Search results for: pro se

bill-oxford-OXGhu60NwxU-unsplash

By John W. Egan and Minh N. Vu

Seyfarth Synopsis: Second Circuit issues scathing decision directed at “mad lib”-style serial ADA Title III complaints, and affirms-on the basis of standing-the dismissal of four lawsuits alleging that retailers violated the ADA by not providing gift cards containing Braille.

As we previously reported, from the end of 2019 through the first few months of 2020, a group of serial ADA plaintiffs barraged New York federal courts with over 200 boilerplate lawsuits alleging that retailers and other businesses violated the ADA and New York state and city laws by failing to offer for sale gift cards in Braille.  In 2020, Judge Woods of the SDNY dismissed four of these cases, and plaintiffs appealed to the Second Circuit.

On June 2, 2022, the U.S. Court of Appeals for the Second Circuit affirmed the dismissals in a scathing decision that expresses the Court’s ire with the hundreds of boilerplate lawsuits that have inundated New York federal courts in recent years.  The decision further makes clear that plaintiffs who do not allege specific facts to establish their standing to sue will have their claims dismissed — a theme that continues from the Second Circuit’s recent decision in Harty v. West Point Realty.  In that case, the Court held that ADA plaintiffs must allege “downstream consequences” of being deprived information on a website to establish an Article III standing.

In the four cases that were consolidated into Calcano v. Swarovski North America Ltd., each plaintiff allegedly called the customer service offices at the respective businesses, asked whether the business sold gift cards in Braille, and was told that they did not.  Each plaintiff also alleged that they live near defendants’ stores, that they had been customers there “on prior occasions,” and that they would “immediately” purchase Braille gift cards once they became available.

The Second Circuit said these allegations were insufficient to show that plaintiffs faced a “material risk of future harm” that is “sufficiently imminent and substantial” to confer standing to sue under Title III of the ADA.  “[T]he central inquiry is not whether the complaint pleads the magic words that a plaintiff ‘intends to return,’” and therefore faces an imminent harm, but rather whether, under the “totality of all relevant facts,” plaintiff plausibly alleged a real and immediate threat of future injury (emphasis added).

In concluding that plaintiffs did not demonstrate a real and immediate threat of future injury, the Court noted the following:

  • Plaintiffs failed to allege any details about their past visits or the frequency of those visits, including what stores they visited, what they purchased, or even why they want to purchase Braille gift cards so urgently that they intend to do so “immediately;”
  • In only one out of the four cases did plaintiffs provide an accurate address for the defendant’s retail location (in one instance erroneously reciting a store address in Manhattan when defendant did not have a location anywhere in that borough). And in the one complaint where the business address was correctly stated, plaintiff alleged that his residence in the Bronx was “close” to the subject store near Columbus Circle in Midtown Manhattan, even though that trip that could be up to an hour away; and
  • Plaintiffs’ jurisdictional allegations simply “parrot[ed]” the Second Circuit’s language in a prior ADA Title III decision, which the court deemed “legal conclusion[s] couched as factual allegations.”

Most importantly, in evaluating the plausibility of plaintiffs’ allegations, the court refused to ignore the broader context of their litigation tsunami — citing that each of the four litigants were responsible for filing 81 out of the over 200 “essentially carbon copy complaints.”  In two of Calcano’s complaints, the court noted that only 26 of approximately 6,300 words, consisting of party names, dates, addresses and states of incorporation, were different, with both complaints including the very same typos.

Along the same vein, the court went further:

This backdrop of Plaintiffs’ Mad-Libs-style complaints further confirms the implausibility of their claims of injury. As noted above, Murphy asserts that he would return to a Kohl’s that doesn’t exist. Dominguez seeks to go back to Banana Republic for its food.  Thorne doesn’t even allege where he lives, making an assessment of proximity to a Jersey Mike’s impossible.  Calcano plans to travel from somewhere in the Bronx to Columbus Circle for a shaving supply gift card.  And all of these plans depend on the availability of braille gift cards even though Plaintiffs never explain why they want those cards in the first place. Although we might excuse a stray technical error or even credit an odd allegation standing alone as an idiosyncratic preference—to do so here in light of the cumulative implausibility of Plaintiffs’ allegations would be burying our heads in the sand. “[J]udicial experience and common sense” suggest that the errors, oddities, and omissions in the complaints are a result of their mass production, and they render each Plaintiff’s cookie-cutter assertion of standing implausible.

