UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS


UNITED STATES OF AMERICA,

Plaintiffs,     

v.

NATIONAL AMUSEMENTS, INC.,

  Defendant.     








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Civil Action No.
00 CV 12568 (WGY)




CONSENT ORDER

           

On December 18, 2000, the United States filed a complaint under the Americans with Disabilities Act (“ADA”) against National Amusements, Inc. (“National”) in the United States District Court for the District of Massachusetts (the"Complaint").  The Complaint alleged that certain stadium-style movie theatres owned and/or operated by National violate the Americans with Disabilities Act (“ADA”), with respect to the placement therein of locations for persons with disabilities who use wheelchairs.  National has at all times denied those allegations and any violation of law and neither the fact of this Consent Order nor anything in it constitutes, or should be argued or understood to imply, an admission by National of any of the allegations made by the United States in the Complaint, or of any violation of any law, including Title III of the ADA and its implementing regulations.  The United States recognizes that, with respect to the understandings herein regarding future building, National has demonstrated a commitment to providing persons with disabilities who use wheelchairs equal access to National's stadium-style movie theatre complexes.  In order to resolve the Complaint without further litigation, the United States and National have agreed upon and voluntarily present the following Consent Order and final judgment, which fully resolves the United States’ claims against National as stated in the Complaint.

 

JURISDICTION

A.    The Court has jurisdiction of this matter pursuant to 28 U.S.C. §§ 1331 and 1345, and 42 U.S.C. § 12188(b).

PRELIMINARY MATTERS

A.    National is a corporation with its principal place of business located in Massachusetts.  National owns and/or operates motion picture theatre complexes, including stadium-style movie theatre complexes, in various states throughout the United States.  National 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 and, in that role, has promulgated the ADA Standards for Accessible Design, 28 C.F.R. pt. 36, Appendix A (the "ADA Standards").

C.     On December 18, 2000, the Department filed the Complaint against National in the United States District Court for the District of Massachusetts (the “Court”), alleging non-compliance with the requirements of Title III of the ADA in certain stadium-style movie theatre auditoriums.  In the Complaint, the United States alleged that National 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 theatre complexes 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, in violation of sections 302 and 303 of the ADA and Standard 4.33.3 (Count I); and (2) failing to provide persons with disabilities equal access to the choices, benefits, and services available at its stadium-style movie theatre complexes, in violation of section 302 of the ADA (Count II).

D.     National denied and continues to deny the allegations in the Complaint, and the other allegations made by the United States in the lawsuit.  Among other things, National filed 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 with respect to its litigation concerning Standard 4.33.3, and that the DOJ’s conduct illegally deprived National of due process.

E.     Count II of the DOJ’s complaint was dismissed by the Court pursuant to Fed. R. Civ. P. 12(b)(6) by Opinion and Order dated August 22, 2001.  On March 31, 2003, the Court entered an order denying National's motion for summary judgment as to the remaining claim (Count I) and entered an order granting summary judgment sua sponte in favor of plaintiff United States on that claim, ruling that in stadium-style movie auditoriums Standard 4.33.3 requires that wheelchair locations be within the "stadium section," which the Court defined as an area in which seating "is located on a riser that is elevated approximately twelve to eighteen inches higher than the riser immediately preceding it."  However, the Court held that the only auditoriums that required retrofitting were those that lacked wheelchair locations in the stadium section (as defined by the Court) and that were constructed or refurbished after the filing date of the Complaint.  All parties filed timely notices of appeal with the United States Court of Appeals for the First Circuit.  The District Court denied National's request for a stay of the summary judgment order pending the appeal.

F.     On August 20, 2004, the First Circuit issued a decision vacating the district court judgment and order, and remanding the action to the Court for further proceedings consistent with the First Circuit’s decision.  See U.S. v. Hoyts Cinemas Corp., 380 F.3d 558 (1st Cir. 2004).

G.     As a result of ongoing discussions, National and Plaintiff the United States (acting through the Department and the Office of the United States Attorney for the District of Massachusetts) (hereinafter collectively referred to as the “Parties”) have reached agreement that it is in the Parties’ best interests, and the United States believes that it is in the public interest, to resolve this lawsuit on mutually agreeable terms without further litigation.

