II.

LIABILITY TARGETS

B. Security Companies

Huntleigh, USA Corp. (“Huntleigh”) is a St. Louis, Missouri-based

company, and a subsidiary of the Dutch Israeli Company (“ICTS”).
Huntleigh is ICTS’s largest source of revenue.1 Huntleigh performs security
screening in forty airports across the United States. One of these airports
is Logan International Airport in Boston, Massachusetts (“Logan”) where it
provides security for United Airlines (“United”).

Globe Aviation Services Corporation (“Globe”) is a subsidiary of Securitas

AB (“Securitas”), a Swedish corporation. Globe is headquartered in
Chicago. Securitas is the largest security organization in the world with
annual revenues over $6.2 billion and 220,000 employees in 33 countries.
Globe operates the security checkpoints for American Airlines (“American”)
at Logan.

1. The Role Played by Security Contractors at Logan

International Airport

Federal Aviation Administration (“FAA”) regulations place responsibility for

terminal security on individual airline operators, who are permitted to
contract out the work.2 Historically, the FAA has provided the only
oversight of airline security plans and the private security contractors who
implement them.3

Huntleigh provides security and other services within airport terminals.

Pursuant to their individual service contracts with airlines, they employ
personnel for pre-board security screening, baggage-claim attendants,
skycaps, and wheelchair attendants.4 Globe provides airlines, airports and
cargo carriers with both staffing and management of aviation, security,
terminal and ground support functions. Currently, Globe serves
approximately 62 locations in 30 states. Globe provides more than 25
different service functions including pre-departure security screening,
ground handling, aircraft cleaning, sky caps, passenger assistance, and
cargo services.

The security services provided by Globe, Huntleigh, and other security

contractors are a part of the airlines site security plans which FAA
1
www.union-network.org (June 27, 2001).
2
14 C.F.R. §108 (2001); Matt Carroll, Airlines Foiled Police Logan Probe, The Boston Globe (October 17,
2001).
3
Id.
4
Loren Terrazzano, Logan Lags in Security Studies, Newsday.com (September 13, 2001).

OP-261264-1
 regulations require each airline operator to formulate and implement. 5
Regulations require that these plans be written, but they are frequently
based on a FAA-promulgated form.6

2. Huntleigh’s Labor Problems

For more than a year, Huntleigh has been under severe scrutiny for its
labor-management practices. Huntleigh workers have complained openly
about poor pay and insufficient training.7 Huntleigh employees at some
airports are unionized, while those at other airports are not.

Prior to September 11, 2001 a number of labor clashes had occurred

around the country in conjunction with organizing efforts. Specifically, in
July of 2001, the Service Employees International Union (“SEIU”)
spearheaded unionization campaigns for Huntleigh employees at the
Oakland International Airport and the Seattle/Tacoma International
Airport.8 Unions claim that in response to employees’ organization efforts
in three different U.S. cities, Huntleigh management responded by
initiating a legal campaign of intimidation and retaliation against union
supporters.9

Huntleigh employees, including those detailed to screen passenger

luggage and the personnel that monitors security checkpoints, picketed at
the Oakland International Airport to protest Huntleigh’s characteristically
low wages, Huntleigh’s lack of adequate staffing, and the poor job training
that characterized their Oakland operation.10 Union officials and security
experts have speculated that poor working conditions and low pay cause
the abnormally high turnover rates and that these rates inevitably
compromise the safety of travelers who use airports secured by such
employees.11

5
See 14 C.F.R. §108 (2001).
6
See 14 C.F.R. §108 (2001); Air Carrier Security, A.C. 108-1; FAA Advisory Circular (October 16, 1981).
7
One pre-board luggage screener from Oakland International Airport recently appeared on CBS Television’s 60
Minutes. He noted his $7.00 per hour rate of pay and stated: “When we go through training every six months, we’re
shown the same video people see when they get hired...[W]ith all the changes happening in this area, we need up-to-
date information.” Id.
8
David Goll, Airlines Contractor Hit by Union Pickets, East Bay Business Times (July 27, 2001).
9
David Goll, Airport Security Debate Stirs Union Drive East Bay Business Times (October 5, 2001).
10
Oakland Airport Contract Workers to Protest Low Wages, San Francisco Business Times (July 20, 2001).
11
“People doing important jobs like pre-board baggage screening start out making $6.25 an hour, regardless of
their experience. After seven years on the job, employees are only making $7.00 an hour. They have no health or
sick leave benefits. The result is a very high rate of turnover among employees doing jobs that are crucial to the
safety of passengers.” (Statements by Amy Guerriero, an international organizer for SEIU. David Goll, Airlines
Contractor Hit by Union Pickets, East Bay Business Times (July 27, 2001).