(Citation omitted.)

We note that in affirming the dismissal of these four cases on standing grounds, the Second Circuit majority did not reach the question of whether gift cards are covered by Title III of the ADA.  Judge Lohier, however, issued a concurring opinion that sharply disagreed with the majority’s reasoning on standing, as well as the lower court’s determination that a gift card is a “good” that is not required to be accessible under the ADA.

On this Blog, we have previously questioned whether the year-over-year increase in ADA Title III filings has been due to an uptick in discrimination, or more likely, because more lawyers elect to file more claims.  From the defense perspective, it is nice to see the Second Circuit majority in Calcano refusing to “bury . . . [their] heads in the sand.”

pexels-erik-mclean-4833548

By Minh N. Vu

Seyfarth synopsis:  The Ninth Circuit holds that a restaurant’s practice of exclusively providing service at the drive-through and refusing to serve pedestrians at the drive-through line does not violate the ADA.

Many fast food restaurants nowadays take food orders and deliver food exclusively at the drive-through window during certain business hours.  Due to safety concerns, at many locations, restaurants do not allow pedestrians to order at the drive-through window.  Blind customers who do not drive have filed lawsuits against restaurants over this practice, alleging that this facially-neutral practice denies them access to the food offered by these establishments.

So far, the restaurants are winning.  Last week, the Ninth Circuit in Szwanek v. Jack in the Box held that the fast food restaurant’s practice of only providing service at the drive-through does not violate the ADA, even if the practice prevents blind people from being able to independently order food.  The court stated:

A facially neutral policy, like the one at issue here, violates the ADA only if it burdens a plaintiff “in a manner different and greater than it burdens others.”  The operative complaint does not plausibly allege that the Jack in the Box policy did so. The refusal to serve food to pedestrians at drive-through windows does not impact blind people differently or in a greater manner than the significant population of non-disabled people who lack access to motor vehicles. If these non-disabled individuals wish to purchase food at Jack in the Box restaurants when the dining rooms are closed, they face precisely the same burden as blind people—they must arrive at the drive-through window in a vehicle driven by someone else.

(citations omitted).  The court distinguished this case from another Ninth Circuit decision from 1996 (Crowder v. Kitagawa) in which the court concluded that Hawaii’s 120-day quarantine requirement for all dogs violated the non-discrimination requirements of Title II of the ADA (applicable to state governments) because the requirement “burdens visually-impaired persons in a manner different and greater than it burdens others.”  The court noted that visually-impaired people have a “unique dependence upon guide dogs” and the quarantine “effectively denied these persons… meaningful access to state services, programs, and activities while such services, programs, and activities remain open and easily accessible by others.”  The Ninth Circuit in Crowder had relied in part on the legislative history of the ADA which evidenced Congress’ intent to ensure that people with disabilities are not separated from their service animals.

Ninth Circuit Judge Watford dissented in Szwanek, stating his view that the “drive-thru only policy unduly burdens the blind because, as a result of their disability, they are unable to drive,” and “[t]he blind (and others whose disabilities preclude them from driving) are entitled to a reasonable modification of the drive-thru only policy because that is what’s necessary to afford them “full and equal enjoyment” of the goods Jack in the Box offers.”  While finding that the plaintiff did state a claim for violation of the ADA on the facts alleged in the Complaint, Judge Watford acknowledged that the restaurant might ultimately be able to show that the demanded modification of the policy was not reasonable or would fundamentally change the nature of the goods and services offered by the restaurant, but that those questions could not be decided on a motion to dismiss.

Szwanek comes on the heels of a district court decision from the Northern District of Illinois which also concluded that another fast food restaurant did not violate the ADA by limiting service to the drive-through and not allowing pedestrians to order at the drive-through window.  The trial court there concluded that the reason the plaintiff was denied service was because he was a pedestrian, not because he was disabled.  The court did not address the ADA’s obligation to make reasonable modifications to normal policies, practices and procedures that are necessary to ensure access, however, and the case is now on appeal to the Seventh Circuit.

