Yankee fans root for a first-place team and usually watch their heroes win when they visit the new Yankee Stadium in New York. But fans of the Bronx Bombers have recently lost something too, something many sports fans around the country will probably lose soon: the right to sue the team for damages if there's a terrorist attack. Meanwhile, another team can claim victory every time the Yankees take the field -- tort reform advocates.

In July, Yankee Stadium became the first sports facility to earn the coveted federal "Safety Act" designation. That means the facility has passed a battery of tests and won approval from the Department of Homeland Security, so the Yankees have been granted a wide-ranging immunity from future lawsuits that might stem from terrorist attacks.

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Dozens of defense companies have been named to the Safety Act approved list since DHS started handing out the designation in 2004. But Yankees Stadium is the first of what is expected to be many sports venues whose operators will then be immune from standard lawsuits that might be filed by future victims of terrorist attacks. (The National Football League was placed on the Safety Act list in 2008, but the designation was vague and probably only applies to the Super Bowl, experts say.)

 

Supporters say the Safety Act gives strong incentives for firms to raise their security standards, and encourages innovation. Opponents say it unfairly terminates a basic consumer right, makes people less safe and serves as an under-the-radar version of tort reform. As evidence, opponents point out that the Safety Act framework is being copied for many other legislative initiatives, including the failed effort to pass a comprehensive Cybersecurity Bill this year.

It's the mother of all liability waivers, says George Washington University law Professor Ellen Zavian, an expert in sports law. But the question is, do fans know about it?

"There's waivers on ticket stubs … but I haven't seen any waivers that state, 'Oh by the way  … we can waive (liability) for terrorism attacks.'" Zavian said. "How did this get under the radar? Are people really supportive of that? I think attendees should know what they are waiving when they enter a facility, and I don't think they do."

The Safety Act (SAFETY is actually an acronym for "Support Anti-Terrorism by Fostering Effective Technologies") was passed as part of the legislation that created the Department of Homeland Security in 2002. And that's part of the problem, argues John Bowman, director of federal relations for the American Association for Justice.

"Clearly this was done in haste after 9/11," he said. "It was a fear-driven time. There was dramatic tort reform. It's fair to say these tort reformers took advantage of that moment. ...We disagree with the way the law is structured. We think it's not very helpful for fans if something happened."

The law would clearly be helpful to the Yankees if something happened. A report by the European Organisation for Security, which is helping the European Union consider similar terrorism-related tort reform, says that $40 billion in private claims was paid out by insurers in the wake of 9/11, with billions more in claims still unsettled. The Safety Act would prevent many such lawsuits after a future 9/11-style attack.

'A marketing edge'
But the law does much more than offer the civil equivalent of a get-out-of-jail-free card, supporters argue. Bob Karl, who operates SafetyActConsultants.com and has helped dozens of companies achieve certification, says liability protection is absolutely essential for companies deploying newfangled anti-terrorism technologies. Companies are concerned that with each new gadget they deploy, they incur new liability, he said.

Karl gave the example of a company that had invented a new radioactivity detector for cargo containers on ships. Selling the detectors would be, initially, a tiny $10 million annual business for the multibillion-dollar company, but the firm feared that if something went wrong with its product, victims could sue for the entirety of the firm's value. It makes no sense for companies to take on risk like that, and the firm didn't start selling its detectors until it achieved Safety Act designation, he said. He declined to name the firm.

"It's very real concern, and Congress had that concern when it passed the law," he said.

With Safety Act protection, companies can afford to deploy unproven or newer technologies, knowing their risks are lower, he said. That makes everyone safer.

Also, he insisted, the Office of Safety Act Implementation, which grants the certification, has very high standards, and firms become safer merely by taking on the process.

"The fear is there would be some kind of double-secret handshake and they would just hand these things out. … Well, that's not how it happens," he said. Many applications take years before they achieve final approvals. "I had one application recently that was 5,000 pages long," Karl said.

Meanwhile, Safety Act designation can give smaller companies, "a marketing edge," he said. "It's kind of like a Good Housekeeping seal of approval."

