require "prompt notice" or "notice as soon as practicable" and Florida courts have routinely upheld these provisions, oftentimes affirming coverage denials where insureds fail to provide prompt notice after discovering damage. At a minimum, provide written notice of damage to all potentially applicable insurers (windstorm, flood, property) even if you are unsure whether or not your losses will exceed your deductible. It is better to ensure a timely submission now rather than risk a coverage denial based on late notice when you later determine the damage you thought was within your deductible was actually far more significant and costly. Your written notice should include: name and contact information for the insured, the location of the loss/damage, the date and time that the damage occurred and a brief description of the loss.
• Take steps to mitigate the damage. Your policy likely covers expenses incurred in taking preventative measures to avoid further loss post-Irma, such as boarding up broken windows. Indeed, the applicable policies will require that you take action to mitigate existing damage and prevent any further damage to the property. Nonetheless, it is important to run any mitigation plans by your insurer after filing your claim to make sure that your efforts will not interfere with their investigation of the damage. Requesting insurer consent to estimated costs of mitigation efforts now will also expedite your reimbursement of these costs during the claims process.
• Debris removal costs are likely covered. Your policy likely covers costs incurred in removing debris from your policy. This coverage is usually stated as a percentage of your total limits. Importantly, this coverage may have a different reporting deadline than other policy coverages, such as 90 or 180 days after the loss.
• Be cognizant of proof of loss deadlines. Check the proof of loss deadlines in each potentially applicable policy. If the deadline is short (120 days or less), considering asking your insurer now, in writing, for an extension of that deadline, and preserve evidence of that request. Note, however, that your deadline will not be extended unless you receive written confirmation of the extension from your insurer.
• Prepare a proof of loss. The proof of loss is a document that identifies the property damaged and documents all amounts incurred. Oftentimes the proof of claim or proof of loss will include items like before and after photographs, receipts, invoices, quotes and other records. Be sure to check with your insurance company about the specific information needed as well as the applicable deadline for submitting the proof of loss. As discussed above, consider requesting an extension of this deadline in writing.
• Be cognizant of your duties under the policy. Property insurers are entitled to conduct a reasonable investigation of the loss with the cooperation of the insured. Most policies will include a section titled "Duties in the Event of Loss," outlining the insured's cooperation requirements such as permitting the insurer to conduct an "examination under oath" (EUO), requiring that the insured provide certain documents or maintenance records, or allowing the insurer to inspect the property. Insureds should consider consulting knowledgeable coverage counsel to help guide them through what the policy does and does not require of them, as well as guiding them through the claims process.
Coverage for Lost Business Income for Commercial Insureds
Beyond the damage to insured property caused by Hurricane Irma, business insureds face lost earnings in the time it takes to repair and remediate this property damage or even to simply regain access to the affected area. Fortunately, your policy may include business interruption insurance coverage that is designed to specifically address these loss scenarios. This coverage is designed to cover lost income or profits caused by the interruption of business activities due to physical damage to property. Business interruption and related coverage endorsements may cover loss resulting from an inability to open for business; reduction in business income when the business remains open but cannot operate at full capacity; loss resulting from civil authority orders barring access to an insured business; and loss resulting from physical impediments to accessing the insured business, such as flooded roads. In addition, these policies may include coverage for lost income due to service and utility outages effecting business interruptions—an important coverage in light of the current power outage estimates.
Importantly, the damage necessary to trigger these coverages need not be to your insured property—it may be enough that the damage occurred at the property of a key vendor or supplier, or simply in the vicinity of the business, so long as it results in lost earnings to you. This type of coverage, known as "contingent business interruption" does, however, require that the physical damage be of the type covered under the applicable policy. This coverage may include the loss of key components in the company's or retail outlet's supply or distribution chain and the inability to ship goods into or out of a retail facility, warehouse or other location necessary to the operation of the business or retail outlet.
It is crucial for commercial insureds to act now to ensure that their claims for loss of business income and other business-interruption losses are honored and paid in full by their insurers. Like the coverages discussed above, business-interruption coverage typically requires that notice of a claim be made "as soon as practicable," and also typically have strict deadlines within which proofs of loss must be submitted. A failure to comply with these deadlines may bar coverage. To maximize the value of their business-interruption claims, commercial insureds should thus immediately provide written notice of business-interruption losses, whether they are losses for a full shutdown, a partial shutdown or a break in the supply chain or vendor's damage.
Florida insureds should take the steps outlined above and consult experienced insurance coverage counsel to help guide them through the claims process. Businesses may also need to consider retaining experienced accounting firms to help quantify and best present these losses to the insurer. For all Florida insureds, quick action now will help ensure that you receive the full benefit of coverage from your policies—the benefit that you bargained for.
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