Stay tuned for more updates on this evolving issue.

Edited by Kristina Launey

 

iStock_000016791364Large-300x199.jpg

Seyfarth Synopsis: A second California Court of Appeal rules that websites with a nexus to a physical place of business are covered by Title III of the Americans with Disabilities Act, while a California trial court insists that online-only websites are covered as well, contradicting the U.S. Court of Appeals for the Ninth Circuit.

On June 18, 2020, the California Court of Appeal for the Fourth Appellate District became the second California Court of Appeal to rule, in Martinez v. San Diego County Credit Union (SDCCU), that websites with a nexus to a physical place of business where customers go are covered by Title III of the Americans with Disabilities Act (ADA).  The first decision, in Thurston v. Midvale, was issued in September 2019 by the Second Appellate District Court of Appeal and affirmed the trial court’s ruling that Midvale violated the ADA and California Unruh Civil Rights Act by having a restaurant website that could not be used by a blind person with a screen reader. The SDCCU decision reversed a trial court’s decision that the website of a credit union with physical banking location was not a “public accommodation” under the ADA. These two California state court appellate decisions are consistent with the position of the federal U.S. Court of Appeals for the Ninth Circuit, which has also held that a website with a nexus to a physical place of business where customers go is covered by the ADA on the theory that the website is a service or benefit of a place of public accommodation.

The SDCCU decision is noteworthy because the Court of Appeal discussed at length what it means to have a “nexus” to a physical place of business. It noted that the courts have not yet articulated a single standard on this issue, but that most federal circuits and one California Court of Appeal (Midvale) have found that a nexus exists if the facts show the website “connect[s] customers to the goods and services of [the defendant’s] physical” place.  This standard is much less demanding standard than in, say, the 11th Circuit, which requires plaintiffs seeking to bring ADA claims about inaccessible websites must show that a barrier on the website prevented them from enjoying the goods and services of that physical place.

The SDCCU Court of Appeal expressly withheld its opinion on whether a website with no nexus to a physical place (i.e. an online-only business) is covered by the ADA since the defendant credit union had a physical location.

On that question, at least one California state trial court (in Riverside County) has (recently) decided that an online-only business is covered under Title III of the ADA.  In Martinez v. Kydia Inc., the trial court acknowledged the U.S. Court of Appeals for the Ninth Circuit had reached the opposite conclusion in several cases but chose not to follow these holdings. Instead, the Court of Appeal framed the issue as “whether equality applies to a non-physical marketplace within the meaning of Title III of the ADA.” The court noted that there is “no direct guidance in California through the district courts”, and that it was “not persuaded” by the Ninth Circuit’s Domino’s (and Target) decision because there was a nexus in those cases, before examining decisions in out-of-state district courts on the issue. The SDCCU Court of Appeal cited dicta in the Thurston v. Midvale Court of Appeal decision that “Congress intended the ADA to ‘keep pace with rapidly changing technology’ and “[e]xcluding websites just because they are not built of brick and mortar runs counter to the purpose of the statute.”

The takeaway from these cases is that in California state and federal courts, the websites of brick and mortar businesses falling into the definition of a “public accommodation” under Title III of the ADA are covered by the law. Whether online-only businesses are covered by Title III of the ADA remains an open question in California state court, with at least one trial court now saying the answer is yes.

Edited by Minh N. Vu

bank-banking-blue-50987

By Minh N. Vu and John W. Egan

Seyfarth Synopsis:  Enterprising plaintiffs in New York are suing more than 100 businesses under a new theory – – that ADA Title III requires Braille gift cards.

Between Thursday, October 24 and as recently as last Friday, over 100 putative class action lawsuits (and counting) have been filed against businesses for violations of ADA Title III, as well as the New York State and City Human Rights Laws in the United States District Courts for the Southern and Eastern Districts of New York.  The complaints are nearly identical and assert the same theory: A business that provides a gift card for purchase, but does not offer a Braille version, is committing discrimination against individuals who are blind or have visual impairments.