But even Karl agrees that the Safety Act was "tort reform at a very high level." Safety Act designation makes it impossible to sue a company after a terrorist attack for standard negligence – a ticket-holder bringing in an explosive device in a purse that wasn’t detected during standard bag inspection by entrance guards, for instance. But it also grants a host of other legal rights. Victims who wish to pursue legal action after a terrorist attack can only do so in federal court; joint and several liability (in which any involved party can be liable for an entire disaster) is eliminated, which reduces firms' exposure; and there is a ban on punitive damages on interest accumulation related to any potential judgment. Victims cannot sue for negligence; the only way to pierce Safety Act immunity is to prove fraud during the application process, or actual malice by the company.

Another concern expressed by opponents is that the definition of a terrorist attack is left vague by the law – essentially, a terrorist attack is anything the Department of Homeland Security calls a terrorist attack, which could include domestic terrorism, such as the Oklahoma City bombing in 1995 or even the recent Aurora, Colo., mass shooting.

One likely outcome of Safety Act protections could be lower insurance premiums for companies involved, thanks to caps on costs that could arise from a terrorist attack.

Bradley Shear, a civil litigation attorney and opponent of the Safety Act, said he didn't understand what was in it for fans.

"I think this is well intentioned, but can it equally protect businesses and the average consumer?" he said. "In return for the liability shield, what is the public getting? Are Yankees tickets going to be cheaper because they've been able to obtain Safety Act (designation)? Will the cost of a hot dog or a beer be any less?"

Or, as another opponent of the legislation said, has it just created a new consulting industry that earns millions helping companies navigate the Safety Act application process? A quick search of Google shows there is indeed a thriving industry in Safety Act consulting.

David McWhorter, a consultant at Catalyst Partners in Washington D.C., which helped the Yankees with its Safety Act application, said critics have a misunderstanding of the approval process. Most companies are forced to raise their insurance coverage by the Office of Safety Act implementation, he said, adding that he couldn’t think of a single case where firms were allowed to reduce their coverage. And insurance firms aren't yet offering security firms the equivalent of a "good driver discount," either.

In other words, they're not getting Safety Act coverage to save money today, he says. They do it because they become safer through the process, and because they want cost certainty.

"It's important for a facility to get a pre-emptive cap on liability," he said. "For any venue that has met the Safety Act standards, patrons can feel assured they are among the best of the best when comes to security. It’s a win-win for the public and for that venue."

McWhorter said when companies approach him for help with their application, he generally spends a lot of time consulting on how to improve the firm's security guard hiring and training processes. He also helps companies set up "red team" exercises -- mock attacks  -- to prepare them for the rigorous Homeland Security evaluation. 

"It's not inexpensive to provide security to a venue that holds 10,000 to 60,000 people," he said. "You have to consider hiring, training, exercises, cameras, alarms, mass notification systems, definition of the command structure, metal detectors, the auditing process, and so on." 

Sticking out like a sore thumb
Browsing the list of Safety Act designated technologies on the Department of Homeland Security's website, visitors see a list of both familiar and unfamiliar names: ADT Security, Unisys and Securitas are listed alongside Massachusetts-based Ahura Scientific, for example. Many of the approved technologies are what you might expect: In March, American Science & Engineering got approval for X-Ray inspection systems; the aforementioned Ahura – which recently changed its name to Thermo Scientific -- lists handheld devices that identify chemicals using "Raman spectroscopy."

On such a list, the Yankees stick out a bit like a sore thumb.

"New York Yankees d/b/a The New York Yankees Baseball Club provides The New York Yankees Security Program," the Safety Act office announcement says. "The Technology is a comprehensive integrated security system, which is comprised of physical and electronic security measures, tools and procedures designed to detect, deter, prevent, respond to and mitigate Acts of Terrorism at Yankee Stadium during Game Day, Non-Game Day (In-Season), Non-Season and Special Events."

One of these things is not like the other, complains Bowman.

“When you look at the law -- it's for makers and suppliers of technology," he said. "That was their intent, not to protect ballparks and give them a get-out-of-jail-free card, as long as they didn't lie ... during the approval process.”

