United States: What To Think About When The Unthinkable Happens

Last Updated: May 14 2019
Article by JP Ellis

The purpose of airports, airplanes and hotels is to provide transportation and accommodations. The mission of schools and churches is to provide places for children and congregants to learn and worship. And restaurants and concert arenas are where friends and families gather together to have a good time. But all of these places have also been the target of horrific acts of violence, mass shootings and terrorist attacks.

When the unthinkable happens, those who manage the foregoing (if they are lucky enough to survive) are suddenly confronted with waves of grief, anger, glaring media focus and as time goes on, an intense period of investigation to find out what could have been done to prevent these attacks. And if a perception of fault is formed, there can also be unthinkable reputational and legal consequences.

Responding to these types of incidents requires organizations to deal with a wide array of subjects which are far removed from the purpose for which they exist. Given the potential consequences, it is essential that they seek experienced advice and assistance regarding emergency response, victim assistance, insurance coverage, investigatory cooperation, legal representation and media communication. In addition to the foregoing, it is essential that the organization be compassionate and ever mindful of what victims and survivors are going through.

The lawyers at Clyde & Co have rendered assistance and advice in all these areas during the course of providing representation around the globe. Our clients include schools, churches, airlines and concert venues that have been the subject of highly publicized attacks ranging from the 9/11 terrorist attacks to mass shootings by deranged individuals. We have learned that whenever such a tragedy strikes, our role is multi-purposed. 

The first thing we recommend to our clients is always the same. First and foremost, victims and their families need support. If an organization is unfamiliar with how to provide some, we have a list of companies and organizations that can assist and provide the support that victims and their families need. 

The second and equally important task is to provide support to employees who are either in shock about what happened or too consumed trying to help others that they fail to realize the traumatic impact that they may have suffered. Sometimes the impact may not be immediately recognized so putting in place a protocol that allows employees to deal with these issues over time is something that we are familiar with and able to implement as needed.

Beyond these initial and immediate needs, it is important from a reputational and risk perspective to understand that we live in an environment where social media and 24/7 news cycles can make it seem that the scene of the attack has suddenly become fishbowl. With the benefit of 20/20 hindsight, many so called "experts," with no real knowledge of the organization or the details of what just occurred, nonetheless offer their views on what happened and what could have been done to prevent the attack. Couple that with the grief that victims and their families sometimes channel into anger and an organization which has built a stellar reputation can suddenly watch it vanish right before their eyes and the eyes of the world.

While no two events are ever precisely the same, it is our experience that organizations and employees need to be assured that the "fault" for these types of horrific attacks lies with those who perpetrate them. It is important to remember that we live in a society where every public space and gathering represents a target for those intent on causing maximum harm. Does that mean that every organization or business which provides a gathering place for the public at large, no matter how big or small, must implement security measures that can stop all forms of potential attack? We don't think that the law or societal mores require such measures. 

Organizations impacted by these events need to understand where actual fault lies and to be assisted by respected individuals capable of communicating this fact to media and the public at large. We frequently work with such individuals and can recommend and assist in identifying information that can provide the appropriate context for the tragedy that occurred. That information will, of course, become more detailed as time goes by and in that regard, it is important to let the facts develop as the investigation unfolds. 

Cooperation with investigatory authorities is morally and practically necessary and must be given an equal footing with all the other issues being addressed. Events like this almost always result in one or more reports issued by governmental bodies. While the specter of politics entering into such reports cannot be ignored, we have found that cooperating from the outset gains trust and allows one to provide context and facts that will have an impact on the overall conclusions reached. We have dealt with high profile inquiries in this area and found that this approach has resulted in a relatively balanced report.

In addition to the foregoing, an organization that has been the target of an attack must be cognizant of the prospect of litigation. Our vast global experience in this area has taught us that insurers must be immediately put on notice and a spirit of cooperation developed to define coverages and the types of claims that may be presented. We have litigated these types of claims on a global scale and understand the needs of insurers and insureds in responding to these types of claims and the need to formulate as soon as practicable the appropriate legal arguments.

In our opinion, the core of such arguments almost always involves the legal concepts of foreseeability, duty and proximate causation. We also understand that these arguments must be supported by substantive experts with stellar credentials and credibility. We are well versed with the foregoing and have worked with subject matter experts who can appropriately communicate the key elements of the arguments that are identified. We similarly understand and pride ourselves in effectively presenting these arguments to a court in a respectful but effective manner, keeping in mind the key mission of the organizations that we represent.

While we truly hope that no such future attacks occur, we stand ready to assist any organization that has experienced such a horrific attack or any organization that wishes to engage in contingency planning. Knowing what to expect and having confidence in those who represent you helps you manage the aftermath of this type of tragedy in a way that respects the loss suffered by the victims, provides support for employees and effectively communicates to investigators, media and the courts, the appropriate context in which these events must be examined.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
JP Ellis
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions