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May 3, 2004.

KEVIN BALL, et al., Plaintiffs,
AMC ENTERTAINMENT, INC., et al., Defendants

The opinion of the court was delivered by: GLADYS KESSLER, District Judge


Plaintiffs are deaf and hard of hearing individuals residing in the Washington, D.C., metropolitan area. They bring this class action against movie theater operators AMC Entertainment, Inc. ("AMC") and Loews Cineplex Entertainment Corp. ("Loews") (collectively, "Defendants"). Plaintiffs allege that Defendants violate the Americans with Disabilities Act ("ADA" or "Act"), 42 U.S.C. § 12101, et. seq. (1992), by failing to provide them with the reasonable accommodations necessary for full and equal enjoyment of Defendants' services through implementation of captioning and other interpretive aids.*fn1

This matter is before the Court on the Joint Motion for Approval of Proposed Settlement ("Joint Motion"). Upon consideration of the Joint Motion, the Proposed Settlement Agreement ("PSA" or "Settlement"), the written comments regarding the PSA, the parties' responses to those comments, the oral comments of witnesses at the Fairness Hearing held on April 1, 2004, the parties' written responses following the Fairness Hearing, and the entire record herein, for the reasons discussed below, the Joint Motion for Approval of Proposed Settlement is granted and the PSA is approved.

 I. Background

  In April 2000, Plaintiffs, who have a disability recognized by the ADA,*fn2 brought this action alleging that Defendants' failure to provide reasonable accommodations for deaf patrons desiring to see first run movies*fn3 shown in Defendants' movie theaters violates the ADA. In November 2001, the Court certified this matter as a class action under Federal Rule of Civil Procedure 23(b)(c), thus allowing the Plaintiffs to seek an injunction requiring Defendants "to implement the captions and other interpretive aids" necessary to comply with the ADA, which "includes but is not limited to: (a) open captioning devices and (b) closed captioning devices, such as rear window captioning." Compl. at p.7 and 5 15. A. Types of Captioning

  Captions are textual descriptions of a film's soundtrack, comprised of the dialogue and descriptions of other sounds.*fn4 There are two types of captioning, open and closed. Open captions are similar to subtitles — the text is visible to everyone in the theater. Open captioning usually requires special prints of the film, with the captions permanently imposed on the film, that would be presented at special screenings, often mid-week and/or mid-day performances. More recent advances in technology have given rise to digital captioning systems in which the captions are superimposed onto the film at the theater, as needed, and do not require special prints of the films with permanently imposed captions. However, digital captioning is still an open captioning system because when it is used, the captions are visible to all persons in the theater. See Pls.' Response to Comments Raised at Fairness Hearing ("FH Response") at 10-11 and Affidavit of Lawrence R. Goldberg ("Goldberg Aff.") at ¶ 4 (providing general descriptions of the DTS-CSS captioning system); Coalition for Movie Captioning's Comments and Opposition to the PSA ("CMC's Opposition") at 4 n.4 (noting that "on-demand" open captioning of films is available through use of a DTS system). Closed captioning displays the text only to those patrons who require captions, not to all audience members. Rear Window Captioning ("RWC") is a specific type of closed caption technology. With RWC-compatible movies, captions are recorded on a computer disc, separate from the movie itself but provided free of charge by the movie studios, that is played simultaneously with regular screenings of the movie. As the movie is displayed on the movie screen, the captions are sent to an LED data panel installed on the back wall of the theater. Patrons then use portable, transparent acrylic panels attached to their seats to reflect the LED captions, allowing the captions to appear superimposed on or beneath the movie screen. The reflective panels are portable and adjustable (usually placed in cup holders attached to seats), enabling patrons using RWC to sit almost anywhere in the theater.

  B. Defendants' Motion for Summary Judgment

  In November 2002, after the parties had conducted discovery in this matter, Defendants moved for summary judgment. They argued that the ADA and its implementing regulations did not require their movie theaters to show movies captioned using RWC because such a requirement 1) was explicitly precluded by the Act and Department of Justice ("DOJ") regulations, 2) would change the nature or mix of the goods or services Defendants offer, and 3) would be unduly burdensome. In opposing Defendants' Motion for Summary Judgment, Plaintiffs made it clear that the relief they sought was "installation of RWC in a fair number of Defendants' screens," see Pis.' MSJ Opp'n at 5, and that RWC was an existing cost-efficient technology that would allow deaf persons to attend first run movies without fundamentally altering the nature of movies or placing an undue burden upon Defendants. In addition to the parties' briefs on summary judgment, the Coalition for Movie Captioning ("CMC") also filed an amicus brief opposing summary judgment.

  On February 24, 2003, after full briefing and a motions hearing, Defendants' Motion for Summary Judgment was denied. See Ball v. AMC Entertainment, Inc., 246 F. Supp.2d 17 (D.D.C. 2003). The Court found that "neither the ADA nor the DOJ implementing regulations explicitly forbid requiring Defendants' movie theaters to exhibit closed captioned films." Id. at 12. The Court also concluded that
the relief requested by Plaintiffs-installation of RWC in a fair number of Defendants' screens to make closed captions available to deaf patrons for those RWC-compatible movies that Defendants would otherwise show — would allow class members to enjoy the first run movies normally shown by Defendants without fundamentally altering the nature or mix of the service they provide.
Id. at 25. Finally, the Court found there were material facts in dispute regarding Defendants' claim that requiring installation of RWC would constitute an undue burden under the ADA. See id. at 26.

  In issuing its summary judgment decision, the Court specifically stated that "Plaintiffs' request for open captioning [would] not be considered" because the dispute regarding the installation of RWC had "become the key concern." Id. at 21 n.13. Thereafter, the parties began settlement discussions to resolve this matter.*fn5

  C. The Pending Motion and Fairness Hearing

  On December 12, 2003, the parties filed the pending Joint Motion for Approval of Proposed Settlement. See discussion § II.B., infra, for details of the PSA. In accordance with Federal Rule of Civil Procedure 23(e), the Motion also included a plan for notifying members of the class about the PSA, as well as a schedule for conducting a fairness hearing. See Fed.R.Civ.P. 23(e)(requiring, in class actions, court approval of settlements and notice to class members of proposed settlements); Moore v. National Ass'n of Securities Dealers, Inc., 762 F.2d 1093, 1113 n.4 (D.C. Cir. 1985) (stating that fairness hearings are held under Rule 23(e) in "an effort to ascertain whether the settlement negotiated by class representatives is fair to all class members").

  On December 19, 2003, the Court ordered the parties to provide further information about the PSA with regard to attorney's fees, notification of the class, and the process for determining which class members could appear at the fairness hearing. On December 23, 2003, the parties provided the requested information. On January 11, 2004, the Court preliminarily approved the PSA, approved the parties' plan to provide notice to class members, and scheduled a Fairness Hearing for April 1, 2004. In anticipation of the Fairness Hearing, the Court informed class members of their right to file their "written objection (s) to the proposed settlement and/or a statement of intention to appear and participate in the Fairness Hearing" by March 12, 2004, and stated that only those class members who provided this written notice would be permitted to participate in the Fairness Hearing. 1/11/04 Order at 1, 2.

  The Court received 33 written comments that were filed or postmarked by March 12, 2004. See Attachment A (copies of those comments received by the Court).*fn6 Of those comments, 21 were submitted by individual class members and 12 were submitted by deaf advocacy groups (or those people claiming to represent such groups). Because the Court's Order had specifically stated that written "objection(s)" had to be filed, most of the comments (27) submitted focused on specific points of opposition to the PSA and only 5 ...

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