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Cinemark Wins Lawsuit, Demands Shooting Victims Pay $700,000 for Litigation Costs

Cinemark just won a legal battle with the victims of the 2012 mass shooting that occurred outside a Century 16 movie theater in Aurora, Colorado. Cinemark is also asking for a good chunk of change to pay off their legal fees. Seems harsh to ask the victims of a mass shooting to pay your legal fees, but Colorado law allows a winning party to recover reasonable litigation costs.

After the murder of 12 and the injury of 70, Cinemark was sued by several victims of the attack; the plaintiffs alleged that because Cinemark had a lack of security, such as armed guards and gaps in security camera coverage, they helped enable the attack. Last month, a jury sided with Cinemark and found the company wasn’t liable for the shooting.  Now, Cinemark has turned in a bill nearing $700,000 requesting the Court to order the victims to pay up.

In another similar case recently won by Cinemark in a federal court, a judge awarded the company “reasonable costs”; Cinemark has yet to turn in a bill for that case so it’s hard telling how high that one will be. What will this mean for the victims?  Will they be required to pay?

Sounds Extreme, Huh? Well, It’s Not a New Concept

It’s not necessarily a new concept that the losing party be asked to pay litigation fees. Traditionally, here in the U.S., parties are required to pay their own fees so that individuals can pursue litigation without fear that costs will be excessive, but there’s obviously exceptions.  Most states that have these types of laws were enacted for the purpose of encouraging parties to settle their own lawsuits and, thus, keep the court dockets unclogged.  Movie Shooting

This can be especially true in states, like Colorado, that have more specific statutes that state the losing party will pay litigation costs if they lost the case and refused a significant settlement amount prior to trial. More than half of the victims in the federal case against Cinemark settled prior to trial; no doubt that some of them factored into their decision the possibility of having to pay Cinemark’s litigation fees if they lost.  For those that didn’t, it’s probably a risk they weighed with their attorneys.

Since Colorado allows prevailing parties to recover some of its costs expended in order to go to trial, it’s important to note the distinction between costs of litigation and attorney’s fees because they are two entirely different things.

Costs of litigation are out-of-pocket expenses; though not an inclusive list, these can include anything from costs of expert witnesses, transcript and deposition fees, travel and photocopying costs, and trial-exhibit preparation costs. These are submitted to the court as a “bill of costs,” which is precisely what Cinemark did.

Attorney fees are what the attorney earned for working on the case and are generally not recoverable unless the lawsuit is found to be frivolous and groundless, which is actually pretty rare. In either case, judges have considerable discretion when determining which categories of costs to award, as well as the amount.

Awards Must Be Reasonable and Judges Have Discretion

What happens when a losing party is unable to pay? Unfortunately, if the plaintiffs are ordered to pay, Cinemark can use any legal means available to recover the money, even if the company knows the plaintiffs don’t have the money. The victims of the Aurora shooting could try negotiating a settlement with Cinemark.

In exchange for releasing the victims from any amount the Court orders them to pay, the victims could agree not to appeal the decision to a higher court.  This can sometimes just be used as a scare tactic, though.  According to The Wall Street Journal, attorney for the plaintiffs, Marc J. Bern, said the $700,000 bill “is an outrageous attempt to keep the plaintiffs from appealing” and said he plans to file an objection with the court.

Luckily, there’s still a sliver of hope for the Aurora victims. When determining what and how much of a party’s costs can be recovered, Colorado case law says that the judges should examine the overall context of the case and where the parties spent the majority of their time and resources.  The presiding judge on the case still has to approve any amount awarded to the company and it’s possible the judge might find the whopping $700,000 bill unreasonable.

EEOC Reaches First Sexual Orientation Discrimination Settlement

Title VII of the Civil Rights Act prohibits employers from discriminating against employees because of race, color, religion, or national origin. The Act doesn’t, however, specifically protect employers from discrimination based upon sexual orientation.  That didn’t stop the Equal Opportunity Commission (EEOC) from filing its’ first two sexual orientation claims earlier this year. Fortunately for the employee, a settlement was just reached in one of those cases.