There are 11 plaintiffs and 4 law firms that have filed these cases.  Coincidentally, these are the same litigants and attorneys who have filed hundreds of lawsuits against businesses (including some of the same business targeted in these gift card cases) for allegedly inaccessible websites over the past several years.  In fact, based on our research, these plaintiffs and their attorneys, taken together, were responsible for approximately one-third of all federal website accessibility lawsuits filed in New York last year.

Businesses facing a barrage of website accessibility lawsuits and demand letters must now deal with this new threat based on what certainly appears to be a coordinated and wide-ranging legal challenge.

The gift card complaints allege that the plaintiff is blind and contacted the defendant earlier this month to inquire as to whether its gift cards are provided in Braille.  When each defendant allegedly responded that a Braille gift card was not available, the plaintiff commenced a lawsuit shortly thereafter.  The complaints cite at least one retailer that sells a gift card with its name in Braille, recites the ubiquity and importance of gift cards in the retail industry, and relies on the provision of Braille materials as an example of an auxiliary aid or service in ADA regulations.

Without “giving away the store,” we believe that there are compelling defenses to these cases and look forward to how the judges in the SDNY and EDNY will respond.  Stay tuned to the Blog for further updates on this developing story.

Edited by Kristina M. Launey

By Kristina M. Launey & Minh N. Vu

Seyfarth Synopsis: Four years and two motions to dismiss based on the pleadings later, the National Association of the Deaf’s (NAD) online video captioning lawsuit against Harvard is moving forward to fact discovery. On March 28, Federal Magistrate Judge Robertson in the District of Massachusetts denied the university’s motion for judgment on the pleadings with some notable discussion about whether websites are places of public accommodation under the ADA and limitations of liability for third party content.

Physical Nexus Argument Rejected. The First Circuit has held in a case about an allegedly discriminatory insurance policy that a business can be a public accommodation covered by Title III of the ADA even if it is not associated with a physical place where customers go. Harvard argued that this precedent did not apply to cases involving websites, but the Court was not persuaded. The Court also said that even if the law did require Harvard’s websites to have a nexus with a good or service provided at a physical location, the Plaintiffs had sufficiently alleged such a nexus because some of the allegedly inaccessible videos could, for example, pertain to courses taught at the school.

University Content Posted on Third Party Websites. The Court said whether Harvard could be legally responsible for content it posts on third party websites (e.g. YouTube, iTunesU, and SoundCloud) depends on facts which have yet to be developed, including whether the university has control over how the content is displayed, and whether captioning the content would provide meaningful access. The Court also noted that the university may be able to show that providing captioning would fundamentally alter the nature of the service provided or be an undue burden.

CDA Immunity for Third Party Content. In a meaningful initial victory for Harvard, the Court acknowledged that the Communications Decency Act (CDA) shields Harvard from liability under Title III of the ADA and the Section 504 of the Rehabilitation Act with respect to two categories of content: (1) content hosted on a third party-server (not belonging to Harvard) that is hyperlinked in its existing form to content that is hosted on a Harvard platform or website (“Embedded Content”) and (2) content is hosted on a Harvard platform or website that Harvard did not create, produce, or substantially alter (“Third Party Content”). The CDA shields website operators, including educational institutions, from being treated as the publisher or speaker of material posted on the website by third party users. While the Court’s holding reduces the number of videos that remain at issue in the case, the Court was not willing to immediately exclude all content posted by students, individual faculty members, or other scholars as requested by Harvard. The Court said discovery into Harvard’s role with respect to such content is needed to see if it really is third party content exempted by the CDA.

To Be Continued… We will continue to monitor this long- running case. NAD filed the lawsuit in 2015, alleging Harvard violated Title III of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act by failing to provide closed captioning for thousands of videos on its websites. In November 2016, the court denied Harvard’s motion to stay or dismiss on the primary jurisdiction doctrine, finding the court did not need the DOJ’s expertise to rule on the issue. The present order noted that in the time intervening the two motions, the parties engaged in settlement talks and negotiations to resolve or narrow the issues, but could not reach an agreement.

Seyfarth Synopsis:  DOJ provides guidance on sales/service counter rules in the 2010 Standards that provides some relief to businesses.