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2
 Huntleigh’s labor issues and the systemic problems which caused worker
unrest may have compromised security at Logan on the 11 th of
September. Globe’s security problems have not received the same level
of scrutiny. Globe appears to have slightly higher money and security
standards.12 The employees of neither Huntleigh nor Globe are presently
associated with Logan.

3. Globe Resistance to Security Probes by Massachusetts

State Authorities

Media reports indicate that Logan had atypically egregious security

lapses.13 However executives from the airlines who are responsible for
terminal security under current FAA regulations, executives from Globe,
and possibly other security contractors, raised “vehement objections” to a
Massachusetts Port Authority’s (“Massport”) proposal to probe Logan
International’s security forces using Massachusetts State Police.

In July 2001 Joseph Lawless, the Massport security chief at Logan, was
preparing to implement new security measures. These measures would
have intruded on historic FAA and airline territory by having State Police
test for security weaknesses. Such scrutiny had historically been the
exclusive responsibility of the FAA. The minutes of a July 11 th Massport
security meeting indicate that State Police were poised to begin their
security monitoring the following week. According to the minutes, Mr.
Lawless stated that the tests would consist of “…trying to sneak weapons
past the checkpoints and also observing response time to alarms.” 14 The
State Police plan had been planned for several months and was to employ
the services of four or five plain clothes officers and staff members.

The probes were tentatively scheduled to start the week of July 16, but
only after a review by the Logan Airline Managers Council, a group
representing all the carriers flying into Logan. At that meeting, however,
airline managers objected “loudly to any testing by authorities other than
the FAA.”15 The airline officials were concerned about (1) who would have
access to the results of the probe, and (2) whether any results would be
shared with the FAA.16

Executives from both United and American, were involved in the meeting.
While the role played by Huntleigh and other private security contractors
12
Globe’s website posts security positions with full benefits packages and higher pay.
13
Matt Carroll, Airlines Foiled Police Logan Probe, THE BOSTON GLOBE (October 17, 2001)
14
Id.
15
Id.
16
Id.

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3
 is uncertain, Globe appears to have played an important, and vocal role in
defeating the Massport proposal. One Globe official, Carter Bibbey was
later stated that his company was opposed to the probes. Bibbey
complained that his company did not want its checkpoint screeners to be
“forced to detect test weapons that were different than the standard test
items that FAA agents periodically use to see how vigilant the screeners
are.” Bibbey stated “‘[w]e didn’t want anyone testing us without knowing
what to look for exactly. We don’t need people improvising test pieces to
purposely make people fail.’” Bibbey reportedly said Globe didn’t “mind”
Massport tests as long as it used FAA-approved objects its screeners were
accustomed to spotting.

In any event the Massport probes did not take place until immediately
following the September 11th attacks.17 This reflects badly on the security
companies and, further, on the airlines themselves.18

4. Liability Generally

Huntleigh and Globe owed contractual duties to the airlines, their

passengers, their flight crews, and possibly to Massport. On the other
hand, it is difficult to conceive how either company could be in any sort of
contractual privity with the WTC property owners. While the insureds
may have some rights as third party beneficiaries, the extent of these
rights cannot be determined without examining the actual contract
between each airline and its respective contractor.

The companies’ responsibilities pertained to securing the terminal and

surrounding grounds. Strict liability and other product-related theories of
tort liability will not be available unless the contractors provided some
product that they designed or built. Consequently, the remainder of this
memo focuses on the Huntleigh and Globe’s potential liability for simple
negligence.