Yolanda Boone filed suit on the basis that she was terminated from a Baltimore pallet company after complaining of being harassed because of her sexual orientation. Even though sexual orientation isn’t a protected class under Title VII, Boone had some pretty damning arguments against her former company.  You can read more about Boone’s story here, but she claimed once she complained to upper management, she was asked to resign and when she would not, she was terminated.

The EEOC took hold of Boone’s case and filed suit against her employer. The Baltimore company settled and with no small price either.  The company will be required to develop an employee-training program for LGBT workplace issues, make a $20,000 donation to the Human Rights Campaign’s Workplace Equality Program, and compensate Boone a total of $182,220.  There’s not much doubt that this will create a domino effect with the same result in the other pending matter.

Boone’s Settlement was Warranted Because EEOC Considers Sexual Orientation Discrimination Definitively Sex Discrimination

The EEOC is the governmental entity responsible for enforcing compliance with the Civil Rights Act and they’ve been taking great strides to honor the rights of the LGBT community. Often times, the EEOC will settle cases without filing a lawsuit. Gavel

In these recent cases though, I imagine the EEOC wanted to take a definitive stance on the matter in order to protect LGBT rights as they slowly gain traction, especially in light of all the recent law changes throughout different states that are negatively impacting the LGBT community.

Without an abundance of precedent to stand on, the EEOC took their first official stance on the matter last year when they definitively ruled that discrimination based upon sexual orientation can be classified under discrimination based on sex, which is strictly prohibited.

Courts will soon follow the EEOC’s footsteps. When looking to form a new protected class, courts will look to the history of discrimination, the economic disadvantages to the class, and immutable characteristics.

The LGBT community is discriminated against on a daily basis; just consider all the recent media attention from different states passing laws that allow businesses to refuse service to a patron because of their sexual preference. Economic disadvantages aren’t a hard argument to make either, for the same reasons.  Immutable characteristics?  No problem—there’s plenty of evidence and studies that convey one’s sexual preference is not a choice.

Supreme Court Decisions Lean Towards Favoring EEOC Interpretation

Although it’s up to the courts (or an unlikely law change) to interpret Title VII in the same manner as the EEOC, in the past federal courts have typically given great deference to EEOC decisions. The courts aren’t far behind a similar mindset either when you consider past decisions like Griswold v. Connecticut, Lawrence v. Texas and, most notably, recent decisions like Obergefell v. Hodges.

Griswold established that intimate choices defining one’s personal identity are a fundamental right under the 14th Amendment, while Lawrence struck down a law that tried to prohibit intimate sexual contact between members of the same sex.

Although the latter didn’t deal specifically with workplace discrimination based upon sexual preference, the Justices stressed that a personal relationship is within a person’s own liberty to choose and, again, reiterated that core principle in Obergefell. I can’t imagine the Justices on today’s bench would find workplace discrimination based upon sexual preference acceptable.

Despite the fact that Boone’s case settled, it’s not a step back. The EEOC’s primary mission is to enforce federal laws and make sure individual rights are protected.  It’s more about awareness and making sure companies comply with EEOC policies moving forward.

With the settlement of the lawsuit, the Baltimore company is forced to change their policies and will undoubtedly do more in the future to make sure their employees are protected.  Again, it’s a domino effect and once the EEOC rules start gaining traction, other companies will take note and start complying.

Alligator Attack at Walt Disney World: How Wild Animals Can Change the Claim

On June 14, 2016, Lane Graves, a 2 year-old boy, was dragged from the shallows of a lagoon near the Walt Disney World Resort. He was later found dead, after the alligator dragged him away from his family and killed the child. The attack shocked park-goers and families throughout the nation. Soon, the news was filled with stories of parents sharing pictures of their children playing at the exact spot where the little boy lost his life.