Retailers and other businesses should be pleased with the DOJ’s pronouncement on February 25, 2019, that they can lawfully provide sales/service counter space that is less than 36” long, as long as the entire space is at an accessible height of 36” or lower.  While we always thought the 2010 ADA Standards for Accessible Design (“2010 Standards”) were unambiguous on this point, plaintiffs filed many lawsuits claiming the ADA requires retailers to provide a minimum 36” length of lowered accessible counter that is entirely clear of all objects.  Courts have reached different conclusions, and now the DOJ has weighed in.

The DOJ’s statement came in the form of an amicus brief which Judge William Alsup of the Northern District of California had requested in connection with a pending motion for summary judgment.  The sales/service counter at issue in the case was at an accessible height (i.e., 36” or less above the floor), but did not provide a 36” length because it included items such cash registers and merchandise displays on the counter.  The DOJ stated that this counter complies with the Exception to Section 904.4.1 of the 2010 Standards because it is at a uniform accessible height, even if the space provided is not 36” long.  The DOJ also said that the placement of merchandise displays and a cash register on a sales/service counter that is 36” long does not violate the 2010 Standards because Section 904.4.1 “does not so much as mention, let alone prescribe any requirements regarding ‘clear’ counter space.”

While this DOJ pronouncement provides much needed clarification, businesses should consult their ADA Title III specialist attorneys before filling up their accessible lowered counters with anything more than a register and some merchandise displays, particularly if high counters are provided for use by non-disabled customers.

Edited by Kristina M. Launey

Seyfarth Synopsis: The Supreme Court’s recent ruling in Fry v. Napoleon Comm. Schools limits IDEA’s exhaustion requirement to those cases which seek relief for a denial of FAPE allowing for some claims brought under Title II and Section 504 on behalf of IDEA eligible students to proceed directly to court without implementation of IDEA’s administrative processes before litigation is commenced.

On February 22, Justice Kagan delivered the U.S. Supreme Court’s opinion in Fry v. Napoleon Comm. Schools et al., 580 U.S. ____ (2017), and refined the scope of the Individuals with Disabilities Education Act’s (IDEA) exhaustion requirement by holding that this requirement may – in certain circumstances – not apply to a complaint brought under Title II of the ADA and Section 504 of the Rehabilitation Act.  The case specifically addressed whether IDEA’s exhaustion requirement barred claims for injunctive and monetary relief under Title II and Section 504 based on allegations that a school district denied a disabled child the right to bring a service dog to school.

Noting that IDEA’s statutory language requires exhaustion when a civil action is brought “seeking relief that is also available under [the IDEA],”  the Supreme Court held that to meet the IDEA’s statutory exhaustion standard, “a suit must seek relief for the denial of a [free appropriate public education (FAPE)], because that is the only ‘relief’ the IDEA makes ‘available.’”  The Court found that a court should look to the “gravamen” of the plaintiff’s complaint in making the determination and pointed out that that “exhaustion of the IDEA’s administrative procedures is unnecessary” in cases where the broader point of a suit is about “something other than the denial” of that statute’s guarantee of FAPE for students with disabilities.  The Court recognized overlap in the protections afforded by IDEA, which is designed to guarantee students individually tailored special education and related services to provide FAPE, and the protections of Title II and Section 504, which mandate nondiscriminatory access to public instruction.  In doing so, the court provided “clues” to guide the exhaustion determination.  The Court described the first clue as coming from the following “pair of hypothetical questions”:

“First, could the plaintiff have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school–say a public theatre or library?  And second, could an adult at the school–say, an employee or visitor–have pressed essentially the same grievance?”

The Court opined that when “the answer to these questions is yes, a complaint that does not expressly allege the denial of a FAPE is also unlikely to be truly about the subject.”  The Court identifies the second clue as:

“emerg[ing] from the history of the proceedings.  In particular, a court may consider that a plaintiff has previously invoked the IDEA’s formal procedures to handle the dispute–thus starting to exhaust the Act’s remedies before switching midstream.”