In order to establish a prima facie case of negligence, the plaintiff is

required to establish the following elements:

a. That a duty of care was owed to the plaintiffs;

b. that duty was breached as the result of the deviation from
the applicable standard of care; and
c. that the breach of that duty was the cause, in fact and
proximate cause, of the plaintiff’s injuries.19

17
Id.
18
See, supra, analysis of airline liability.

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4
 Available information presently indicates that it may be easier to show
that Logan security contractors breached a duty it owed not only United
and its passengers, but the entire American public. However it may be
much more difficult to demonstrate a causal link between their lax security
and the ultimate property damage in Manhattan.20 Accordingly, this
memorandum first discusses Huntleigh and Globe’s duties to all persons
and property owners on the ground. Then, this memorandum discusses
the difficulty of that the tortious actions were the factual and legal cause
of the catastrophic damages in New York.

5. The Security Contractors’ Duty To Exercise Reasonable

Care

a. Statutory Duties to Safeguard Persons on the Ground

The legal doctrine of negligence per se imposes duty as a matter of law

where the legislature intentionally imposes enacts statutes and authorizing
regulation to protect a particular class of persons from a particular class of
harm. In effect, this doctrine interprets legislative rules, either statutes or
regulations, to impose a standard of care. An act which violates the
legislative rule also violates the standard of care, and hence proof of a
violation is prima facie proof that the duty has been breached.

As noted above, there is no contractual privity linking the contractors and

the insureds. Nevertheless, by agreeing to take on the airlines security
responsibilities under federal law, Huntleigh and Globe may have
contractually assumed duties assigned to the airlines by federal law.

Airlines were intermittently targeted by international terrorists for nearly

three decades before the September 11th attacks. The entire body of
federal law in the field of aviation security was intended to protect the
American public from harm by criminal acts perpetrated aboard
commercial air liners carrying tons and carrying thousands of gallons of
fuel.

These legislative rules were designed to protect not only the passengers
and crews of aircraft, but also earthbound persons and property.
Property damage to buildings on the ground was a foreseeable
19
See infra. A more comprehensive discussion of New York and Massachusetts tort law is contained in the
discussion of Boeing’s liability.
20
This difficulty will be linked to the unprecedented (and hence less foreseeable) magnitude of the terrorist
attacks, and to the fact that experts appear to agree that the strictest, most organized security arrangements on
September 11 might not have thwarted such a well planned, organized attack. Others have called American airports
and air traffic “irresistible” targets. Arguably “proper” security measures might have deterred the attacks, prompting
the Al Cadea operatives to target some other aspect of American society, perhaps with less catastrophic property
damage.

OP-261264-1
5
 consequence of a plane crash, and plane crashes are an obvious danger
when security breaches compromise the airline safety. Neither the
specific “target,” the specific criminal act, nor the magnitude of the harm
need be foreseeable.

Non-compliance with pertinent statutes or Federal Airline Regulations

(“FARs”)21 would establish the breach of this statutory duty. Legislative
rules broadly require airlines to implement security plans to protect
against in flight security breaches and catastrophic crashes. 22 Specific
statutory duties include:

(1)
Adequately training new security employees;
(2)
Providing adequate “retraining” to existing security
personnel;
(3) Maintaining adequate staffing levels;
(4) Requiring personnel to have adequate language skills;
(5) Requiring adequate education and experience levels
for employees.23
We will argue that any breach of these duties, or those imposed by
specific FAR sections, evince a breach of a duty owed to the insureds.
This could potentially simplify the task of proving duty. Any violation of
the federal law is, conceivably, negligent per se.24

6. A Contractor’s Duty to Exercise Reasonable Care in the

Performance of It’s Statutory, Regulatory, and Contractual
Obligations.

Airline security contracts are awarded through a competitive bidding

process. Suit would entail significant discovery into this process, and into
each contractor’s routine operations to assess if, when and how often
security is sacrificed for pecuniary gain. If Huntleigh and Globe have
complied with federal law, or if a court decides federal law does not
impose a standard of conduct, the actions of the airlines and their
contractors will be evaluated under a reasonable person standard.