The Yankees did not respond to a request for comment.

McWhorter says that sports venues are good candidates for Safety Act protection because they host major events that attract attention, and need incentives to go "above and beyond" standard levels of security.

"Yankee Stadium is not unlike the Cincinnati airport, the Stock Exchange, the NFL, or Super Bowl venues, all of which have received Safety Act protection," he said. "The regulations for the Safety Act are very clear that the (Department of Homeland Security) secretary has great flexibility in approving applications. Nevertheless, one criterion is, to paraphrase, 'To get Safety Act protection, you must demonstrate the need for Safety Act protection.'… The Safety Act incentivizes activities like vulnerability assessments and security upgrades, whereas without it some people might simply ignore threats in order to avoid any culpability."

Bowman said he didn't have a fundamental disagreement with the notion of encouraging invention of terrorism-fighting technologies, but feared that the Yankees designation proves the Safety Act is now casting a far wider net than originally intended. That's not a mistake, he thinks: Tort reformers try to gain more ground each time Congress takes up an industry issues or security issues, he said.

"We see this over and over in what we do. The first thing industry asks for are liability protections," he said, citing this year's cybersecurity bill as an example. "But if they are not accountable, they aren't responsible and no one is ultimately safe."

Karl, the Safety Act consultant, said he believes the Safety Act does make America safer, as all manner of security improvements are a standard part of the application process. He expects many more sports teams to apply -- and to receive -- Safety Act designation in the coming months and years, and he plans to pitch sports teams and facilities with his consulting services.

"The law is definitely working the way it's intended to," he said. "The Safety Act protects technologies that deter or respond to or mitigate a terrorist attack. … That makes us all safer."

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In the ugly battle of Web users vs. insurance companies, a lot of blood was spilled this week.

We've known for a while that hell hath no fury like an Internet user scorned. But at the intersection of social media, consumer frustration, anxious lawyers and heavy-handed regulations you'll find a particularly tricky corner of the Web. Insurance firms, which have always been a magnet for complaints anyway, lie at precisely this crossroads.  

Increased competition has led insurers to employ high-profile marketing gimmicks, like geckos or touchdown dances, in an effort to become household names with friendly reputations. That means it's become necessary for them to establish a social media presence. Progressive's "Flo" character, for instance, has her own Facebook page, with hundreds of thousands of fans. But inviting social dialogue sometimes means inviting trouble, as Flo and her handlers found out the hard way this week.

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Progressive encountered a Twitter revolt after the family of a woman killed in a car crash wrote a blog post criticizing the way the firm fought to avoid paying a claim. The post went viral, and the insurance giant then compounded its problems by spitting out automated tweets in response.

Experts who talked about the incident this week said Progressive fell into a trap that often catches large companies as they stumble around the social media world.

"The original response sounded genuine," said Jason Falls, a digital marketing consultant who helped health care firm Humana set up its social media program. "But the fact that they auto-responded the same statement to multiple people showed it was just a copy-and-paste job. More often than not, when that happens, it's not the technology that's to blame. You can blame it on the legal and compliance teams saying, 'You can say this and only this.' It makes you look cold and insensitive."

Both sides have willingly joined the insured-vs-insurers Internet fight. Insurance firms increasingly use the Web as a weapon against fraud, while consumers band together to demand better service, or to appeal denials of coverage. Both can claim victories. There are plenty of stories of insurance investigators who catch disability recipients bragging about completing triathlons on their Facebook pages or tweeting about a great trip to Paris while claiming depression. Meanwhile, earlier this month, a social media firestorm caused Aetna to back down and agree to cover colon cancer treatment costs for an Arizona patient who'd already exceeded his lifetime cap. A flurry of angry tweets really can make a big company reverse course.

'Shame on you'
Fall said he's used to seeing nasty comments pile up on insurance company blogs, Facebook pages and in Twitter feeds.

"It does make me cringe, but I also think it comes with the territory," he said.

