appellee owns and operates a chain of hooters restaurants the basis of our complaint is that hooters website is not compatible with screen reader software and therefore discriminates against vision impaired disabled individuals  the defendant doesn't contend that its website is compliant instead it filed a motion to dismiss arguing that had been sued previously in the case of gomez versus hooters by another disabled individual and entered into a case referred to in its public announcement two of those cases are consistent with our arguments in the third one is distinguishable our first point is that what relief could a court supply what redress could our courts apply here that effectively you haven't already got who does is already abandon the website and started down the road of putting in a new one to correct the problem that's really what you wanted to write yes first the words you would have the judge say in this case they've got to do here what they've already agreed to do there i would disagree all two of the cases cited by this code just tell me what relief what i want you to tell me with is district judge has to fashion relief for the claim that you make strikes me the relief that you want is the relief that's already provided admittedly in a different case with different parties weir's is that right or wrong it's wrong ok tell why isn't your argument that you won't enter har entitled to an injunction and there is no injunction in the other case well we do we do i mean we do seek an injunction the question is whether the prior seldom agree met with another with another plane if that was not adopted by the court not pursuant to a consent we can preclude our party's rights our client's rights the worse also the relief rights to what right and injunction we are sending you the relief that you seek that you say you are entitled to under the act you're not just entitled to have them do that you're entitled to have a court ordered them to do that if they haven't already done it and everybody agrees they haven't already done it why isn't it that simple it is that simple we seek injunctive or we seek injunctive relief to bring the website into compliance with  g which is the recognized industry standard we have to defend it continue to maintain its website in compliance with with that standard and it we seek an agreement we seek not and agreement but injunction that the plaintiffs can enforce subsequently  if the defendant doesn't comply rather than have to rely on a prior another disabled person two to enforce his rights under a confidential suddenly agreement that in which that court didn't even  confidential about it any longer no longer but it was filed in the gut it was never filed in the original domus case nor did the court which doesn't really matter the parties didn't even request it the court dangerous direction to enforce it so would be extremely difficult to enforce they would have to go to sleep you have no work no remedy you can't enforce anything now we can notice backs out your stock if hooters back so almost doesn't pursue his remedies your stock not only that well agreed but not only that but the prior sort of agreement expires this september so after september of this year who to me ask you this question from the record evidence that was presented in this case before judge scola was there not record its website is compliant well it doesn't you couldn't it wouldn't happen overnight it would they took the original website off and they started with a new one and they i thought that they took substantial steps toward the completion of that product it's just that it didn't it wasn't complete yet i might have i misunderstood that to my knowledge they haven't complied they don't i understand there hasn't been a complete resolution of the problem that's not my question why is there not know what do substantial steps main did they say we've done this we've done that we paid far the people hadn't got around to it yet it's impossible to do what what did they say the problem was you talking about  promised to do it to do it and september thirty twenty sixteen been a year and a half what did they say the problem was in that affidavit i don't recall  preparation for this hearing you should have i should you are responsible for knowing everything in this record and if you don't i don't see how you can do your job as an orlando i mean was it not important enough to you well  only agreement in that case didn't actually require that the defendant i'm not talking about the some one agreement in that case i'm talking about the record in this case which is rather slam it's not that big a record yes i i will have to rely on your opposing counsel let me tell you why i raise the question when i look to judge scholes order granting the motion to dismiss on lewdness grounds suit this plan is in court in accordance with a binding settlement agreement ended in two as a result of the gomez litigation hanes does not dispute that huet is in compliance with its obligations under the agreement  and this is the critical language for my question and that hooter's has already complied with the first phase of the remediation i'm not sure i know what that means and i'm not sure i know whether or what record evidence supports it but the district court seems to be finding that hooter's car compliance included the completion of the first phase of remediation suggesting to me that they took some steps although they weren't that's to sara lee complete what's that first step toward remediation and what record evidence is there that would be paragraph five of the sun agreement which simply states within six months from the data disagreement to september of sixteen if any shell include inaccessibility notice on its website that's the first phase the second phase wasn't so the first phase was what but how do we know that that was actually accomplished and noticed i believe today stated that there was a notice submitted in the gomez case that was filed as part of the record evidence in this case i mean is that what i just i'm just looking for you to help me factually what happened here that would be a notice on its website and that's what the district court here is making reference to in the first i believe app the remediation i believe so the second phase wasn't required until after the district court already ruled the second phase was that in september of two thousand and seventeen hooters would bring its website into compliance with the agreement but the agreement doesn't require actual compliance with the ca g is simply says that requires that hooters improve the excess ability of its website and contains equivocal equivocations allow which are vague and illusory such as unless such action would