WHEREFORE, the Parties agree and stipulate to the Court’s entry of this Consent Order and final judgment, which provides as follows:

1.     DEFINITIONS

The Parties agree and stipulate that certain terms shall be defined for purposes of this Consent Order:

1.1     “ADA” shall mean and refer to the Americans with Disabilities Act, 42 U.S.C. §§ 12101, et seq.

1.2     “ADA-mandated wheelchair spaces” or “ADA-mandated wheelchair seats” shall mean and refer to the number of required wheelchair spaces within public assembly areas as set forth in 28 C.F.R. pt. 36, Appendix A, § 4.1.3(19)(a).  "Non‑ADA‑mandated wheelchair spaces" shall mean and refer to wheelchair spaces in excess of those required by 28 C.F.R. pt. 36, Appendix A, § 4.1.3(19)(a), such as additional wheelchair spaces required by state or local codes.

1.3     “ADA Standards” or “Standards” shall mean and refer to the construction standards set forth at 28 C.F.R. pt. 36, Appendix A.

1.4     “Applicable Provisions” means any and all federal statutes, codes, regulations and other legislation concerning any Requirements, including, without limitation, sections 302 and 303 of the ADA, Standard 4.33.3 of the ADA Standards, and sections 221 and 802 of the ADA and ABA Accessibility Guidelines published in the Federal Register on July 23, 2004. 

1.5     “Auditorium” shall mean and refer to a room in a Stadium-style theatre complex that contains a single screen for the public exhibition of motion pictures and seating for members of the general public.

1.6     “Companion seat” or “companion seating” shall mean and refer to a fixed seat within an Auditorium, which is immediately adjacent to a wheelchair space.

1.7     “Consent Order” or “Order” shall mean and refer to this Consent Order and Final Judgment, including all attached appendices and incorporated documents.

1.8    “Cross-Aisle” shall mean and refer to any level pathway between sections of seats that is parallel to the theatre screen.

1.9     “DOJ” or the “Department” shall mean and refer to the United States Department of Justice.

1.10     “Effective Date” of this Consent Order shall mean and refer to the date that this Consent Order is entered as a final judgment by the United States District Court for the District of Massachusetts.

1.11     “Existing Theatres” shall mean and refer to all National Stadium-style theatre complexes in the United States that are currently open to the public and for which the DOJ has architectural drawings.  A full and complete list of Existing Theatres is attached as Appendix 1 to this Order.

1.12    “Future Construction Theatre” shall mean and refer to a National Stadium-style theatre complex in the United States that is not on Appendix 1 and for which the certificate of occupancy is obtained by National on or after the Effective Date of this Consent Order.  As to a National Stadium-style theatre complex that is not listed on Appendix 1 and which does not fall into the definition herein of "Future Construction Theatre," that complex is not encompassed by this Consent Order, and this Consent Order does not impose any obligations on nor provide any releases to any party with respect to that complex. 

1.13    “National” shall mean and refer to National Amusements, Inc. and all its subsidiaries.

1.14     “Requirements” means all requirements under the ADA or any regulation or code promulgated thereunder with respect to: (a) the location of and lines of sight for wheelchair spaces; (b) including wheelchair spaces as an integral part of the fixed seating plan; (c) satisfying applicable dispersion requirements; (d) providing disabled persons with the full and equal enjoyment of Auditoriums; (e) providing companion seats; and (f) adjoining wheelchair spaces to an accessible route that serves as a means of egress in the case of emergency. 

1.15     “Riser” shall mean and refer to an elevated tier of at least four inches in height with seats affixed to that tier.

1.16    “Stadium-style seating,” “Stadium Section,” or “stadium seating” shall mean and refer to that portion of an Auditorium where the seats are affixed to Risers, each row of stadium seating is elevated above the row ahead of it, and some or all of such seating is accessed by one or more flights of stairs or ramps.  For purposes of this Consent Order, Stadium-style seating excludes current or former IMAX auditoria.