It doesn't take long to find cringe-worthy comments on insurance company social media sites. Even days after the initial Progressive firestorm, comments left on Progressive's otherwise happy "Flo the Progressive Girl" Facebook page were dominated by vitriol: "Shame on you," says one. "Has Flo ever wondered why Progressive tries to get killers off the hook?" says another. Many writers called on the actress who plays Flo to quit.

Flo's hardly alone, however. When American Medical News did a survey of health insurance Twitter accounts last year, it found a never-ending stream of complaints:

*"Dear Cigna: How about, for the new year, you do something radical - like processing claims without 500 phone calls from me?"

* "Dear Humana, you've ruined my day. Worse, my wife's day. Way to CYA. I'm paying you to cover mine."

*"@Anthemhealth, so far u didn't send me my ID cards … kept me on hold for 25 mins and ur site isn't lettng me register. Nice service."

Insurance, necessarily, involves rejection. When you are in the business of frequently disappointing people, and making sure your rejections are lawsuit-proof, it's nearly impossible to run a free-spirited social media shop. Rachel Poor, who runs the social media marketing firm Thread Communications, said all heavily regulated industries face the Progressive dilemma.

"I think social media is still a sort of an enigma (to them). They all want to be there, they are told they should be there, but these companies are not used to people talking back to them in such a public forum," she said. "Ultimately, I think it will require insurance agencies to change the way they do business.”

Greg Matthews, a director at social media consulting agency WCG in Austin, said insurance companies often have to go into a Twitter or Facebook fight with one hand tied behind their backs.

"Particularly in health care or financial services, there are privacy-related issues that you just can't discuss," he said. For example, if a patient complains about an uncovered medical procedure, the insurance company can't publicly talk about the patient. "People want you to be transparent and authentic all the time, but you just can't. ... It can be terribly frustrating.”

Falls said companies he works with expect the occasional public flogging after turning on a Twitter account, and they manage to survive by planning ahead.

"The thing I've tried to do with any client opening up its customer service channels -- you have to have a crisis communications plan mixed with a customer service plan," he said.  "You have to anticipate what will happen. ... Companies that dive in without a plan of attack for those situations are finding it difficult."

No stiff upper lip?
Automatic and formulaic responses have gotten many companies through old-fashioned media crises, Falls said. For example, journalists are often tolerant of canned answers, he noted -- but they typically don't fly on social media. If a Twitter response doesn't sound like it's written by a real person in response to a real person, the company is likely going to take a hit to its reputation. On the other hand, when million-dollar settlements might be at stake, no insurance company lawyer is going to be comfortable with a social media employee free-lancing responses. So Falls suggests a middle path.

"You have to have a lawyer on staff who can be on call and help your social media team craft communications in crisis situations," he said. "When you have a big publicity problem, you have your legal team working hand-in-hand with PR. Why wouldn't you do the same thing in the social media world?"

In general, he recommends that firms post a detailed, formal response on a website, and instruct their social media writers to tweet or post links to it, while adding personal notes separately. 

There are challenges, however: Many lawyers and companies don't have the stiff upper lip needed to ride out a social media crisis.

"Any industry that's heavily regulated will always have a layer of legal and compliance teams that have to be trained, and have to buy in," he said. "It can be done with the right legal team. But if you have a team that constantly says ‘no,’ it'll never work."

Matthews said effective social media must also be fast, and that's often unfamiliar territory for insurance firms.

"It means really changing processes that companies use. Rather than convening the executive committee for two days to make a decision about things, boil it down to the two or three people who can actually make a decision in hours and not days," he said.

It also means knowing who the influencers are in certain topics ahead of time, and planning to engage those people immediately when a crisis hits.

"It's not that hard to know these days who are the folks likely to be influential in this conversation," Matthews said. "You know what the top 10 issues that you might face are, and you know who is likely to be the most influential when those stories break, the people who might take your side or be opposed. ... Ask yourself how do you engage them. What is the content you can bring to bear that articulates your position rather than letting the public run wild. You can never control the conversation, but you can make sure your side is heard."

Finally, and most important, companies have to actually deliver on their promises, perhaps in a way they never have before, Matthews said. If a Twitter user complains and is asked to call customer service by a social media worker, that customer service experience had better be positive, Matthews warns. Otherwise, the angry consumer will have heavy new ammunition for waging a social media war.