Recognizing the history of the underlying proceedings might suggest that the “gravamen of [Parents’ federal lawsuit] is the denial of FAPE,” the Court remanded the case with instructions that the court below “decide whether their actions reveal that the gravamen of their complaint is indeed the denial of a FAPE, thus necessitating further exhaustion.”

As a practical matter, this decision highlights the importance of compliance with Title II’s and Section 504’s accessibility mandates.  Failure to adequately monitor and address issues of alleged noncompliance could more readily lead to a lawsuit filed directly in federal court without IDEA’s processes and opportunities to resolve complaints before litigation is commenced. Therefore, this holding suggests that more litigation will be filed directly in federal court under Title II and Section 504 asserting that a public school failed to provide non-discriminatory access to an aid, benefit or service to disabled students otherwise eligible for IDEA’s special education programming.

Edited by Kristina Launey.

Seyfarth Synopsis: DOJ published regulations today requiring that movie theaters throughout the United States provide closed captioning and audio description to patrons with disabilities for digital movies distributed with these features.

Today, the Department of Justice (DOJ) published its final rule requiring theaters throughout the United States to provide closed captioning and audio description (if available) for movies exhibited in digital format.  The new regulations will take effect on January 17, 2017.

As we covered here, DOJ issued a Notice of Proposed Rulemaking (NPRM) in August of 2014, which proposed rules requiring that theaters purchase and deploy specific equipment to provide closed captions for individuals who are deaf or hard of hearing, and audio description for patrons with visual impairments.  The proposed regulations also included requirements to advertise the availability of these technologies, and have a staff member on-site to locate, operate, and troubleshoot this equipment.

The final rule adopts many of these proposals, although several were scaled back, presumably in response to public comments submitted by theater representatives, advocates and owners.  DOJ estimates that complying with these regulations will nonetheless cost the industry between $88.5 and $113.4 million over the next 15 years.

We outline the key provisions below.

  1. Applies to All Digital (Not Analog) Movie Theaters

The new regulations apply to movies shown in digital format (i.e. images and sound captured on computer disk rather than film) and not analog format (i.e. 35 mm).  Although DOJ solicited comments on whether to extend the regulations to analog movies, it deferred that issue for future rulemaking.  The final rule cites statistics submitted by the National Association of Theater Owners (NATO) that 98 percent of indoor auditoriums in the U.S. have already been converted from analog to digital.

The final rule applies to theaters and other facilities that are used primarily to show movies for a fee.  Thus, museums, hotels, cruise ships and other public accommodations that show movies to patrons, but not as a primary means of their business, are excluded.

The new regulations apply to all covered theaters, regardless of seating capacity or the number of screens.  Thus, a small community theater with one or two screens will be subject to the same regulations as a megaplex with over 16 screens.  The final rule does not apply to drive-ins.

  1. Theaters Must Have a Minimum Number of Closed Captioning Devices Based on the Number of Screens

Closed captioning devices provide written text of movie dialogue and sounds (e.g. music, sound effects, identification of which character is speaking) to an individual patron at his or her seat.  Theaters must have a sufficient number of devices on hand based on the number of screens exhibiting digital movies, as opposed to total theater seating capacity as suggested in the NPRM.  The requirements are as follows:

Number of Theater Auditoriums Exhibiting Digital Movies Minimum Required Number of Captioning Devices
1 4
2-7 6
8-15 8
16+ 12

The DOJ commentary cites comments and research that the scoping proposed in the NPRM would have substantially exceeded actual demand for this equipment.

In addition, the final rule provides that theaters can utilize open captioning (where captioning can be viewed by everyone in the auditorium) as an alternative means of complying, but are not required to do so.  To satisfy the requirements with open captioning, the theater must either display open captions at all showings, or activate open captions whenever they are requested by an individual who is deaf or hard of hearing before the movie starts.

  1. Theaters Must Have One Audio Description Device for Every Two Screens

In addition to captioning, the final rule also requires that theaters are equipped with audio description devices that provide spoken narration of key visual elements of a movie, such as the actions, settings, facial expressions, costumes and scene changes.

Theaters must have at least one audio description device for every two screens, but theaters with only one screen must have at least two devices.  DOJ reduced the scoping requirement proposed in the NPRM of one audio description device per screen.

