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

PRELIMINARY MATTERS

A.      Cinemark USA, Inc. is a Texas corporation with its principal place of business located in Plano, Texas. Cinemark owns and/or operates motion picture theaters, including stadium-style movie theaters, in various states throughout the United States. Cinemark owns and operates places of public accommodation within the meaning of 42 U.S.C. § 12181(7)(C) and 28 C.F.R. § 36.104.

B.       The United States Department of Justice ("Department" or "DOJ") is the federal agency responsible for administering and enforcing Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12181-12189.

C.      Pursuant to Title III of the ADA, all places of public accommodation – including Cinemark's stadium-style movie theaters – that were designed and constructed for first occupancy after January 26, 1993, must be readily accessible to and useable by persons with disabilities by complying with the requirements set forth in the ADA Standards for Accessible Design, 28 C.F.R. pt. 36, Appendix A (the "ADA Standards").

D.      The Department began receiving complaints from persons with disabilities regarding a new design of movie theaters across the country, including stadium-style movie theaters owned and/or operated by Cinemark, known as "stadium-style movie theaters," in which most of the seating is elevated on a series of risers in the auditorium.

E.      In Cinemark's auditoria with more than 300 seats, patrons may use elevators to access some of these seats on risers. In some of Cinemark's auditoria with 300 seats or less, persons who use wheelchairs cannot access the seating on risers as the wheelchair spaces available to them are located on the traditional, sloped-floor section of the auditoria in front of the seating on risers.

F.       Some complainants who use wheelchairs informed the United States that the wheelchair spaces available to them in some of Cinemark's auditoria with 300 seats or less were too close to the screen and caused physical discomfort.

G.      After the Department began investigating complaints about stadium-style movie theaters, Cinemark and other companies argued that they satisfy the requirements of the ADA by providing patrons who use wheelchairs with "unobstructed" views of the screen. Later, the United States Court of Appeals for the Fifth Circuit so held in Lara v. Cinemark USA, Inc., 207 F.3rd 783 (5th Cir.), cert. denied, 531 U.S. 944 (2000). Based upon the Lara decision, the United States shall not seek any relief for Cinemark theaters in states within the jurisdiction of the Fifth Circuit.

H.      The United States' interpretation of ADA Standard 4.33.3 was issued in an amicus brief in July 1998 and federal circuit courts and district courts across the country have differed about whether or not the interpretation espoused by the United States was a proper interpretation of the ADA, how compliance with such an interpretation should be measured, and the appropriate remedies, if any, for retrofits, taking into account due process concerns. Cinemark has also expressed its concern to the Department that ADA Standard 4.33.3 and the United States' interpretation thereof provided insufficient guidance for theater designers about the proper placement of wheelchair seating areas in its stadium-style movie theaters. The Department acknowledges that the movie theater industry has long expressed confusion about legal obligations under Standard 4.33.3.  Since the United States published its interpretation of ADA Standard 4.33.3 in the July 1998 amicus brief in Lara, Cinemark has made good faith efforts to design its stadium-style movie theaters in compliance with the United States' aforementioned interpretation.

I.       On January 28, 1998, the Department opened an investigation of Cinemark's stadium-style movie theaters. On or about December 2, 1998, prior to litigation, the Department and Cinemark entered into discussions about future construction obligations for its stadium-style movie theaters. The Department issued a letter dated January 26, 1999, asserting that Cinemark's theaters were in violation of the ADA. Cinemark disagreed with the Department's conclusions and asserted its belief that its auditoria complied with the ADA. Cinemark filed suit against the United States in the United States District Court for the Northern District of Texas on January 28, 1999, alleging that the Department's interpretation of Standard 4.33.3 violated the Administrative Procedures Act, 5 U.S.C. 551 et seq.

J.       The Department filed a lawsuit against Cinemark on March 24, 1999, in the United States District Court for the Northern District of Ohio, to enforce compliance with the requirements of Title III of the ADA. In this lawsuit, the United States alleged that Cinemark committed a pattern or practice of discrimination in violation of Title III of the ADA by (1) failing to design and construct its stadium-style movie theaters so as to provide persons who use wheelchairs with a choice of seating locations and lines of sight comparable to those provided to members of the general public; and (2) failing to provide persons with disabilities equal access to the choices, benefits, and services available at its stadium-style movie theaters. Cinemark denies the allegations in the United States' complaint.

K.      Cinemark filed counterclaims and affirmative defenses alleging, among other things, that the DOJ acted unlawfully by attempting to retroactively change the meaning and interpretation of ADA Standard 4.33.3, that the DOJ failed to comply with the Administrative Procedures Act in promulgating, announcing, and attempting to enforce its interpretation of Standard 4.33.3, that the DOJ's interpretation illegally deprived Cinemark of due process, that Cinemark relied in good faith on state approvals when constructing its theaters, and that the DOJ should be estopped from invalidating those approvals.

L.       Cinemark's stadium-style movie theater designs in Texas were approved by the Texas Department of Licensing and Regulation as accessible under the Texas Accessibility Standards, state accessibility regulations certified by the United States as "meeting or exceeding" federal standards. Cinemark claims that its stadium-style movie theaters across the nation are substantially similar, if not identical, to these state-approved designs.

M.      As a result of ongoing discussions, Cinemark and the Department (collectively, the "parties") have reached agreement that it is in the parties' best interests, and the Department believes that it is in the public interest, to resolve this lawsuit on mutually agreeable terms without further litigation.