Since then, The Walt Disney Company has taken every step to show remorse, sympathy, and compassion for the Graves family and visitors. But despite good will and efforts to remedy the situation, Lane’s family has a possible cause of action against the Happiest Place on Earth.

But what is the possible cause of action, or claim, they can file? Most importantly, what does this mean for Disney and other landowners who may face the same problems? What does it mean for their guests?

A Strict Liability Claim

Under strict liability, an owner of a wild animal can be held strictly liable for any injuries or damages caused by the animal, even if the owner took precautions or was not at fault. Wild animals are considered abnormally dangerous and ultra-hazardous due to their very nature. Alligator

But, here Disney can argue that they do not own the alligators on their property. In fact, Disney has removed 244 alligators from 2006 to 2016. After the attack on June 14, they removed six more from the area. If the alligators return enough to be a “nuisance”, they are euthanized. So in this case, Disney does not want the alligators on their property and do not own them. So in the end, Disney cannot be held liable under a strict liability claim, but can only be held liable under a negligence claim.

A Negligence Claim

Under Tort law, the Graves family can sue Disney for failing in their duty to protect their guests from known, dangerous wildlife on property. To establish their claim, the Graves family will need to prove that Disney had:

  • a duty to keep the area safe;
  • they breached the duty;
  • the breach was the cause of the child’s death; and
  • the family suffers measurable damages due to the death.

While the analysis may seem obvious in cases like these, each aspect must be proven in turn. Disney World Resort is a commercial property, owned and operated by The Walt Disney Company. It invites people onto their land for a fee, and once they pay the fee, the guests are legally considered “invitees”, or more specifically “business invitees” or guests. The legal status of the Graves family is important, as it will determine the level of due care that Disney owes in the situation.

In this case, it is clear that the Grave family are guests of Walt Disney Resort. Disney did not put up adequate signs to warn guests about the real danger of alligator attacks. Their failure to put up proper signs should have been foreseeable to them that their guests may be hurt by an alligator, and that their guests would not have gone near or into the water if there was an adequate warning sign. Finally, it is undeniable that the Graves family suffered a terrible injury from the attack.

In this case, it is unlikely that Disney will be able to defend against a wrongful death claim from the Graves Family. But is it fair for Disney and other property owners to not face strict liability?

Landowners Get Additional Protection from the Law, So They Must Give Additional Protection to Their Guests.

As discussed earlier, landowners are held strictly liable for any injuries caused by a wild animal they own on their property. This includes pet tigers, lions, bears, and any other animal that is not domesticated. But it does not include wild animals that happen to roam the property.

The law was written with the understanding that wild animals are uncontrollable, especially animals that enter private property without knowledge of the owner. The law does not hold landowners responsible for the actions of a random, wild animal on their land.

But it does not mean landowners, like Disney, won’t face punishment for injury or death of a guest. The law declares that landowners like Disney have a duty to repair and correct known dangers, as well as a duty to reasonably inspect, discover, and correct unknown dangers in areas that guests are able to access.

What is “reasonable” is decided by the court, and it is often based on what the landowner is capable of doing. For example, Disney is a multi-billion dollar and they are known for exercising great control over the quality and safety of their parks. So the court may order Disney to do far more than an average landowner who also has alligators on their property.

Net Neutrality Is Society’s Net Gain

Just last week, the Federal Appeals Court voted 2-1 to uphold the FCC’s strict new net neutrality rules in the face of a challenge from several internet service providers (ISPs) unhappy with the changes proposed.

The new FCC policy , a 183-page behemoth published in February 2015, changes the classification of ISPs to that of a public utility such as telephone services.  It also sets forth five rules that ISPs must abide by:

  1. ISPs “may not block access to legal content, applications, services, or nonharmful devices.” In other words, ISPs can’t block access of any legal user to any legal website.
  2. ISPs can’t throttle, or slow down, the delivery of any legal internet traffic.
  3. ISPs can’t make a company pay to give its data packets priority delivery or prioritize the delivery of data from their own services.
  4. ISPs can’t adopt practices which would harm consumers or people providing services on the internet.
  5. ISPs must offer transparent specifics on how they run their broadband networks.

