Arizona Theaters Cry 'Uncle' - But That May Not Be Good News

February 2010

Editor: We've been following with great interest the appeals court case involving captioning by Harkins theaters in Arizona. Advocate extraordinaire John Waldo has been doing a great job of keeping everyone informed, and he continues with this installment. What looks on the surface like very good news has a potentially serious downside, as John points out in this article.

You can follow John's efforts at http://www.hearinglosslaw.com

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Lawyers for the Harkins movie theater chain, which took the position that they have no obligation to patrons with hearing loss other than to open the doors and let us in, are now waving the white flag of surrender. After getting lambasted by the Ninth Circuit Court of Appeal at oral argument, they filed a motion yesterday asking the appeals court to defer issuing a decision in the case while the parties try to reach a settlement.

While it's gratifying to see the opposition acknowledge that their clocks got cleaned by the appeals court, a settlement might not be very good news at all for folks outside of Arizona who want to see captioned movies. That's because if the parties to a lawsuit settle their case, the appeals court will not issue a decision. And without an appeals-court decision, the trial court's opinion remains "on the books" and can still be cited by theater chains other than Harkins who want to claim that they don't have any captioning obligations.

To briefly review, the Arizona Attorney General and the Arizona Center for Disability Law filed suit against the Harkins regional theater chain on behalf of both deaf and blind, claiming that both Arizona state law and the Americans with Disabilities Act required movie theaters to show captioned movies for folks with hearing loss, and audio-described movies for people with vision loss. The captions and descriptions are furnished without charge by the studios -- the theaters must simply install and deploy equipment needed to display those auxiliary aids.

The theaters argued that they have no obligation to do either of those things. They said that all ADA requires is that they treat everyone equally. Captioned movies, they claimed, are a different product than non-captioned movies, and ADA permits them to sell whatever product they choose -- and they don't choose to show captioned movies. The federal district court bought that argument, and issue a truly regrettable decision.

The case then went to the Ninth Circuit Court of Appeals, which heard oral argument last month. The judges essentially ridiculed the theater's argument, telling the theater attorneys at one point that "you will lose on this issue ... maybe not this case, but on this issue," and urged the parties to work out an agreement.

The Harkins attorneys are now asking for the opportunity to do just that. While the judges indicated strongly that they won't accept the theaters' argument, they didn't actually issue a ruling. And the Harkins attorneys are now asking the judges to put their ruling on ice while the parties mediate and try to resolve the case.

While it's always nice to make peace and put an end to litigation, there's a danger involved. Any settlement would just bind the Harkins theaters in Arizona -- not any other theaters in any other states. The bad decision from the trial court, though, would remain on the books to jump up and haunt us at some future time even if the appeals court issues an order saying that the decision is "vacated."

What the appellate court wanted the parties to work out, we think, were the details -- how many screens would be equipped to show captioned films, how often would they be shown, etc. We completely agree that discussion ought to take place, but we think it should take place after the appeals court issues an opinion striking down the trial court's opinion.