United States of America, Plaintiff, v. Cinemark USA, Inc., Defendant - Consent Order

2.       Settlement of On-Going Litigation

2.1     The United States and Cinemark agree to stipulation of the terms set forth herein and to entry of this Consent Order as a binding resolution of this litigation.  The parties further agree that this Consent Order shall extinguish all claims for relief and all counterclaims between the United States and Cinemark in the aforementioned litigation.  Nothing in this Consent Order shall prohibit Cinemark from using the arguments that form the basis of Cinemark's denials, affirmative defenses, and counterclaims to defend itself in future litigation.  Entry of this Consent Order brings certainty regarding Cinemark's obligation concerning the placement and location of wheelchair spaces, and the depth of the cross-aisles, at all of Cinemark's Existing Theaters, Designed Theaters, and Future Construction Theaters, as defined in this Consent Order.

2.2     This Consent Order shall be a full, complete, and final disposition and settlement of all of the United States' and Cinemark's claims between the parties that have arisen in this case. The United States' Complaint shall be dismissed, and final judgment entered with prejudice.

2.3     The United States acknowledges and agrees that, when Cinemark completes the modifications set forth in 3.1 through 3.11 of this Consent Order for each Modified Theater, and when Cinemark opens Designed Theaters and Future Construction Theaters built in accordance with this Consent Order after the Effective Date of this Consent Order, these theaters, in each case, shall be in compliance with the requirements of the ADA with respect to (a) providing wheelchair spaces with lines of sight comparable to those for members of the general public, (b) including wheelchair spaces as an integral part of the fixed seating plan, (c) providing the appropriate depth for cross aisles to wheelchair spaces and (d) satisfying applicable dispersion requirements. For the aforementioned theaters, no further modification shall be necessary to comply with ADA Standard 4.33.3 and Sections 221 and 802 of the ADA and ABA Accessibility Guidelines for Buildings and Facilities, as published in the Federal Register on July 23, 2004.  The United States further acknowledges and agrees that for Cinemark's Existing Theaters (other than the Modified Theaters), upon the Effective Date of this Consent Order, such Existing Theaters satisfy the Department's concerns under the ADA with respect to (a) providing wheelchair spaces with lines of sight comparable to those for members of the general public, (b) including wheelchair spaces as an integral part of the fixed seating plan, (c) providing the appropriate depth for cross aisles to wheelchair spaces and (d) satisfying applicable dispersion requirements; and no other modification is required to comply with ADA Standard 4.33.3 and Sections 221 and 802 of the ADA and ABA Accessibility Guidelines for Buildings and Facilities, as published in the Federal Register on July 23, 2004.  

2.4     The United States shall be prohibited from filing suit against Cinemark for alleged violations of ADA Standard 4.33.3 with respect to any of Cinemark's Existing Theaters, any of Cinemark's Modified Theaters that are modified in accordance with this Consent Order, and any of Cinemark's Designed Theaters or Future Construction Theaters that are designed and constructed in accordance with this Consent Order. In the event that there are changes in the legal requirements governing the design of wheelchair seating locations in assembly areas (including stadium-style movie theaters), whether by modification of the DOJ's regulation implementing Title III of the Americans with Disabilities Act (currently codified at 28 C.F.R. Part 36, including Appendix A, the Standards for Accessible Design), by act of Congress, or by decision of the United States Supreme Court, Cinemark shall thereafter construct any new theaters in compliance with whatever new or different design requirements are adopted, enacted, or held to be binding.  This Consent Order shall be a full, complete, and final disposition and settlement of all of the United States' and Cinemark's claims between the parties that have arisen in this case. The United States' Complaint shall be dismissed, and final judgment entered with prejudice.

2.5     In any third party litigation involving Cinemark's stadium-style movie theaters, the United States shall not advocate a position that contradicts or calls into question the terms of this Consent Order.

2.6     Except as permitted by Section 8.3, the United States shall be prohibited from filing suit, from encouraging others to file suit, or assisting others in filing suit against Cinemark on any issue or claim addressed in this Consent Order, except nothing in this Consent Order precludes the Department of Justice from providing technical assistance through the Department of Justice ADA Information Line and all parties agree that such information may be provided by the Department of Justice to third parties by that means without limitation.  Except as permitted in Section 8.2, the United States shall also be prohibited from investigating Cinemark for alleged violations of requirements of the ADA with respect to (a) providing wheelchair spaces with lines of sight comparable to those for members of the general public, (b) including wheelchair spaces as an integral part of the fixed seating plan, (c) providing the appropriate depth for cross aisles to wheelchair spaces and (d) satisfying applicable dispersion requirements, with respect to any Existing Theater, Modified Theater, Designed Theater, or Future Construction Theater built in accordance with this Consent Order, as defined above.