The policy also provides for an exception for reasonable management of a broadband network. ISPs are allowed to prioritize data so as to keep things running smoothly, but cannot use this for their own commercial advantage.

Getting to this point has been a hotly contested battle. The FCC initially proposed much weaker regulations.  However, the combination of a call from President Obama for stronger rules, 4 million comments filed with the FCC, and protesters who went so far as to sit in the FCC Chairman’s driveway and demand a stronger policy, all came together to convince the FCC to pass the current policy.

Taken together, these rules are a new way of enforcing an old concept, net neutrality. The FCC has not had means of enforcing such rules until this most recent policy was published.

What is Net Neutrality?

Net neutrality is the concept that internet providers should treat all data on the internet equally—regardless of source.  All information passing through broadband networks and backbone networks should be given equal priority to the extent possible without effecting function.

For instance, text on a website can have data packets arrive in any order while video and audio must arrive in a specific order and in a timely fashion to function—net neutrality doesn’t require companies to ignore the concerns of functionality. Sorry About That

What net neutrality does is prevent blocking of content, throttling content (intentionally slowing down some content or speeds up others), and paid prioritization where some services are stuck in a “slow lane” because they do not pay a special fee. Essentially, it keeps ISPs in the business of charging users for internet connection as opposed to charging edge providers for users while the people buying internet service from them suffer.

The phrase net neutrality was first introduced in 2003 by law professor Tim Wu. Since it has had a name, it has been the subject of hot debate in the courts of both law and public opinion.

The Federal Appeals Court Ruling

The most recent rules, upheld by the Federal Appeals Court, treat both fixed and mobile ISPs as telecommunication services. This was a large part of why the Appeals Court finally upheld the FCC’s policy.  The court felt that the internet was so integral to day-to-day society that the change in classification was proper. The court’s dissenting judge, Judge Stephen Williams, argued that even though the FCC could legally reclassify broadband companies as telecommunications carriers there wasn’t enough evidence presented that society’s approach to internet had changed enough to warrant the change.

ISPs such as AT&T have seen a thorough trouncing in this case. The court accepted the rules put forth by the FCC exactly as written and then spent the remainder or their 115-page majority opinion rejecting every argument (and there were a lot of them—calling the rule overreaching and arbitrary) raised against the new net neutrality rules by both AT&T, parties who actively sought to join the case to throw more firepower at the issue, and outside parties who filed briefs seeking to be heard on the issue.

While the decision is a win for net neutrality, it will almost certainly be appealed. AT&T’s counsel was quoted saying “We have always expected this issue to be decided by the Supreme Court, and we look forward to participating in that appeal,”

How Does this Decision Effect the Average Consumer?

The FCC’s policy ensures you will not have to pay for internet that essentially only allows access to part of the internet. There is even a potential that, without these policies, consumers would end up buying internet website bundles in the same way you buy channels on cable TV—a practice that already exists in some African countries without net neutrality provisions.

Opponents of net neutrality argue that many consumers only visit a few websites, and would be happy to pay less for access to just these sites. This is the idea behind the bundled deals offered in countries such as Ghana—providing access to just a very few websites such as Facebook.  They also argue that it prevents people who wish to pay more from purchasing “fast lane” connections.  They say that some websites, especially popular streaming websites, take much more bandwidth than the average website and are thus taking advantage of ISPs.  Cable companies also bemoan the possibility of chilled investment in their networks.

What net neutrality actually does is prevent ISPs from limiting access to the internet, providing preferential treatment to internet services they provide or services that are willing to be strong-armed through bandwidth throttling into giving them a cut of their profits (as Netflix was forced to do not so long ago).  You already pay for a certain amount of bandwidth and this decision will not change that.  It just means that you will have the same access to the entirety of the internet—the premise that has allowed the internet to grow from its inception as a tiny communication network used by universities and the government into a global tool of free information and change.