21
The term “FAR” is usually used to refer to a specific rule contained a section or subsection in Title 14 of the
Code of Federal Regulations. The term appears to be used throughout the airline and airliner manufacturing
industries, among pilots, and internally by the FAA. Although CFR sections are formally cited herein, some research
materials and experts may refer to a section as “FAR 108” or a subsection as “FAR 107.722.”
22
14 C.F.R. §108 (2001).
23
49 U.S.C. § 44935(a) (2001).
24
C.f., Rimer v. Rockwell International Corp., 641 F.2d 450 (6th Cir. 1981) (applying Ohio caselaw which
precluded negligence per se because the applicable FAA regulations provided only general standards of conduct, not
specific duties).

OP-261264-1
6
 Huntleigh and Globe held themselves out as having a higher level of
expertise in the area of airport security. However, neither company
provided any professional services for which there is a heightened
community standard of care (as with an engineer or a doctor). Hence,
both companies had a duty to perform contractual obligations as would a
reasonable person in similar circumstances. The corporations were
required to employ the specialized knowledge and expertise available to
them and to exercise reasonable judgment accordingly when working to
comply with their contracts or with federal law.

Even if violation of applicable FAA regulations does not constitute

negligence per se, evidence of such a violation would still be admissible to
prove breach of duty.25 Showing evidence of a violation would suffice to
make a submissable case on the issues of duty and breach. 26

a. Contractors Failed to Exercise Reasonable Care in Providing

Expert Services Such as Evaluating Security Risks, Designing
Physical Security Features Within the Terminals, and
Formulating Adequate Policies & Procedures For Security
Personnel

At this time it is not known whether Huntleigh or Globe undertook

consulting work such as risk assessment, building/floorplan design,
drafting employee manuals and training materials and the like. If so, the
reasonable person standard will require that the contractors (1) only
undertook tasks for which they had or could obtain qualified personnel;
and (2) performed the expert service as would a reasonable person with
similar expertise at their disposal.

Moreover, Huntleigh and Globe were probably privy to classified security

information detailing government evaluations of the overall security
threat, as related to airport security. Discovery of these materials will
provide more circumstances that a reasonable person should have taken
into account.

b. Employees Failed To Exercise Reasonable Care in Screening

Passengers.
Even if a contractor’s sole contractual obligation was to provide personnel
to staff security checkpoints designed and built by the airlines, using
airline formulated procedures, some baseline level of competency in
security related matters is to be expected.
25
Rauch v. United Instruments, Inc., 548 F.2d 425 (3d Cir. 1976).
26
Shellenberger v. Tanner, 277 S.E.2d 266 (1976), appeal after remand, Tanner v. Rebel Aviation, Inc., 245
S.E.2d 463 (Ga. App. 1978) (a complaint alleging a regulatory violation stated a cause of action under state
negligence law).

OP-261264-1
7
 We hope to argue that Huntleigh employees negligently performed their
duties by failing to exercise reasonable care to screen passengers for
weapons on the morning of September 11. This may be difficult to prove.
Although more information may soon emerge, it is presently unclear
precisely what weapons were employed and how they were brought
aboard the planes. Some terrorists boarded airplanes in Portland Maine
and may have smuggled weapons through checkpoints there. Weapons
could have been pre-planted or brought around checkpoints by mules. In
such an event, the most diligent screening of the terrorists themselves
may not have detected any weapons.

Also, since regulations in effect on September 11th did not prohibit the
weapons allegedly used on September 11, 2001, a reasonable person
might have permitted a terrorist or terrorists to carry the items through a
checkpoint even if they had been discovered.27

c. Huntleigh’s Arguably Breached its Duty to Provide Adequate

Security by Inadequately Staffing Security Checkpoints and
Screening Operations, and Supervisory Positions.

Various news agencies have published reports which indicate that

Huntleigh’s staffing and labor policies may have compromised terminal
security in the United terminal at Logan on September 11, 2001. One
retired FAA security agent, Brian Sullivan, has been stated that “the low
paid employees hired to work at security checkpoints” were the “weak
link” in the nations aviation security system.28 Specific staffing problems
that might have caused of the security breach on Flight 175 include:

(1)
Sub-Par Labor Practices Caused High Employee
Turnover, and Placed Inexperienced and Incompetent
Workers in Key Positions, Undermining Security.
Newsday.com has noted that Boston’s Logan International Airport has
been generally plagued with an extremely high turnover rate for
passenger- and baggage-screeners in recent years.29 The Los Angeles
Times has reported that a 1999 Government Accounting Office (“GAO”)
report indicated that Logan’s annual turnover rate for security personnel
was 207%.30 Newsday pointed to Huntleigh’s particularly acute labor
problems – not only at Logan, but nationally, and noted that Huntleigh
was United’s security contractor at Logan, where United Flight 175