fundamentally alter the nature of goods services facilities privileges advantages or accommodations being offered or would result in  burden this borrow some language from other parts of the statute that aren't even arguably applicable to websites which were constructed many years after the act became effective that would be in paragraph six so there's nothing in the agreement that requires that hooters actually comply with the w c a j just simply that it still vaguely improved accessibility of the us portion of its website know the other actor to the action below the gomez action was not a certified class action if hooters had wanted to be clued the rights of unrelated third parties then it should've employed the federal rules of civil procedure for virtual representation doctrine would recognize a common law kind of class action shorn of class action protections in the case below the district the gomez court didn't even retain jurisdiction let me ask a different question did  does ever come in in this case and say to you will settle this case same terms we settle goma's we actually offer that as an offer of compromise hooter's submitted our email in the offer of compromise to the district court and that was that was essentially that our offer of compromise was formed a basis for the district court's opinion that hooter's settlement agreement actually resolved all of our claims when it did we had also requested that in addition that our plaintiff the no i understand that you are for did they agree no no they filed and that's the point i'm trying to get at how they did no settlement agreement it's been dismissed the lawsuits been dismissed it expires in six months anyway other web sites have this and this one doesn't i don't understand why they don't have a lot of controversy against it would have a lot of controversy against my client not at the time we filed a motion to dismiss and they certainly don't have one today and the reason for that is this case is quite similar to one case to some reason they don't is that you've agreed to provide relief similar to the relief they're seeking the difference your honor is that we're not agreeing to agree to provide relief we have already provided the relief that you know you haven't your website isn't compliant unless you've made a compliant like the other development the other case yesterday we have made a compliant by the deadline that was required number one and number no no i'm talking about at the time the district court dismiss compliant that's not entirely accurate so let me ask you this compliant with what are you talking about that's an excellent point you're right there is no current a d h standard requiring websites what standard they have to comply do it doesn't exist that's not ok he's asking for a particular the weekends are of compliance correct and if you're saying we don't have to do that and we've got a very of controversy if you're saying we do have to do that then agree with him get an injunction against you or consent decree for you to do it and we're out of here yes judge we've we've done it that's all you say we've done it i'm looking at the trial judge's order in this case judge scola doesn't say you've done it in the sense of completing it what judge skoal overwrites is that you've complied with the first phase of the remediation no more no less as of the status and based on this record isn't that correct as of a date we filed a motion to  based on the record we have in front of us and all we have is the first phase of remediation complete no more no less is that correct it's not correct because we had more we had we had so scola got it wrong no scola got it right to that we had begun the process of implementation what judge school or did not say is although he had the website in front of him we changed the website right so on date  x when mr goh masoud we had one website that website doesn't exist anymore that website also didn't exist as of the date the judge school of the website that you have this afternoon yes if i go in there and blond clerk and i pull up that website and asked the law clerk let's see how much an order french fries cost can i click on that website and the provides lawsuit here is that he's a screen reader that he's alleging the website is not compatible with so the answer is if you're local or was blindfolded it was using a screen reader he can access and determine whatever the price of  find that in this record see because that's not what judge scola said not even close to what he said well because judge school looked at the fact that i understand why he did what he did i'm asking you and judge current has asked you can you point me to a record citation that says in words of substance what you've just told judge current we provided the website itself to the court which the court is allowed to  judicial notice of and we provided to this court i don't know how it's allowed to take judicial notice of it i don't know that if the facts are well known in the community and to the bench and bar of that there is no reasonable dispute about it you see i would take a the notice of the fact that the sun rose in miami this morning on the eleventh day of april at six forty two i would not normally take  notice of whether or not the website was fully compliant or not and i don't have any statement from the district court that it was to the contrary i have a statement from the district court that you've stepped down the road and you've finished the first phase of remediation no more no less and that's what the district court finds if that's a finding of fact ok and i'm not saying you take judicial notice that the website is complying to judicial notice is that the website was changed right so that's that's you began the process of changing not that it was complete let me put the question in a different way let's just to so suppose that's the state of the facts we have in front of us ok the district court said they began compliance they took a substantial step they did the first step of remediation that's it that's what's done he says that's enough i assume that's the state of the record what remedy does haynes have if hooters backs off and says you know what we're not obliged to do this because we don't read the law as compelling it and we're not going to do it anymore does he have any remedy you know what's his remedy if we don't how can he enforce the agreement in the gomez case not being a party to it he's not a third party beneficiary what standing or right of access would he have to the gomez lawsuit well given the fact that we actually began implementing remediation before we were sued well we asked the trial court was to hold that the case was moot until the end of the remediation period that's