locally and regionally as the favorite fabulous fox theater we are here today to talk about the americans with disabilities act it's broad it's good it serves a very useful purpose growing up mother my mother was a death education teacher i know a little bit of sign language i do training on sign language and other accommodations with regard to disability and today we're talking about what are the parameters what are the requirements of the americans with disabilities act and specifically with regard to public accommodations and their customers patrons clients patients and others who may be using their services live action theater not a movie theater doesn't play digital movies one of the things too before i forget plaintiffs point out to this court that the department of justice has specifically provided guidance and regulations with regard to movie theaters that provide digital productions of movies in those regulations and in that guidance department of justice requires and lays out the rules for movie theaters to provide captioning at every showing of the movie if it's digitally produced by the studios and available to movie theaters that argument actually cuts against plaintiffs in this case the department of justice has not said and could have said in that guidance or guidelines or those regulations that live action theaters have to provide captioning at every single performance this court as well as the supreme court has made clear that the a d a s broad requirements for reasonable accommodation and for effective communication in this situation requires an analysis of whether the individuals are provided meaningful access that's an important phrase this court just last year in the durans case made very clear that meaningful access is the test and the analysis that should be used in the duran and vs fair of you health services case this court eight does not require institutions to provide all requested auxilary aids and services what's required is a legally sufficient amount of aid and service and effective communication counsel in this case now so how would you are arguing in this case and it's interesting because they'd downplay and argue that they da is different or trumps or somehow supersedes the meaningful access test or analysis that that is not the test that is not the analysis that eighty eight encompasses and incorporates the meaningful access especially in the context of effective communication and that your honors in this case is exactly what the situation is facts theater has never played this admit this and concede this in their papers has never denied a request for captioning since the request was made in this case and th inquiry and you have to understand the context as well for over a decade the facts peter has provided american sign language so for deaf individuals who know american sign language that effective communication that reasonable accommodation has been provided for over a decade a request came in in this case by one of the plaintiffs miss childress in this action and the facts theatre didn't understand that captioning was a different request from sign language that was initially denied when the lawsuit was filed and when we figured out exactly what the request was for captioning we put in place bought equipment provided tablets and captioning for those showings that actual production and performance of rent a musical the rent musical miss childress had captioning for the performance that she wanted luckily there was enough lead time in order for the facts theater to receive figure out what was being requested to purchase the tablets to purchase the interpreter court reporter so that the captioning can be made and another thing that your owners need to understand is that well that is a good question your honor because as i said from the very first request for captioning for rent the fox theatre has not denied any single request for captioning has provided it plaintiffs don't dispute the of captioning that's provided they don't dispute the quality of captioning what they're arguing and what the court provided to plaintiffs was a blank check as long as you requested two weeks in advance for every single performance of a show facts leader has to provide captioning now most of the shows are for a ten day two week run and or sixteen performances so hamilton was an exception that was many more performances and more weeks but rant and most plays musicals run for sixteen shows during a run all the facts that are is asking in all the facts leader has said is hey let's be reasonable we're going to default this is what we usually do just like they do for sign language just like they do for blind or visually impaired individuals they provide audio description of plays or musicals this is the usual show second saturday matinee if you have a request let us know if you can't make that one then we'll switch it or swap either your tickets or will move the performances caption and they've done that in every single case about two dozen times so there is no cas controversy you're on or i would i would agree with that and and the limits of another question for clarification the american sign language accommodation that's not in dispute in the case is correct correct your honor it is not but i but i think it's important to put this in the proper context and understand that what planets have asked for and what the district court has done without even mentioning the phrase or the words meaningful access which is  required analysis are required tests in a situation and a claim in a case like this doesn't even mention those words or give credence to the analysis that this court and federal courts apply to this situation  that as long as they request it the facts leaders are required to give captioning for all sixteen performances we could have sixteen people line up and on every single day every single performance sometimes twice a day provide captioning all the leader is asking is we've provided it we've moved tickets we've done it two or three times for a particular show done it three times for