27
See, supra, foreseeability analysis.
28
Peter J. Howe, Crashes in NYC had grim origins at Logan, THE BOSTON GLOBE (September 12, 2001).
29
Loren Terrazzano, Logan Lags in Security Studies, NEWSDAY (September 13, 2001).
30
Kim Morphy, et al., Probes Found Breaches in Security, THE LOS ANGELES TIMES (September 13, 2001)

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8
 originated.31 One expert has stated that among the security employees
“’[m]orale is horrendous,’” as evidenced by employ turnover and
dissatisfaction.32 Advertisements for screeners in the federal study on the
subject of pay give the typical rate at $5.15 to $6.50 per hours.33
Conditions may be marginally better at Globe. Following the September
11 events, Globe’s website has advertised immediate openings for
checkpoint security screeners and with a full benefits package available,
including medical, dental, vision, short-term disability, 401k and paid
vacation. Requirements include a preemployment drug screening, a FBI
fingerprint check, a 10 year background check, 18 years of age, and a
high school diploma, with some college preferred.

We will argue that Huntleigh, and perhaps Globe, breached its duty by
engaging in hiring practices that left security to unqualified individuals,
working at wages unacceptable to qualified workers. These labor
practices breached a duty of care by trading acceptable quality for fiscal
savings.

(2) Inadequate Qualification and Training Standards

Caused Security Checkpoints to be Inadequately
Staffed, Undermining Security.

As recently as October 7th, The Colorado Springs Gazette described the

extremely low employment standards employed by all airline security
contractors.34 An FAA spokesman, Jerry Snider, has stated that currently
airport baggage screeners must merely possess a high school diploma or
equivalency certificate, be able to speak English, and be U.S. citizens or
possess a Naturalization and Immigration work visa. Screeners undergo
twelve hours of classroom training and forty hours of on-the-job training
before becoming certified. Curiously, The Colorado Springs Gazette
recently reported that Jessica Neal, an assistant to Huntleigh’s Chief
Executive Officer, stated that the FAA had imposed a gag order on
information about training, pay and qualifications of screeners. 35

We will argue that in addition engaging in labor practices that indirectly

prevented the maintenance of a quality work force, Huntleigh and Globe
(1) failed to adequately screen workers; and (2) failed to adequate train
those they hired. As noted in a recent Government Accounting Office
31
Terrazzano, NEWSDAY.
32
Howe, THE BOSTON GLOBE
33
Pam Zubeck, Councilman Calls Security Breaches ‘an outrage’, THE COLORADO SPRINGS GAZETTE (October
9, 2001) (MSNBC.com/home/).
34
Zubeck, THE COLORADO SPRINGS GAZETTE
35
Id.

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9
 (“GAO”) study evaluating European and Canadian security practices, and
FAA test indicated that foreign screeners “detected over twice as many
test objects” as did their U.S. counterparts.36

(3) Checkpoints Were Numerically Understaffed.

Discovery will reveal actual staffing levels at security checkpoints.

Particular note should be taken if security checkpoints are staffed at
skeleton levels or absentee workers are not replaced. Further information
is also needed to determine (1) how long X-ray operators were at their
post between breaks or post rotations, and (2) whether regulations or
operator manuals limit the time an employee can effectively operate the
devices before suffering from lapses in concentration, blurry vision, or
headaches. We will argue that the policies of Huntleigh and Globe
resulted in the chronic understaffing at the relevant Logan checkpoints,
undermining the effectiveness of the overall security scheme.

(4) Security Equipment May Have Been Inadequate.

The best security troops would be hamstrung by inferior equipment.

Expert consultation and considerable investigation will be required to
further evaluate this argument. However, we might argue Huntleigh,
Globe, or the airlines (depending on contractual allocations of
responsibility) failed to acquire or properly maintain adequate X-ray
technology or metal detecting equipment.

d. Contractors Failed to Adequately Account for Renovations to

Areas Under Their Responsibility.

