Since Congress passed the SAFETY Act in 2002, our team has helped clients receive the significant tort liability benefits the Act offers to companies that sell products and services designed to protect the nation from terrorist threats.
It is important for companies to take all reasonable steps to mitigate risk and there may even be a fiduciary responsibility to do so. Taking advantage of the SAFETY Act’s substantial risk mitigation benefits becomes a matter of corporate responsibility and it is incumbent on companies to consider and pursue SAFETY Act coverage where appropriate. Only those providers whose products and services are reviewed and approved by the Department of Homeland Security (DHS) prior to an act of terrorism will reap the benefits of such tort protections should these products and services be implicated in third party lawsuits arising out of an act of terrorism. Therefore, it is imperative that companies seek counsel to properly guide them through this process.
We have considerable experience in advising clients with the following issues related to obtaining SAFTEY Act coverage:
- Counsel on the regulatory process to acquire coverage under the Act
- Advise on issues relating to scope of services and eligibility for coverage
- Draft and submit applications to DHS
- Interface and negotiate with DHS on applications
- Assist in moving stalled applications forward
Our team is considered one of the leaders in this area and has handled hundreds of SAFETY Act applications over the years. We have worked on SAFETY Act applications for some of the most high-profile emerging technologies and projects in the U.S. Our clients provide a wide variety of anti-terrorism products and services in many major industries, including information technology, transportation, telecommunications, biodefense, homeland security, cybersecurity, and aerospace/defense. Below are a few examples of our experience.
A major airline
Our team advised a major airline in obtaining tort liability protection for its TSA-approved Aircraft Operator Standard Security Program (AOSSP), a program. designed to protect the airline, its passengers and employees from terrorist and criminal activities. This first-of-its-kind SAFETY Act application included the development and implementation of physical and electronic security measures, tools and procedures.
A major government contractor
We represent a major government contractor in its applications for tort liability coverage under the SAFETY Act for its wide array of transportation security products. We counsel the client regarding issues relating to the various products that are eligible for coverage, and then draft and submit applications to DHS on its behalf.
A security guard services company
We represent a security services company with respect to its applications for tort liability protection under the SAFETY Act. This includes advising the client as to issues relating to security services and the scope of coverages, and then drafting and submitting applications to DHS on behalf of the company.
What is the SAFETY Act?
In the wake of 9/11, Congress passed the Homeland Security Act of 2002 with a little-known section called the "Support Anti-Terrorism by Fostering Effective Technologies Act of 2002,” or the “SAFETY Act.” The purpose of the SAFETY Act is to encourage the development and deployment of anti-terrorism products and services (collectively referred to by the statute and herein as “technologies”) by granting various risk management protections.
What Benefits Can the SAFETY Act Provide?
If DHS determines that your product or service is a "Qualified Anti-Terrorism Technology” (QATT) under the SAFETY Act, your Company will be given the following liability protections:
- Elimination of any punitive damages claims;
- A requirement that lawsuits involving the QATT be filed exclusively in federal court; and
- A cap on liability damages in an amount specified in your SAFETY Act coverage decision, which is to be covered by terrorism insurance (known as “Designation” coverage).
SAFETY Act Certification
If your QATT qualifies for the higher level “Certification” coverage, it will also receive the following:
- A rebuttable presumption of dismissal from all third-party lawsuits arising out of an act of terrorism involving the QATT (known as “Certification” coverage). The presumption can only be overcome by clear and convincing evidence that the seller of the QATT provided false information in connection with its SAFETY Act application.