the same show on different days when someone requests it but what the district court did was say heck no it's a blank check there's no parameters and this is going to provide a slippery slope because the next time we are going to have a request for a sign language interpreter at every single show we are going to have a request for the audio descriptions at every single show  it's no different your honour's than a situation where yes the fox theatre has disabled cd for mobility impaired individuals with wheelchairs or other seating arrangements if thirty people show up needing those seats or wanting to buy tickets it's not a violation if all those seats are used or otherwise have been purchased already it's the same thing here there's never been a denial i think the response  going to be that you're talking about the things that might happen whereas in fact you have very limited request and that has not been burdensome up to this point and if that did if that situation did come pass where you had requests for every single show and the cost became too excessive you're always have the right to come back again and asked that the injunction be modified because of undue of and that doob or shirt and that's interesting your honor but  limit it at all i mean what you you filed a lawsuit they filed a lawsuit and you resisted it you said you wouldn't agree to it so all the judge had to do something so what the judge of done in this so you're under some parameters would have would have been appropriate or would have been nice what the fox theater has offered is we're going to do it for at least one when there's a request for multiple ones we're going to figure it out we're going to offer people to change the day to began discussing this after the controversy started fox theater has offered captioning every time someone's requested it but to have the injunction say you have to provide it for every single situation does make a ruling and injunction and provide relief to plaintiffs where there is no case and controversy and it goes well beyond what the eighty a reasonable nyssa and meaningful access requirements are so i'm still not sure should the just recorded dismissed the lawsuit should they have issued a different injunction what what are you asking the district us to tell the district court to do in this case that the district court rule on the first requirement that it said captioning these provided at every performance what the court should have said is the facts leaders are required to provide captioning for at least one performance and maybe more depending on the circumstances this court and the meaningful access analysis incorporate a case by case fact specific and alice and that's not what the court did here the court did not analyze what's appropriate under the circumstances the court should have said the fox is in compliance with what it had agreed to do long before the parties filed their motions their cross motions for summary judgment there should have been an opinion confirming that the facts leader is complying with the law not everything that plaintiffs are requesting but that's not according to this court's decisions in our journey and with regard to during and say everything that plaintiffs require is not what they mandates it's meaningful access and what's legally sufficient your honour's and i'd like to reserve my remaining time for a bottle of mr further questions good morning your honor john wall there from houston texas to begin with i'd like to thank the court for the courtesy and relf in this range for the current reporting and the preferential seating for my clients this is absolutely been a huge help to us this courtroom is small enough that i should be able to read your lips easily when you're asking me a question i will say like many people with hearing loss i have trouble sometimes hearing somebody speak or even though they are speaking if there's background noise even if the background noise is a sound of my own voice so if i don't respond immediately to a question just let me know with a high sign or something like that that you want to talk and believe me i will stop and let you met please the them a letter that said you know not only is it the right thing to do but it's also the law they norden then they got sued then we you know messed around for about eight months before we actually sat down and started talking and then w did fox said yeah i suppose we can do it i mean this far as they didn't understand the request was childress said here are people that provide theater captioning the response from the fos was we know about those people we know what they do and if we decide we're going to offer we'll get in touch with what was after the lawsuit was filed that they responded and said yes we will start doing one caption performance of each production we sat that's a good start guys and we hope that works it immediately became apparent that it wasn't going to work because in the start and could not go that particular night somebody else wanted to go with friends on a different night so we thought ok fox the way you're doing captioning they're doing captioning available from every seat which means unlike the situation where a reader board is put near the stage and you have to block out certain seat and by the way this is the way as it was done to a certainty to have to be blocked out we can see that that's a problem but since you are not facing that problem fox why can't you offer captioning for every performance when a request is made i mean we said look we don't think you ought to have to you need to have a caption or there is nobody wants it but if a request is made two weeks in advance why can't you do it any time well they want to long for a while and they offered one caption performant a beach show on a saturday afternoon and that worked out fine until most children  said i can't make that particular performance can you provide captioning for a different one they said yes but that is an exception to our policy we would do it this one time only we will evaluate future requests