This requirement may be satisfied with existing assistive listening receivers (which amplify sound rather than narrate events that occur on-screen) that theaters are already required to provide, but only if these devices have a minimum of two channels available for sound transmission.

  1. Theaters Must Show Movies with Captioning and Audio Description if Available

If a theater exhibits a movie that is distributed with closed captioning and/or audio description features, then the theater must exhibit that version of the movie at all scheduled showtimes.  DOJ’s commentary provides that this requirement neither prohibits theaters from exhibiting a movie not distributed with captioning or audio description, nor requires that they independently add such features.

  1. Closed Captioning Devices Must Satisfy Performance Criteria

The final rule adopted the performance standards for closed captioning devices proposed in the NPRM, which many industry commenters criticized as vague and subjective.

The new regulations will require that closed captioning devices must:

  • Be properly maintained;
  • Be easily usable by patrons;
  • Be adjustable so that the captions can be viewed as if they are on or near the movie screen; and
  • Provide clear, sharp images in order to ensure the readability of captions.

It is not clear what constitutes an “easily usable” device, for example, or the font size or resolution that provides sufficiently “clear, sharp images” to satisfy these requirements.  These uncertainties may lead to future litigation.  In its commentary, DOJ did note that performance standards for captioning devices are subject to existing regulations that permit, with respect to the maintenance of accessible features, “isolated or temporary interruptions in service or access due to maintenance or repairs.”  28 C.F.R. §  36.211.

  1. Other Technologies May be an Acceptable Substitute for Closed Captioning

Theaters may use technologies other than closed captioning, as long as the technology used provides communication that is as effective as that provided to patrons without disabilities.

  1. Digital Theaters Must Comply with Captioning and Audio Description Requirements by June 2, 2018

Theaters showing digital movies on December 2, 2016 must comply with the final rule’s requirement to provide closed movie captioning and audio description in such auditoriums by June 2, 2018.  If a theater converts an auditorium from an analog projection system to a system that it allows it show digital movies after December 2, 2016, then it must comply with the final rule’s requirement to provide closed movie captioning and audio description in such auditoriums by December 2, 2018, or within 6 months of that auditorium’s complete installation of a digital projection system, whichever is later.  DOJ ultimately rejected the aggressive, 6 month timeframe for compliance proposed in the NPRM.

  1. Theaters Must Have Staff On-Site Who Can Locate, Operate, and Troubleshoot Existing Assistive Equipment by January 17, 2017

At least one person (presumably an employee) who can locate, operate, and address problems with all captioning and audio description equipment must be at the theater at all times.  This employee must also be able to communicate effectively with customers with disabilities regarding the uses of, and potential problems with, captioning and audio description devices.  The final rule also requires that theater staff “quickly activate the equipment and any other ancillary systems,” although neither the regulation nor the commentary address what “quickly” means in this context.

DOJ rejected the suggestion from some industry commenters that the regulations should expressly provide that theaters should not be required to hire sign language interpreters to communicate with deaf or hard of hearing patrons regarding this equipment.  The agency did, however, note in its commentary that effective communication concerning these devices would not require a sign language interpreter, but instead “can easily be provided through signage, instructional guides, or written notes.”

In adopting these personnel requirements, DOJ also apparently relied on comments from individuals with disabilities and advocacy groups who reported that theater staff are generally not properly trained in the use, operation and maintenance of existing assistive equipment.  DOJ declined to impose an explicit employee training requirement in the final rule.

Significantly, theaters that already exhibit digital movies must comply with these requirements by the effective date of January 17, 2017.

  1. Theaters Must Comply with New Advertising Requirements by January 17, 2017

As with the proposed rule in the NPRM, the final rule requires that a theater’s communications and advertisements intended inform potential patrons of movie showings and times must indicate whether each movie is available with captioning and/or audio description.  Although the proposed rule would have imposed this requirement on practically all forms of advertisements, the final rule applies to the box office and other ticketing locations, websites and mobile apps, newspapers and over the telephone.  It does not apply to third party ticket providers or websites if they are not part of, or subject to, the control of the public accommodation.

Theaters that already provide captioning and audio description services must comply with these advertising requirements by the effective date of the regulations.