Newsday.com has reported that Logan may have been undergoing

renovations that loosened the airport’s security perimeter.37 The extent
and location of renovations is not available at this time.

Renovations would not have excused Huntleigh or Globe from their duty
to provide security services in a non-negligent manner. It seems
reasonable to expect the ordinary prudent person to take such
circumstances into account. If Globe or Huntleigh, on their own authority
or at the direction of the airlines, disregarded this standard of
reasonableness, then they arguably breached their duty to perform in a
non-negligent manner. The contractors may be liable even if security
compromises were made in the interest of expediency or to accommodate
customers who had been “inconvenienced” by remodeling work.
36
Press Release, Airport Security Workers Issue Checklist for Protecting Public Safety, www.flysafernow.com
(September 15, 2001).
37
See Terrazzano article supra.

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10
 e. Failure to Exercise Reasonable Care to Maintain Adequate
Security Levels by Probing and Re-Analyzing Procedures and
Staffing Arrangements Once Established and Implemented

As discussed earlier in this memorandum, United, American, and Globe

appear to have taken affirmative steps to undermine Massport efforts to
evaluate and remedy security lapses to improve the overall security at
Logan. Huntleigh’s role in these incidents is uncertain. Compiling further
evidence of these occurrences would be helpful for two reasons. First, the
security contractors arguably had an affirmative duty to engage in
objective, self critical analysis to ensure that their security measures were
working properly. This duty appears to have been breached. Second, in
the absence of such a duty, these actions indicate knowledge of the
security system’s vulnerability and perhaps of other failures to fulfill
statutory obligations. This evidence goes to the breach of other duties,
aggravating already unreasonable conduct.

7. Shoddy Industry Standards

It is no defense that an individual contractor’s conduct comported to the

applicable standard in the airline security industry. The general practice is
not generally the reasonable practice, and more may be required than is
generally done.38

8. The Problem of Causation

Even assuming we successfully establish Huntleigh and Globe owed duties

to the WTC insureds, these firms will not be liable unless the breach of
this duty can be factually and legally linked to the ultimate harm suffered
in New York.

a. Factual Causation

There is no question that a failure of the security apparatus was causally

linked to ultimate destruction of the WTC. The question, however, is
whether the breach of a duty was the cause of the security system’s
failure. If the terrorists would have successfully evaded the most vigilant
security measures, properly implemented as required by legislative rules
and by the reasonable person standard, then the most egregious
disregard for duty cannot trigger tort liability.

38
See generally, The T.J. Hooper, 60. F.2d 737 (2d Cir.), cert denied, 287 U.S. 662 (1932). As Justice Holmes
stated in the case of Texas & Pacific Ry. v. Behymer: “[w]hat usually is done may be evidence of what ought to be
done, but what ought to be done is fixed by a standard of reasonable prudence, whether it is usually complied with
or not.” Texas & Pacific Ry. v. Behymer, 189 U.S. 468, 470 (1903).

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11
 Under New York and Massachusetts law, strict “but – for” causation is not
required. We will argue that security companies negligence was a
“substantial factor” which contributed to the systemic breakdown of
airport and cockpit security. This overall breakdown of the security
system is arguably a “but-for” cause of the damages suffered on the
ground.

b. Legal or “Proximate” Causation

Proximate cause is a legal concept that serves to limit, for legal and
policy reasons, the responsibility of an actor for the consequences of his
conduct.39 Through the “legal cause” element, the law uses the concept
of “foreseeability” to limit liability to consequences that the actor could be
expected to reasonably anticipate.40 The proximate cause doctrine
prohibits recovery for damages where (1) the negligence was a
substantial factor in an overall cause of the harm; but (2) the nature of
the harm is such that it could not have been reasonably forseen and
guarded against.41

We will argue that while the crash was remote in fact from the security
company’s negligence, it was eminently foreseeable. Security breaches
lead to hijackings in which non-qualified individuals sieze control of
massive flying objects. Even without suicidal intent, incompetent pilots
are likely to crash, and the impact of a large aircraft is likely to cause
massive property damage.

39
Monahan v. Weichert, 82 A.B.2d 102 (N.Y. App. 1981).
40
Id.
41
Sheehan v. City of New York, 354 N.W.2d 382 (N.Y. 1976).

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