on a case by case basis and they will not always be granted only after judge perry issued her decision that they then start routinely doing multiple caption performances and that's great but the notion that there is any kind of voluntary compliance just is belied by the fact that it took a lawsuit to get them to do anything they then did exactly what they said they were going to do is a partial settlement agreement and after that they did what the district court required because they didn't request pending this appeal council that leads me to a question then i want to make sure i understand what your interpretation of the language of the it is it's my understanding that it's your position that the a d l provides flexibility as to the type of auxilary aids that are provided but not as to the number of performances were accommodations made and that your position that it's one hundred percent of performance that's correct your honor in terms of this meaningful access stuff i think that the fox is conflating two similar but really quite different things one is opportunity the other is outcome or result the a d a s specifically says that it is discriminatory to provide people with disabilities and an equal opportunity and it's from that in the base let me ask a follow up question then it seems to me that that interpretation of the eighty a leads to an all or nothing proposition that you either provide the exhilarating age one hundred percent of the time or if it's an undue burden to do so you offer none of the time well exactly and i think i think undue burden is the limiting factor on providing equal opportunity now what they tend to conflate this with the equal outcome and it's quite true that eighty eight and meaningful access does not require equal outcome and indeed until and unless medical science can figure out a way to restore our hearing we are never going to have equal outcomes we get that the council doesn't the all or nothing interpretation of the d n a result in less accommodation for the handicapped rather than more i'm not sure i understand how that could be your honor with puts him in a position of providing digs a jewelry aids all the time or if it's an undue burden none of the time rather than for certain performances i suppose that could be the case yes there could be a possibility that it would be an undue burden for them to provide the jury agents or of us as for any production not what i think should happen here again is i think  if in fact the number of requests gets to the point that it's a new burden they can go back into court and ask that the injunction be modified with knowledge that but what's striking about this case is they state right there on their brief we acknowledge that the level of demand yet has not risen to the level of undue burden so what we're talking about here is the essence of a hypothetical grievance the concern that someday the number of requests might rise to the level of und burden should that happen they have a remedy we anticipated the undue burden defense obviously at the outset so as part of our discovery we asked them for information about the revenue because und burden it's never defined but the d o j is provided a list of factors to be considered on the primary factor is the available resources as compared to the cost but we thought in this situation when we are asking and services by request that until we know how many requests there are going to be it's impossible to figure out what the cost is going to be they declined to provide the revenue information saying well we think it's not relevant not going to lead to discoverable evidence and we said all right if that's the case you must not be planning to assert the un do burden defense now they made we made cross motion for summary judgment at no time  no time did the fox suggest the trial court that the record was incomplete that there wasn't enough information available to make a decision but now they're coming back and saying well the court should have considered undue burden the court should have considered meaningful meaningful access in a sense it seems almost like what they're asking for here is a mulligan they want to go back and sort of retry some of these things that they could have tried before and didn't do it but if you look at the record that the trial court had in front of it the only issue was is it going to be an undue burden to respond to multiple requests any time they want to come back in and produce or financial  requests this is too much we can go ahead and do it can i ask a question just to clarify something in my mind as i understand it there's a court reporter present during the performance who does the transcription is that right that is my understanding do they have to have a court reporter every performance of a particular play or can they do it once and then replay  i got a court reporter will be creating or could create a transcript that you could then reuse can you do that or do you have to have a court reporter at every performance this is an interesting question you do have to have somebody there at every performance basically to display the captions in sync with the pace of that night's production the pace is always a little bit different when you're talking about live theater on light movies now once the captions are produced the first time i don't know why they can't be renew the foxes told us that the cost for the second performance is a duplicate of the cost of the first performance that's their problem their issue i mean frankly i think they might be getting kind of a bad deal but at their deal and they can fix that not now we do have some very very interesting development out there in the wind prompted to a great extent by judge perry's decision in this case the broadway theaters are starting to work on new technology that will enable captioning for every performance from every seat to a phone it really works very nicely and what we're trying to do miss childers and i are both working with the with the broadway theaters on this we're saying guys let's take the show