different but the district court dismissed it is moot when it's not if we had not complied or if the remediation period ended and we didn't change the website we didn't say the judge scola stay the case we're not complete we will be complete once we're complete the story's over there no relief you can provide then all right you didn't do that did you i'll tell you why you didn't do that i did not and also explain what the what you did do was move to dismiss correct that's exactly and he granted it  fact do what we said we would which we did do he can sue us why should he have to start again start again from we're he's in the same place he was when he started no he isn't he's out of court he doesn't have a pending complaint assuming he has a pending complain you can always say i dismissed somebody and if we don't do better in the future then sue us again the requirement that there be a live case or controversy means that the court has to be able to order something effective and here's to my mind the critical factor here and this is not disputed this is an undisputed fact that the court found mister  represented in this is in the record the following he said i would agree to the remedial measures and timing for revising the website that are in the goma settlement yeah i agree on everything you've done under them in my case but you didn't enter  in his case therefore he has no right to seek enforcement of any of that well then this opens up a question to does every single eighty eight plaintive can and this is my example that i put in motion i think it's a critical policy point assuming that this was a service counter in front of your honor's and it was too high or too look ok and the courthouse is sued and they make a plan to remediate and to make it to the correct type it takes more than a day to do it you got to get a permit here i got that tractors ok everybody keeps you and the answer is absolutely they can and you just stack em up and after the relief his as been entered and they are truly moot because it's been lowered then the district court deals with those others dismisses them as moot and ona's attorneys fees because under the circumstance of the case they didn't do anything but that's not what happened in this case i understand this is about attorney's fees and at that at its core but you can't call something moot just to handle that problem when it's not me that's a jurisdictional doctrine and let me ask you one other thing regardless of what he offered as a matter of compromise and which was rejected elf where for clause f that this court enter nor did directing defendant to continually update and maintain his website to ensure that it remained fully accessible to and usable by visually impaired individuals there's nothing in the agreement about that and your goal may as agreement well there's nothing he's asking for something that you haven't agreed to even if he was somehow balland not to duplicate the relief in the gomez agreement that that's not correct for two reasons number one we agreed to change the website i'm not saying change an order directing defendant to continually update and maintain its website to ensure that it remains fully accessible you could make it fully accessible next month and then two years from now it's no longer fully accessible for whatever reason or whatever change in the internet or deterioration of your website or whatever he's asking for relief that you didn't even agree to provide and gomez even if he were bound  number one that assumes there's going to be updates or changes and that's no it just it just assumes that he's asking the court to order you to make any should they be necessary we see this all the time ok but he didn't ask for that when we had when he responded to me it was an all for of what he would settle for and you said no thank you well you close that door now he's here on his complaint and the order dismissing it as moment the city of dallas case which we were asked to be prepared to discuss addresses that very issue and says that if you've received the relief you want by virtue of a third party settlement agreement because that's what this is we have a third party everyone's looking at gomez that he can't enforce the agreement to go it but gomez will force that agreement they were forced necessarily  know go to go mess gomez comes to you you know we've got difficulties this slow on our website down we sympathize with you with fifty thousand dollars mike you give us a relief and go away a relation go away show but pay my lawyer you pays law you pay him he's gone he doesn't enforce the agreement they're out of court have to start all over again not in any functionally different spot that he was at the time this case was dismissed yes yes the time this case was dismissed he's in court he's no longer in court because it was dismissed but he will be if he says this again  there is a current barrier let me ask the question in a different way and says that hooters failed to satisfy its burden of proving moodiness pursuant to the doctrine of voluntary secession when we've looked at this question of voluntary secession particularly with a private party to determine whether or not a private actor will reneged on go back and do again even assuming that he stopped doing it we ask three questions question one whether the challenge conduct was isolated or unintentional as opposed to being ongoing and deliberate i take it you would agree that this conduct was neither isolated nor unintentional but rather was ongoing and deliberate how can it be intentional when you are you intentionally had a website that performed in a certain way did certain things and didn't do other things yes but that website you think you've complied with that  here's the difference from chile right and from other cases in those cases you have the black and white excess ability guidelines right the accessibility guidelines are very clear the grab bars got to be this hard not this high toilets got to be in this place and not that place they ran past to be this slope and not that slow it's all very simple you know you follow it or you don't and if i understand that it's a work in progress which is all that you're really saying the third part of the test is whether the defendant acknowledges liability in the in the case and says yeah what we did we did was wrong and we ain't going to do it again in this case if i read your pleadings correctly you say quite the contrary you're not renouncing say you said we did what we had every right to do we don't have to change a whit we doing it out of the goodness of our heart not because the law requires us to do that isn't that right does that overstate your position i think i think it does become how does it