On July 20, 2012, James Holmes walked into a packed theater in Aurora, Colorado and opened fire on patrons watching a midnight showing of the Batman movie “The Dark Knight Rises.”  Holmes killed twelve people and injured another 70, some seriously and for life.  A jury found Holmes guilty of 24 counts of murder, numerous counts of attempted murder (and other charges) and will spend the rest of his life in jail.

Many of the surviving victims and the families of those who died sued the owner of the movie theater, Cinemark, for damages.  Some sued in state court, some in federal court.  They alleged that the theater did not provide adequate protection for their patrons and thus had liability for their damages.  Holmes had bought a ticket for the movie, sat in the front row, exited the theater through the emergency exit door about 20 minutes into the movie.  He then obtained his weapons from his car, returned via the propped emergency exit door and opened fire.

In May 2016, a Colorado state court jury found that the theater had no liability in this massacre as it could not have been reasonably been foreseen and that it should not be held responsible for the actions of a deranged individual.  Under Colorado court rules, a prevailing party can make a motion to the court for the losing party to pay for the prevailing party’s legal costs.  And that is precisely what Cinemark did.  They are seeking nearly $700,000 in legal costs.  Legal costs in Colorado do not include lawyers fees.  Cinemark is seeking reimbursement for costs such as the expense of preserving evidence, retrieving and copying records, travel, and other costs.  Needless to say, social media was not kind to Cinemark.

Now, based on the outcome of the state case, the federal court dismissed its case by motion, with a judge also awarding reasonable legal costs to Cinemark.  But 24 hours before the judge dismissed the case, he hinted at the outcome and suggested to the parties they reach a settlement.  Full details are in this Los Angeles Times article, but here are the highlights:

The settlement offer was a pittance, [victim Marcus] Weaver thought: $150,000 split among the 41 plaintiffs.


The choice for the survivors was clear: “Either seek justice and go into debt, or take that pitiful offering of money and the improved public safety,” Weaver said.

The plaintiffs and their attorneys all seemed to agree. They decided on a split of $30,000 each to the three most critically injured survivors. The remaining 38 plaintiffs would equally share the remaining $60,000.


Then one plaintiff rejected the deal. Her suffering had been profound: Her child was killed in the shooting, she was left paralyzed and the baby she was carrying had been lost.


Weaver removed himself as a plaintiff immediately. So did 25 others. By the next day, 15 plaintiffs remained when [Judge R. Brooke] Jackson handed down the order that Cinemark was not liable for the damages.

The costs in the federal trial are expected to exceed those of the state trial.  That represents a nearly $1 million swing from the rejected offer to the potential for having to pay costs.  The cost elements of both trials still need to be argued and settled.  One or both cases may also be appealed, which will either cause the sides to settle as the stakes grow even higher, or cause the legal costs to skyrocket for both sides.

I’ve written many times about why parties settle cases.  This incident is a Shakespearian tragedy whereby everyone comes out the loser.  Hopefully, a settlement can be reached that achieves the needs and interests of all the parties.  No one needs further tragedy.

In NJ, the parties generally pay their own way unless a statute or contract provides for fee shifting.  NJ courts also have an Offer of judgment Rule (Rule 4:58), where a party can make a binding offer to the other party and, if rejected, would be liable for legal fees and costs should that party prevail by more than a 20% margin.  An Offer of Judgment can be leverage to obtain a realistic settlement since there are significant consequences for not prevailing.