UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

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SUSAN MEINEKER, et al., )

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Plaintiffs, )

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V. ) Civil No. 1:98-CV-1526

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HOYTS CINEMAS CORPORATION, ) Return Date: Dec. 18, 2003

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Defendant. )

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# REPLY MEMORANDUM IN SUPPORT OF

**[UNITED STATES' MOTION TO INTERVENE]{.underline}**

In defendant Hoyts Cinemas Corporation's ("Hoyts") memorandum opposing
the United States' motion to intervene, Hoyts introduces two new matters
that warrant separate reply in this action. [See]{.underline} Hoyts
Cinemas Corporation's Memorandum of Law In Opposition to United States'
Motion to Intervene (served Dec. 3, 2003) ("Hoyts Opp. Mem."). First,
Hoyts argues -- based on newly-submitted evidence -- that neither Regal
Entertainment Group nor Regal Cinemas, Inc. \[hereinafter collectively
referred to as "Regal"\] are properly named as party-defendants in the
United States' proposed complaint-in-intervention. [See]{.underline}
Hoyts Opp. Mem. at 14-16. Second, Hoyts also urges this Court to reject
that portion of the United States' prayer for relief seeking civil
penalties and compensatory damages because it purportedly would
represent an unwarranted "attempt to expand the scope of these
proceedings at this late date." Hoyts Opp. Mem. at 13. Neither of
Hoyts's arguments, however, provide a legal basis for this Court to
strike any portion of the United States' proposed
complaint-in-intervention. Indeed, Hoyts's attempts to dictate the terms
for the United States' entry as a plaintiff-intervenor in these remand
proceedings appears to be little more than an impermissible "pre-emptive
strike" on the United States' complaint.

**1. *The Regal entities are properly named as party-defendants in the
United States' proposed complaint*.** Hoyts states that it "opposes" the
naming of both Regal Entertainment Group and Regal Cinemas, Inc. as
co-defendants in the United States' proposed complaint-in-intervention
because the Regal entities' acquisition of Hoyts in March 2003 occurred
years after the Crossgates Mall stadium-style theater complex opened for
business and after the district court litigation had concluded.
[See]{.underline} Hoyts. Opp. Mem. at 14-16. In addition, Hoyts submits
an affidavit from the Vice President-HR Counsel for Regal Entertainment
Group asserting that Hoyts still "owns" the Crossgates Mall complex
irrespective of the fact that it is now being operated under the Regal
brand name. [See]{.underline} Affidavit of Raymond L. Smith Jr. (served
Dec. 3, 2003) (Docket \# 97).

Hoyts's arguments, however, miss the mark. First, as with any putative
defendant about to be sued by a plaintiff in a new action, Hoyts has no
standing to tailor the terms of the United States' intervention
complaint according to its own corporate preferences. Hoyts (or Regal)
may, for example, subsequently elect to deny the allegations in the
complaint, move to dismiss all or part of the complaint, or file a
motion for summary judgment. But what Hoyts cannot do is preemptively
seek to strike portions of the United States' complaint-in-intervention
prior to its filing.

Second, there is ample legal and factual basis for naming the Regal
entities as party-defendants in this action. As the Smith affidavit
acknowledges, both Regal Entertainment Group and Regal Cinemas did, in
fact, acquire certain Hoyts assets \-- including the Crossgates Mall
stadium-style theater complex \-- in spring 2003. [See]{.underline}
Smith Aff. ¶¶ 2; [see]{.underline} [also]{.underline} Supplementary
Affidavit of Gretchen E. Jacobs In Further Support of United States'
Motion to Intervene (served Dec. 10, 2003) ("Supp. Jacobs Aff."), Ex. 2,
pp. 1-2 (SEC Form 8-K filed by Regal Entertainment Group disclosing
acquisition of certain Hoyts theater complexes including the Crossgates
Mall complex). Mr. Smith also acknowledges that the Crossgates Mall
complex is being operated on the same property under the Regal brand
name. [Id]{.underline}. at ¶ 3. Furthermore, it would strain credulity
to suggest that Regal lacked knowledge of either the instant
[Meineker]{.underline} litigation (which was filed in 1998) or the
[Hoyts]{.underline} action in Massachusetts (which was filed in December
2000) prior to acquiring Hoyts in a multi-million dollar transaction in
March 2003. Finally, public records suggest that Hoyts has been
sufficiently integrated into Regal's operations such that its profits,
losses, debts, and capital expenditures are passed through to, and
reported by, the Regal Entertainment Group. [See]{.underline},
[e.g]{.underline}., Supp. Jacobs Aff., Ex. 1, pp. 3-4, 6-7, 9
(transcript of Regal teleconference discussing pending acquisition of
Hoyts by Regal and noting that "these superior \[Hoyts\] assets . . .
will be accretive to \[Regal's\] cash flow and earnings"), Ex. 3, pp. 6,
16 (transcript of conference call regarding Regal's Third-Quarter (2003)
earnings), Ex. 4, pp. 5-6, 12 (Regal Entertainment Group's SEC Form 10-Q
detailing Hoyts acquisition and noting that "the results of operations
of the acquired Hoyts theater locations have been included in the
accompanying \[Regal\] financial statements for the period subsequent to
the acquisition date"), Ex. 5, p. 5 (Regal Entertainment Group's 2002-03
annual report).