A world without net neutrality certainly would benefit ISPs—allowing them to make money by slicing up the internet into packages and by creating artificial scarcity of broadband through “fast lane” internet sold to edge providers like Netflix.  In order to create a “fast lane,” providers would artificially place all other data in the slow lane.  Net neutrality prevents this, and in doing so maintains the social benefit of a free internet.  What’s more, it prevents ISPs from choking small business—unable to afford artificial premiums—out of the market.

Frankly, net neutrality is not about making huge changes to the internet—it’s about stopping them. Without the low barrier to entry provided by the internet, many of today’s biggest companies, such as Google, could never have existed.  The ruling of the Federal Appeals Court is a victory for both the consumer, and for innovation.

This ruling isn’t final; we can expect these rules to be before the Supreme Court before we’ll know whether they’re here to stay. However, this is the first step towards keeping the internet in the form we’ve all come to know and love.

Church Asked To Leave Their Lease Early Because of Orlando Comments

What was meant to be a fun night out turned into a gruesome crime scene when Omar Mateen, a 29-year-old American, gunned down 49 people and injured 53 inside a gay nightclub in Orlando, Florida. It was the deadliest act of violence against the LGBTQ community in U.S. History.

Shortly after the horrendous tragedy, a video emerged on YouTube of Pastor Roger Jimenez of Verity Baptist Church in Sacramento, who praised the gunman’s actions. He went on to call the victims pedophiles and predators.

“I think Orlando, Florida, is a little safer tonight,” he told his congregation after the Orlando attack. “The tragedy is more of them didn’t die – I’m kind of upset he didn’t finish the job!”

Now, Verity Baptist Church’s landlord, Harsch Investment Properties, is asking them to move immediately. Although their lease doesn’t end until March 31, 2017, Harsch is requesting they leave without any penalty for breaking the lease agreement early. Their reason? They support the LGBTQ community and other organizations whose missions are to “further respect, dignity and the ability for all individuals to live their lives as they wish.”

Are there any arguments the church can make to continue to rent the property?

Can a Landlord Legally Require a Tenant to Break the Lease?

A lease is a binding contract, and the terms of the lease control. A landlord cannot coerce or legally require a tenant to break a lease unless both landlord and tenant agree in writing to change the terms of the lease. Roger Jimenez

However, a landlord can evict a tenant if the tenant breaches the contract. In other words, if the tenant does something that the lease specifically prohibits, the landlord can begin the eviction process. For example, if a landlord leases his property to a church and the lease doesn’t allow subleasing, the church cannot rent the space to a law office as that would be considered impermissible subleasing.

In this case, Harsch Investment Properties cannot require the church to move out based on Pastor Jimenez’s comments unless those comments would violate a clause in the lease. Notwithstanding, the church can elect to move at Harsch’s request and would not be penalized for breaking the lease.

Religious Discrimination?

If the church is feeling threatened or coerced to abruptly break their lease, they may argue they are being discriminated against based on their religious beliefs. Religious discrimination is treating a person or group unfavorable because of their religious beliefs. The law protects people who belong to traditional, organized religions, but also others who have sincerely held religious, ethical or moral beliefs, in both employment and housing settings.

Here, the church has several arguments. First, they may argue that their religious beliefs prohibit them from supporting the LGBTQ in any capacity, and that asking them to leave their lease is discriminatory based on their religious beliefs. Because Harsch Properties has no legal right to require the church to break their lease, this argument would prevail.

Second, the church may want to distance itself from Pastor Jimenez himself. The church could argue that Pastor Jimenez’s beliefs and what he preached did not reflect the ideals of the church, and therefore, they should not be required to leave the property. Again, because Harsch Properties has no legal right to require the church to move, this argument would also prevail.



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