1.17     “Stadium-style theatre complex” shall mean and refer to a facility owned, operated, and/or leased by National that contains one or more Auditoriums with Stadium-style seating for the purpose of public exhibition of motion pictures.

1.18     “Non-stadium seating” shall mean and refer to the section of an Auditorium in which the seats are not affixed on Risers. 

1.19     “Unobstructed view,” for purposes of this Consent Order, shall mean and refer to a view to the movie screen that is not blocked or interfered with by any seats, railings, seated persons, or other objects.  "Obstructed view," for purposes of this Consent Order, shall mean and refer to a view to the movie screen that is blocked or interfered with by seats, railings, seated persons, or other objects.  National currently uses seated eye heights of 40 inches for patrons in fixed seating and 48 inches for patrons who use wheelchairs when calculating clearances over heads and other actual or potential obstructions between patrons and the movie screen.  To the extent that this Order requires provision of an Unobstructed view or prohibits provision of an Obstructed view, National shall provide patrons who use wheelchairs with an Unobstructed view to the bottom of the screen using these same seated eye height values.

1.20     “Wheelchair space,” “wheelchair location,” or “wheelchair seating” shall mean and refer to a designated space in an Auditorium where a person who uses a wheelchair can situate him- or herself to view a motion picture in that Auditorium.

2.    SETTLEMENT OF ON-GOING LITIGATION

2.1     The United States and National stipulate to the terms set forth herein and to entry of this Consent Order as a binding resolution of this lawsuit.  The Parties further agree that this Consent Order shall extinguish all claims for relief between the United States and National concerning the placement and location of wheelchair spaces at all Existing Theatres and Future Construction Theatres, as defined in this Consent Order.  By entering into this Consent Order, no National entity is consenting to personal jurisdiction in this District for any purpose other than enforcement of this Order.  Nothing in this Consent Order shall prohibit National from using the arguments that form the basis of National’s denials, affirmative defenses, and counterclaims to defend itself in future litigation.  Nothing in this Consent Order shall in any way limit National's arguments and/or defenses in any other litigation; among other things, nothing in this Consent Order shall prohibit National from using any argument, position, evidence or affirmative defense that has been used in this lawsuit in other litigation.

2.2     This Consent Order shall be a full, complete, and final disposition and settlement of all of the claims between the Parties concerning the placement and location of wheelchair spaces at all Existing Theatres and Future Construction Theatres, as defined in this Consent Order.  It does not resolve the United States' claims as to Stadium-style theatre complexes currently owned, operated, and/or leased by Northeast Cinemas, L.L.C.  The United States’ Complaint in Civil Action No. 00-CV- 12568 (WGY) shall be dismissed in its entirety and final judgment entered with prejudice as between the United States and National, each Party to bear its own costs and attorney fees.  Neither Party will seek any form of relief, recompense or sanctions not provided for in this Consent Order.

2.3     The United States acknowledges and agrees that, when National completes the respective modifications, if any, set forth in Section 4 of this Consent Order for each Existing Theatre and when National opens Future Construction Theatres built in accordance with this Consent Order after the Effective Date of this Order, then each such theatre complex shall, at the time its respective modifications are completed, or upon the entry of this Consent Order if no modifications to such theatre complex are required by this Consent Order, satisfy the Department's concerns regarding placement of wheelchair and companion spaces in that complex.  The Department shall not pursue further enforcement of the ADA or its regulations with respect to the location of wheelchair spaces at the theatres that comply with this Order.  As to all Existing Theatres and Future Construction Theatres, no modifications other than those specified in this Order shall be necessary.

2.4     The United States shall be prohibited from filing suit against National for alleged violations of any Applicable Provisions or Requirements with respect to any Existing Theatres that comply with this Consent Order, and with respect to any Future Construction Theatres that are designed and constructed in accordance with this Consent Order.  In the event that there are changes in the legal requirements governing wheelchair seating in Auditoriums, including modification of the Department’s regulations implementing Title III of the Americans with Disabilities Act (currently codified at 28 C.F.R. Part 36 and Appendix A), National's construction of new stadium-style Auditoriums will be governed by whatever new or different design requirements are adopted, enacted, or held to be binding, beginning at the point in time when those requirements become effective.  This Consent Order shall be a full, complete, and final disposition and settlement of all of the claims between the Parties concerning the placement and location of wheelchair spaces at all Existing Theatres and Future Construction Theatres, as defined in this Consent Order.  The United States’ Complaint in Civil Action No. 00-CV-12568 (WGY) shall be dismissed in its entirety, and final judgment entered with prejudice upon entry of this Consent Order by the Court.