"It really helps you find your skeletons in the closet," he said. "You have to have a mindset that you are grateful your customers are telling you what you are doing wrong, and you have the opportunity a chance to fix it. I know a lot of companies, maybe most companies, don’t feel that way, but that’s the only way to be successful in social media.”

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Giselle and Zenayda Sedano of Cranford, N.J., never had a chance of keeping the rampaging waters of the Rahway River out of their home when Hurricane Irene roared through northern New Jersey in August. Now they are wondering if they ever had a chance to get any of the $21 million that the Federal Emergency Management Agency sent to help New Jersey’s flood victims.

We first met the Sedano sisters a day after the hurricane hit on Aug. 28, causing the Rahway River to breach containment and wreak havoc in their suburb of Cranford, where about one in five homes were damaged. They were picking through all of their worldly belongings and looking for something, anything, that wasn’t completely waterlogged. 

Now, more than eight months later, they are wondering why they didn’t receive any federal disaster aid to flood-proof their home, which is only about 100 feet from the river, while some of their neighbors who live farther from the water are getting nearly $200,000. Other Cranford residents are asking similar questions.

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“There are homes in plain sight of mine that were selected which I will have to witness get elevated. But I'm right next to the river. I just don't understand," Giselle Sedano said. "It’s so hard waking up every day not knowing what’s going on."

The controversy highlights the challenges that FEMA and local officials face as they try to plan ahead and minimize future flood disasters.

Msnbc.com profiled the Sedano sisters in August when writing about the towns hit hardest by Irene. Giselle is a hedge-fund analyst and Cornell graduate; Zenayda works in the pharmaceutical business and is a Rutgers graduate. The two successful 20-somethings pooled their resources to buy a home in 2009, soon after they graduated from college, so they could move with their parents to Cranford.

Their parents came from Peru in the 1980s with nothing other than the clothes in their suitcase. Irene left the entire family in a similar fate; mom, dad, and the two sisters had little left outside the clothes they took when fleeing to a nearby hotel right before the Irene hit.

Nearly six months to the day after the storm, New Jersey Gov. Chris Christie announced that FEMA had awarded the state $21.6 million through its Hazard Mitigation Grant program. The money was promised to seven municipalities hit hard by the storm; Cranford received $3.1 million for "the elevation of select dwellings."  At around the same time, some Cranford residents began receiving phone calls saying they'd been selected for elevation grants. Others, including the Sedanos, heard nothing.

Like dozens of other Cranford residents, the Sedanos had responded to a notice last fall from the township indicating they'd like to participate in the elevation grant program. It's not cheap; even with the grant money, residents have to pay 25 percent of the cost.

Neighbor Kristen Wolansky also requested elevation aid, but she said the township never even acknowledged receipt of the request.

"There was no confirmation that your name was received. The information was just submitted into a void," she said.

The list of lucky homeowners isn't public -- "winners" were notified only by phone call, said Wolansky. But she and another frustrated Cranford resident, Steve Gorski, have pieced together a map based on conversations with neighbors. While unofficial, it shows several homes around the Sedanos' house receiving aid.

It makes sense for FEMA to flood-proof homes that are subject to repeated disasters. Like most flood victims, the Sedanos paid to participate in the National Flood Insurance program – in their case, the premiums were $2,015 annually. Elevating homes -- or purchasing them outright and making them into parkland -- is cheaper in the long run than continuing to pay pricey settlements every 10 or 20 years.

But there's not nearly enough money to buy out or elevate every home in danger -- only about 1 in 10 homes statewide in risky areas will receive funds from the $21 million FEMA grant, New Jersey state officials say. That means there's always a lot of disappointment when flood relief grants are doled out.

But the process for picking winners and losers raises questions. Ultimately, local officials decide which residents get the aid. There are complex considerations, such as preserving the character of neighborhoods, which are best left to local officials. But that also leaves them open to criticism and accusations of political patronage.

Compounding the problem are privacy requirements surrounding the process. Because participation is optional, and residents can decline the aid, the list of selected homeowners remains a secret until contracts are signed to begin work. That also means families like the Sedanos have no real avenue for appeal.