on the road there's no reason the captions can't travel to st louis to houston to you name it just like the sets in the costumes in the cast that's on the way this is going to get easier and cheaper council yes can you clear this up and this goes really to the underpinnings of the lawsuit it's my understanding that the plaintiff mistrial dress knows american sign language yes she does run and it's my understanding that the theater has been providing american sign language interpretation true and really that's not even no one's complaining about that is that correct that's that's not really an issue  in the case everyone's focusing on that on the captioning it's important to understand iran of the american sign language and english are two different languages i mean i don't know that there's any decision on that but it's an issue that comes up a lot usually from the other side of the fence i must admit when people whose native language is a s l tried to explain why written notes in english are not sufficient basically to provide effective communication this is the flip side miss children basically wants to see and hear and understand the play that the playwrights wrote not necessarily what the a s l interpreter and i'm emphasize interpreter believes of it so it's different at any rate that would be a factual issue that again was not explored at the trial court level why a s l might not have been sufficient for ms childress to have full and equal enjoyment well you know one of our obligations is to make sure that their standing that gap between people who use f l mistah on the other hand she's met at least during the relevant time period she never attended a performance at the theater greg that it that is correct and she never made a request for  commendation no that's correct so why would she as an individual plaintiff why would she have standing in this in this action i suppose because she's a member of the hearing loss association of greater st louis and some of their members have made requests and have actually gone to the caption performances outfox this is all of that in the record as to the membership of these organizations and yes you organization and yes and its members yes i believe that's all in the record so i guess where i am is yes we filed a lawsuit they finally did it now they're talking about how they have provided captioning at every performance since then what they fail to recognize as this court and many others have held is that once compliance occurs post litigation the rules change at that point it is no longer up to us to say well we know that you won't do it in the future it is up to them to demonstrate that there is no probability that they will resume their their improper conduct we see that in the case of stratton vs meade this court decided back in two thousand and twelve and the court there basically took the position that well you know simply saying that the plaintiffs can't prove you won't do it does not satisfy that heavy burden but also refer the court to the feldman vs pro football cases would for captioning cases just like this compliance after the fact and then the defendant try to move it out by saying well you can't prove that we will stop doing at the court said wait that isn't good enough because first of all you could just pull the plug you've got to hire a caption or for every game you could stop doing that any time you wanted the if the pla not control their own fate you guys do so they said at that point it is not moot i don't think this case is moot either simply by the virtue of their post litigation compliance now be quick your honour's the district court got three out of four items correct in fact the district court should have said in its order that it was granting partial summary judgment for defendant because we felt cross motions for s judgment items two three and four in the court's order are in line with what the facts theatre was already doing and what the facts later was arguing should be done the only item in dispute was the requirement that opens up the floodgates that pushes the eighty in the effective communication requirement to its limits by saying you have to provide this for every single performance a football game that happens once no redos no sixteen performances of a football game completely different the department of justice has clearly outlined that auxilary a requirement is a flexible one and that a careful review of the a d s legislative history makes it clear that congress did not intend that title seven impose upon a public accommodation the requirement that it give primary consideration to the request by the disabled individual what plaintiffs won in this case is to flip that burden to flip the analysis and say well you have to if it's an undue burden or if you don't want to do it for sixteen performances you get to go to court your honors that's not how this should work the facts later clearly is providing it has paid for the infrastructure with the tablets with the holders to provide the captioning there is no risk that that five seaters going to wake up one morning and say oh well we're not going to provide it now and in fact cedar has agreed and committed to at least one if not more has actually in actuality provided  multiple performances but to have the district court ignore the meaningful access analysis to say that it has to be the exact same access and what plaintiffs one is to be able to do it for every single performance is wrong it's without or controversy and it goes beyond what the requires judge did you have a question only one theater plaintiff has only provided one theater in the entire country that provides a live theater play or musical setting captioning for every performance and technology is changing and going to provide it on phones but in this case what the district court did was air and it should be reversed and remanded for consider reconsideration and entering of a judgment on behalf of the defendant fox theater thank you thank you counsel appreciate your arguments cases submitted and you may stand aside