3.     GENERAL REQUIREMENTS FOR ALL EXISTING
AND FUTURE CONSTRUCTION STADIUM-STYLE AUDITORIUMS

3.1     Unobstructed View of the Screen

National shall not modify an Existing Theatre in a manner that results in an Obstructed view for patrons in ADA-mandated wheelchair spaces.  If a modification to an Existing Theatre does result in such an Obstructed view, National shall make further modifications as necessary to eliminate the obstruction.

3.2     Companion Seating

Any National Stadium-Style Theatre complex modified, altered, or constructed pursuant to the terms of this Order shall have at least one companion fixed seat provided adjacent to each ADA-mandated wheelchair space (i.e. - 1:1 ratio).  ADA-mandated wheelchair spaces and companion seats shall also be located on the same floor level as all other seats in the same row.

3.3     Wheelchair Spaces Not Permitted in First Row

Except as expressly provided by this Order, no ADA-mandated wheelchair space shall be located in the front row closest to the screen at any Existing Theatre or Future Construction Theatre. (DOJ is not aware of any front row wheelchair positions in any Existing Theatres.)  ADA-mandated wheelchair and companion seats shall be no closer to the screen than the last row of the non-stadium seating section.  If such location is not feasible because of the size or configuration of the Auditorium or for some other reason(s), these wheelchair and companion seats shall be as far from the screen as practicable along an accessible route.

3.4     Delays or Modifications Caused by City, State or Local Authorities

National will make reasonable good faith efforts to obtain permits and authorizations including, without limitation, building permits and certificates of occupancy that may be required under local law, ordinance, or other applicable law in order to accomplish the modifications National is required to make under this Consent Order.  If a city or other applicable state or local authority does not provide the permits or authorizations in a timely manner, and such delay impacts National’s ability to make any of the modifications set forth in the Consent Order within any of the time periods set forth herein, the applicable time period(s) for National to make any of the modification(s) at issue shall be automatically extended by the period of the delay.  National shall notify the Department of such delay and the reasons therefor.  If a city or other applicable state or local authority refuses to provide permits or authorizations needed to accomplish any modification required under this Consent Order, or conditions the issuance of any such permit or authorization on National’s making modifications in addition to those required by the Consent Order, National’s obligation to make the modification(s) will be suspended while National and DOJ meet in a good faith effort to agree on a comparable substitute modification(s) that shall not result in costs in excess of 15%, adjusted for inflation, over the contract cost of the changes contemplated by the modifications set forth in this Consent Order, and shall not result in seat loss in excess of 10% greater than that contemplated in this Consent Order.

4.     MODIFICATIONS TO EXISTING THEATRES

4.1     Appendix 2 references certain Existing Theatres and specifies certain modifications to specified auditoriums in those theatres.  National is required to make the specified modifications in the specified auditoriums.

4.2     National shall not be required to make any modifications relating to Requirements or to this Consent Order other than the modifications specified in Appendix 2 in any of the Existing Theatres; provided, however, that National must independently comply with Sections 3.1 to 3.3 of this Order.  (Stated in another way, Appendix 2 specifies modifications in particular Existing Theatres to particular auditoriums, and this agreement does not require modifications to any other auditoriums in those Existing Theatres, except to the extent required by Sections 3.1 to 3.3 of this Order; similarly, Appendix 2 does not list certain Existing Theatres, and this agreement does not require modifications to any of those unlisted Existing Theatres, except to the extent required by Sections 3.1 to 3.3 of this Order.)

4.3     None of the modifications made pursuant to this Consent Order shall trigger any other obligations under the ADA, subsidiary, ancillary, or otherwise, specifically including, but not limited to, those required under 28 C.F.R. § 36.403. 