FEMA’s Hazard Mitigation Program has benefitted communities around the country. The state of Vermont received post-Irene buyout and elevation grants of $19.8 million, for example.  But the program also has a spotty history. More than $1 billion was set aside for land acquisitions and home elevations after Hurricane Katrina in Louisiana, but arguments over how to implement the program delayed the awarding of any grants for two years – and by 2008 – three years after the monster storm -- only 14 grants were paid out. Claims of contractor fraud also complicated that awards process.

By that measure, the post-Irene grant process is moving swiftly in New Jersey. Still, the Cranford secret has been kept for a while -- the homes picked by Cranford officials had to be included in the town's initial application for aid, which was filed sometime in the fall, according to state officials.

FEMA directed questions about the New Jersey grant process to state officials; the governor's office directed questions to the state’s Office of Emergency Management.

Mary Goepfert, spokeswoman for that agency, explained the process to msnbc.com.

"The homeowners have to stay private because if they don't participate, and their name is on a list … their home would be severely devalued," she said.

Goepfert said local officials must show that the choice of winners is "financially advantageous" -- that is, a buyout or elevation project must be cheaper than expected future insurance payouts. But otherwise, home selection is entirely up to municipalities, she said.

"For instance, it might make more sense to buy out three, four, five or six houses in the same neighborhood than it would to buy a house here and a house there,” she said.

But what if a resident who wasn't selected feels the process was unfair?

"That's a question for the municipality," she said.

Cranford Mayor David Robinson said he understands why some residents might be frustrated, but said the municipality initially tried to get enough money to elevate about 50 homes and was told by federal and state authorities to tone down its application.  Right now, 18 homes are slated to get elevation aid, and another five are selected as alternates in case others back out.

"We're going to go neighborhood by neighborhood and try to get all of them elevated," he said. "It's just a matter of which homes get first priority. That's what we really focused on." The town plans to apply for additional elevation grants in the future, he said.

This time, municipal officials looked at prior loss history, past flood claims and other data when picking the homes, he said, admitting that some of that data is incomplete.

"We've also found instances where people may have had private flood insurance, and we discover that's a blind spot not included in (our) loss data," he said. "We're working hard to fix that. ... (This time) we focused on homes closest to the river and going neighborhood by neighborhood with the loss data that we had." 

While the 18 "winning" homeowners and 5 alternates have been informed, he said there is no process to tell disappointed homeowners that they weren't picked, or why.

And how should a homeowner like Sedano feel if they feel left out, while neighbors benefit?

"If it's a next-door neighbor, maybe the explanation was that their loss data didn't fit into the cost-benefit analysis that was being worked on at that point," he said. 

The "losers" must simply trust that the selection was fair. The data -- and the reason for the selections -- remains private.

There is one public curiosity about Cranford's aid grant. The other six cities that were promised post-Irene grants all elected property buyouts; Cranford was the only municipality to pick home elevation.  That can be far less disruptive for homeowners, of course, because they don’t have to move. Elevation benefits the town's tax coffers, too, Goepfert said.

"With a buyout, those properties are written off from the tax ratable base," she said.  "But why Cranford chose elevation, you'd have to ask them."

Mayor Robinson said no one in the town expressed interest in a buyout.

All this mystery might be over soon. Goepfert said post-Irene aid was fast-tracked, and she hoped contracts for construction and buyouts would be signed within a month. Then, the list of winners and losers will be made public, she said.

For now, the Sedanos are slowing putting their lives, and their home, back in order. Most of the basic reconstruction of their home has been completed, and the family has moved back in, albeit with sparse furniture. They celebrated Easter Sunday at home this past weekend, their first meal in their rebuilt dining room since the flood.

"There were a few tears during dinner," Giselle said.

But the view of the river out their window, which once brought a sense of tranquility, now only brings trepidation. And until the list of to-be-elevated homes is published, the Sedanos are forced to wait and wonder why they weren't chosen.

"We find it totally unfair. Our home is directly in front of the river," Zedayna said.