***

We are continuing to evaluate the final rule and its potential impact on public accommodations.  It is apparent, however, that the regulations, set to take effect three days before the President-elect’s inauguration, will enhance the accessibility of moviegoing in the United States, while also imposing additional costs on the industry in the form of new equipment, employee training, advertising and future litigation.

Stay tuned for further analysis and updates on these new regulations.

Edited by Minh Vu.

Seyfarth Synopsis:  DOJ announces that proposed rules for state and local government websites will issue July 2017.

The DOJ announced last week in the federal government’s Unified Agenda that it will be issuing a proposed rule for state and government websites in July 2017.  The Unified Agenda provided no date for the proposed rule for public accommodations websites, however.  As we reported previously in May the DOJ had issued a Supplemental Advanced Notice of Proposed Rulemaking (SANPRM) for the state and local website rulemaking  in which it stated that the results of that rulemaking would “facilitate the creation of an infrastructure for web accessibility that will be very important in the Department’s preparation of the Title III Notice of Proposed Rulemaking on Web site accessibility of public accommodations.”   The SANPRM posed more than 120 questions for public comment, the period for which closed on October 7.

Given the many delays in the state and local government website rulemaking which started in 2010, we have little confidence that a proposed rule will really issue in July 2017.  Furthermore, the projected July 2017 date was likely set before the election which injects additional uncertainly for the reasons we discussed in a prior post.

Edited by Kristina Launey.

This morning, on Global Accessibility Awareness Day, DOJ participated by issuing its Spring 2016 unified agenda, including upcoming regulatory actions on web accessibility and movie captioning.

Click on the links to the right in the bullets below for the lowdown on each rule, but here are a few highlights:

AA65: State and Local Government web accessibility regulations.  No need to follow this like a bloodhound; the DOJ just issued a Supplemental Advanced Notice of Proposed Rulemaking, which we reported here.  Watch this space for an imminent detailed blog on the SANPRM – so you don’t have to slog through the 30 pages of small print.  The comment period closes in August 2016, and the NPRM is due out in July 2017, with comment period on the NPRM to end in September 2017.

AA60: Regulation to reflect statutory amendments to the definition of disability applicable to section 504 of the Rehabilitation Act. NPRM due in July 2016, with final action expected by years’ end.

AA59:  Regulations to clarify terms within the definition of disability and to establish standards that must be applied to determine if a person has a covered disability under Title II and Title III, due to statutory changes made in the ADA Amendments Act of 2008. Final rule due May 2016 (like, now!)

AA63:  Movie Captioning and Audio Description regulations.  The final rule is due July 2016; read our take on these regs here.

  • DOJ/CRT – Prerule Stage – Nondiscrimination on the Basis of Disability: Accessibility of Web Information and Services of State and Local Governments: 1190-AA65
  • DOJ/CRT – Proposed Rule Stage – Implementation of the ADA Amendments Act of 2008 (Section 504 of the Rehabilitation Act of 1973): 1190-AA60
  • DOJ/CRT – Final Rule Stage – Implementation of the ADA Amendments Act of 2008 (Title II and Title III of the ADA): 1190-AA59
  • DOJ/CRT – Final Rule Stage – Nondiscrimination on the Basis of Disability; Movie Captioning and Audio Description: 1190-AA63

So it’s possible we could have several interesting things happen in 2016.  Do we believe that everything will come out when DOJ says it will?  No.  No, we do not, if history is any indication.  Will we (Susan Ryan) check these diligently every day like our old friend Sisyphus with his boulder?  Yes.  Yes, she will.

Oh, and in case you remember that old chestnut AA61, the Title III almost-proposed web regulations (which we’ve reported on ad nauseum), that apparently does not merit an entry in the Unified Agenda.  The focus is all Title II (AA65) now.  There’s a mention of the Title III almost-proposed regulations in the AA65 write-up, but no indication of any status.

Stay tuned… and if you’re not taking advantage of any of the great information provided by various entities as part of Global Accessibility Awareness Day – all about digital (web, software, mobile, etc.) accessibility and users with different disabilities, check it out: http://www.globalaccessibilityawarenessday.org/!