overstate your position is it your position that you've acknowledged liability here or did you not say bricks and mortar are different from the website and therefore because this isn't bricks and mortar we obliged i think your honour's making a good point and what i could have done if your honor with permission to and i thought we should take your time and answer my question we could have moved to dismiss an argue that websites are not covered by the a t f and there's there's litigation all around the country on that very question and then that's a question that's exactly what your position is absolutely not we never took that position that's the reason i think that's why judge scola was moved by our genuineness when we said there was  acknowledged liability before jets go we what we did was the you did or you didn't you said yeah we're liable and which changing it or we're not liable but would changing it anyway because we think it's good business practice it's the wise thing to do we said we're not going to argue whether or not it's covered by the you think that's the same thing as an acknowledgement of liability as we've interpreted the voluntary secession doctrine well as da applies to your web website no court has yet determined that not in the know that but you could acknowledge it you denied well you're in your agreement you specifically said defendant disputes age to do anything to your website that's what you said in the agreement i just read to you i agree ok you deny law billeted under the a da for anything about your website does that factor in your hearts against you counsel i'm simply saying as we've interpreted voluntary secession we look at three things one whether it's ongoing as opposed to a singular isolated act and plainly the website was ongoing as opposed to a single isolated act we look at whether or not there was an acknowledgment of liability under the  that one the only debatable one is the second one whether the defendants a session of the offending conduct was motivated by a genuine change of heart or mere avoidance of litigation and that one is debatable because you had a change of heart but only in the course of litigation but i'll be it it wasn't haynes litigation it was gone as is litigation so when i look at these factors it looks to me that you can even meet your burden under the voluntary secession doctrine one of mine missing there do you think number one you're assuming this is a voluntary secession case and under the city of dallas case  because we did it under compulsion of an forcible settlement agreement with enforcement mechanisms and the court city of dallas held based on two decisions out of the eighth circuit and the second circuit held that there is no voluntary secession when it doesn't occur then let me ask just one final question it's been asked before but i want to be sure that i understand your answer to the question should hooters decide they no longer wish to make this accommodation on their website and you say we can legally do that at least in compliance with the  doesn't apply here should hooters decide to do that and should go mess for one reason or another not go to court to enforce that agreement he dies or is judge car but they pay him off as haynes have any remedy other than suing again starting over can he use the you that the case could not by definition be moot well that but the question is what is the effect of relief that was this question you started the oral argument with when you asked mr bacon what is it that you want the court to order do you simply want the court to order put the website into compliance which you all agree is already being done is that what you want do we have courts all furred to do that you rejected it now you can say we take that offer and ride it into his complaint the complaint ask for additional relief he offered to settle for less you rejected him that's that's not even first year law school that is just first year common sense you can't reject on offer to settle for less and then argue at all as he's entitle to if you lose is the last we rejected their requests the demand for attorney's fees we didn't minutes just a few points your honor let me ask you one preliminary question does the record reflect that they fully complied and changed their website and brought it up to speed now or not i'm sorry the last question or not doesn't show that it hasn't worked it does not reflect that it reflects a first step and only a first step the first step in only a first step what does it not reflect doesn't reflect that it brought it into compliance with the second phase of the of agreement and even the second phase of the sudden agreement would not have or would not have brought into compliance with the industry standard which is what was the second stage of the remediation the second stage remediation sent out a paragraph five simply says well it recognizes the double c a g and opposing counsel complaint argued that that vegan is not is not a set is say for example the measurements of grab bars which can be easily ascertained and measured whereas he complain improve accessibility well they could use it as a guideline to improve excess ability if all they do is make the price of french fries readable on screen reader software such as jobs and if they do nothing else they have complied technically with this with this sudden agreement which for which provides for far less than complete belief i mean there's judge bolitho case required the defendant and we were to reverse and remand and say the case is justiciable it went back to the district judge and they were to come back and say well judge stay the case we need not spend any money or time on discovery we believe we're going to be able to show complete compliance in the other case which i think they will say move stay would you object to is that i'm just curious we would object to a stay on several grounds first of all they were supposed to have been compliant with the prior settlement agreement as of september of last year and they weren't so is that your and they want if they have is it your view that they weren't compliant it's my view they're not in compliance with the industry standard if they if they simply want the industry standard we're tom of a simple question well the eighty eight doesn't have any regulations i know but you have a before you sit down mr bacon i want to ask you to do me a favor and read an opinion the judge johnson wrote if you've got a pin i'll give you the cite to it's and if not you can always get it off the recording one f second seven thirty four still same case six eighty one half second seven thirty four about the responsibility of counsel representing appellant and i happily about the record in the lower court