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Tech & Sourcing @ Morgan Lewis

TECHNOLOGY, OUTSOURCING, AND COMMERCIAL TRANSACTIONS
NEWS FOR LAWYERS AND SOURCING PROFESSIONALS

More than 1,000 Support Anti-Terrorism by Fostering Effective Technologies Act (SAFETY Act) of 2,002 approvals have been granted by the US Department of Homeland Security (DHS) since the act’s inception. Many professional sports teams in the National Football League, Major League Baseball, and National Basketball Association have had their venues certified under the SAFETY Act. For example, New Era Field for the Buffalo Bills became the 14th NFL stadium to receive a SAFETY Act certification in October 2018. However, professional sports leagues do not have a monopoly on large sporting events that garner huge crowds—some universities have football stadiums with capacity for more than 100,000 people.

Any college or university that hosts a sporting event or large gathering should be concerned with providing the highest level of security and safety for its students, alumni, and other attendees. Stadiums, arenas, and other facilities that draw large crowds are eligible for certain protections in the event that they are sued after a terrorist attack if their security measures were previously vetted by the DHS and approved under the SAFETY Act.

The SAFETY Act incentivizes security activities for universities by providing SAFETY Act coverage for best practices programs, allowing universities to face significantly decreased liability if they were be the victim of a terrorist attack. Universities can apply for SAFETY Act protections by taking steps to invest in technology integration, command and control, and best practices for their venues, thereby significantly strengthening the security and safety of everyone at their locations. These best practices address most aspects of the venue’s security operations, including life safety, evacuations, patron screening, security equipment, delivery/loading dock screening, command and control, security personnel, access control, training, and more.

Limitations of Liability Under the SAFETY Act

The SAFETY Act offers substantial protections for both sellers of technologies designed to combat terrorism and consumers of that technology, such as universities. The SAFETY Act limits liability for claims that result from an act of terrorism when a qualified antiterrorism technology (defined by the law to include information technology) has been deployed.

The statute provides liability protection in two ways. First, it limits the total liability that results from such claims to the amount of liability insurance that the seller of the product is required to maintain, as determined by the DHS.

Second, and perhaps more significantly, the statute provides that if “a product liability or other lawsuit [is] filed for claims arising out of, relating to, or resulting from an act of terrorism when qualified anti-terrorism technologies . . . have been deployed in defense against or response or recovery from such act,” then the government contractor defense is available as a rebuttable presumption for the seller and users of the technology. This rebuttable presumption can only be overcome “by evidence showing that the Seller acted fraudulently or with willful misconduct in submitting information to the Secretary [of Homeland Security] during the course of the Secretary’s consideration of [the qualified antiterrorism technology].” Thus, the statute creates a method for companies to eliminate claims at the motion to dismiss stage of litigation.

Obtaining SAFETY Act Protections

In order to qualify for SAFETY Act protection, universities must prove they are effectively safeguarding their venues to meet the risks and threats unique to their location and demographics. SAFETY Act certification is sought through a rigorous application process, which requires applicants to analyze all security technologies, practices, and procedures from an operations standpoint to meet the stringent standards set forth by the DHS, and includes site visits throughout the process.