The foregoing considerations thus provide a sound legal and factual
basis for naming the Regal entities as co-defendants in the United
States' ADA-based discrimination complaint. [See]{.underline},
[e.g]{.underline}., [McKee v. American Transfer and
Storage]{.underline}, 946 F. Supp. 485, 487-88 (N.D. Tex. 1996)
(recognizing liability of successor corporations in ADA actions when,
[inter]{.underline} [alia]{.underline}, successor corporation had notice
of pending litigation, the predecessor corporation may no longer be able
to provide complete relief, and the successor corporation continues to
operate the business); [see]{.underline} [also Golden State Bottling
Co., Inc., v. National Labor Relations Board]{.underline}, 414 U.S. 168,
180-86, 94 S. Ct. 414, 423-26 (1973) (affirming Board's finding of
successor liability in employment discrimination action); [Wheeler v.
Snyder Buick, Inc.]{.underline}, 794 F.2d 1228, 1235-27 (7th Cir. 1986)
(noting "liberalization" of common law successor liability principles in
context of federal discrimination actions); [E.E.O.C. v. MacMillan
Bloedel Containers, Inc.]{.underline}, 503 F.2d 1086, 1089-92 (6th Cir.
1974) (recognizing applicability of successor liability in Title
VII-based actions); [E.E.O.C. v. SWP, Inc.]{.underline}, 153 F. Supp. 2d
911, 917-18 (N.D. Ind. 2001) (finding successor liability in employment
actions "broader" than either common law succession doctrine or related
exceptions); [E.E.O.C. v. Sage Realty Corp.]{.underline}, 507 F. Supp.
599, 611-13 (S.D.N.Y. 1981) (holding successor cleaning contractor
jointly and severally liable for discriminatory acts of predecessor
cleaning contractor); Fed. R. Civ. P. 25(c) (authorizing addition of
parties "in any case of transfer of interest" during pendency of
litigation).

**2. *The United States' prayer for relief properly includes requests
for civil penalties and compensatory damages*.** Hoyts's opposition
memorandum characterizes the United States' prayer for relief as
improperly expanding this litigation beyond the scope of the private
plaintiffs' original complaint. [See]{.underline} Hoyts Opp. Mem. at
12-13. Again, Hoyts's claim is meritless. Since only the United States
is empowered to file Title III-based enforcement actions seeking civil
penalties or damages, [compare]{.underline}, [e.g]{.underline}., 42
U.S.C. § 12188(a) (remedies and procedures governing private Title III
actions) [with]{.underline} [id]{.underline}. at § 12188(b) (setting
forth the Attorney General's enforcement authority), it is axiomatic
that entry of the United States into a private action will necessarily
"expand" the scope of the litigation in terms of the remedial options
available to the court. But any such "expansion" of remedies is plainly
warranted by Congress' express authorization for the Attorney General to
seek such remedies in enforcement actions. In addition, the prayer for
relief in the United States' proposed complaint-in-intervention in this
action merely mirrors the relief sought by the United States in the
[Hoyts]{.underline} litigation pending in the District of Massachusetts.
[Compare]{.underline}, [e.g]{.underline}., Affidavit of Michael J.
Malone (filed Oct. 27, 2003), Ex. C, pp. 8-9 (Hoyts complaint)
[with]{.underline} Affidavit of Gretchen E. Jacobs In Support of United
States' Motion to Intervene (filed Nov. 12, 2003), Ex. 1, pp. 8-9
(proposed complaint-in-intervention). Finally, it bears noting that the
United States has only sought to intervene in one other private
stadium-style theater action, [Lonberg v. Sanborn Theaters,
Inc.]{.underline}, C.A. No. CV-97-6598-AHM (BQRx) (C.D. Cal.). In
[Lonberg]{.underline}, the district court not only granted the United
States' intervention request, but also permitted filing of the United
States' proposed complaint-in-intervention which -- as here -- sought
civil penalties and compensatory damages against the private theater
defendants. [See]{.underline} Supp. Jacobs Aff., Exs. 6 - 7 (copies of
[Lonberg]{.underline} intervention complaint and PACER docket sheet).

[CONCLUSION]{.underline}

For the foregoing reasons, the Court should (i) grant the United States'
intervention motion and (ii) authorize the filing of the United States'
proposed complaint-in-intervention in its entirety.

Dated: December 10, 2003

Respectfully submitted,

R. ALEXANDER ACOSTA

Assistant Attorney General

Civil Rights Division

GLENN T. SUDDABY

United States Attorney

JOHN L. WODATCH, Chief

PHILIP L. BREEN, Special Legal Counsel

RENEE M. WOHLENHAUS, Deputy Chief

Disability Rights Section

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GRETCHEN E. JACOBS

PHYLLIS M. COHEN

Trial Attorney

Disability Rights Section

Civil Rights Division

U.S. Department of Justice

950 Pennsylvania Avenue, N.W.

1425 N.Y. Avenue Building

Washington, D.C. 20530

Telephone: (202) 514-9584

Facsimile: (202) 616-6862

gretchen.jacobs@usdoj.gov

Counsel for Plaintiff-Intervenor

> United States of America

[CERTIFICATE OF SERVICE]{.underline}

I hereby certify that on this \_\_ day of December, 2003, true and
correct copies of the Reply Memorandum In Support of United States'
Motion to Intervene were served by Federal Express, postage pre-paid, on
the following parties:

Timothy A. Clune

Disability Advocates, Inc.

5 Clinton Square - 3rd Floor

Albany, NY 12207-2201

Michael J. Malone

Patricia A. Griffin

King & Spaulding

1185 Avenue of the Americas

New York, NY 10036-4003

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Gretchen E. Jacobs