4.4     Notice to Patrons

Appendix 2 specifies modifications to be made to particular auditoriums in particular complexes.  After completion of all specified modifications in a particular complex, National agrees to post a notice on its Internet site providing movie information for that complex, for a period of nine months, stating that, in certain auditoriums, National has made modifications intended to improve the viewing experience of patrons who use wheelchairs.

5.    STANDARDS FOR FUTURE CONSTRUCTION THEATRES

All Future Construction Theatres governed by Standard 4.33.3 and this Consent Order shall comply with the requirements set forth in Sections 5.1 to 5.4 below.

5.1     Unobstructed View of the Screen

Wheelchair spaces and their companion seats shall be located on a Riser or cross-aisle within the Stadium Section of an Auditorium that provides patrons in these seats with an Unobstructed view of the screen.

5.2     Integration of Wheelchair Spaces

Wheelchair spaces shall be integrated into their seat row and shall not be separated by any aisle or other break from the other seats in the same row.  Wheelchair spaces shall be on the same floor level as all other seats in the same row, including companion seats.

5.3     Relationship of Wheelchair and Companion Seating

Wheelchair spaces shall have at least one companion fixed seat adjacent to each wheelchair space (i.e. 1:1 ratio).  ADA-mandated wheelchair spaces and companion seats shall also be located on the same floor level as all other seats in the same row.

5.4     Location of Wheelchair Spaces and Companion Seating Within Stadium Section

National shall locate all ADA-mandated wheelchair spaces and companion seating in stadium-style Auditoriums in Future Construction Theatres according to the following criteria:

(a)     ADA-mandated wheelchair and companion seating areas shall be located within the Stadium Section of an Auditorium on a Riser; and

(1)     Within the area of an Auditorium in which vertical viewing angles (as measured to the top of the screen) for the wheelchair spaces are equivalent to, or less than, the average vertical viewing angle provided for other members of the general public seated in all fixed seating in the Auditorium; or

(2)     Within the rear 60% of the seats provided in an Auditorium; or

(3)    Within the area of an Auditorium in which the vertical viewing angles (as measured to the top of the screen) are from the 50th to the 100th percentile of vertical viewing angles for all seats as ranked from the seats in the first row (1st percentile) to seats in the back row (100th percentile); or

(4)     The design is submitted via overnight courier for review and approval by the Department.  The United States will respond to any such request within thirty (30) days of receipt of such plans, although the DOJ may request, in writing prior to the expiration of the thirty (30) day period, an extension of thirty (30) days. If National does not receive a response to its request at the end of the thirty day period, or at the end the sixty (60) day period if an extension is timely requested by the Department and transmitted to National by facsimile or express mail delivery, such plans will be deemed approved by the DOJ and National may proceed to build theatres according to the plans submitted to the United States.  If National declines to submit a proposed plan for a theatre complex that does not meet the conditions set forth in either subparagraph (1), (2), or (3), or if it chooses to build a theatre design rejected by the United States in this review process that does not meet the conditions set forth in either subparagraph (1), (2) or (3), that specific theatre design shall not be covered by the safe harbor provisions of this Consent Order, see Section 2.4, and if the Department believes that such design violates the wheelchair placement provisions of the ADA Standards, the Department may seek remedy in this Court to correct such non-conforming design.

5.5     Auditoriums in Future Construction Theatres built in conformity with the provisions of Sections 5.1 to 5.4 of this Order shall, for purposes of this Consent Order, be deemed by the Department to satisfy the Requirements and Applicable Provisions.

6.      NON-ADA-MANDATED WHEELCHAIR SPACES

Nothing in this Consent Order shall limit or govern in any way the placement and/or locations of any non-ADA-mandated wheelchair spaces.

7.     REQUIRED TIME FRAMES
FOR IMPLEMENTING THIS CONSENT ORDER                                                         

7.1     Modifications to Existing Theatres

Modifications to National’s Existing Theatres as required under Section 4 of this Consent Order shall be implemented within eighteen months of the Effective Date of this Order.

7.2     Future Construction

The requirements for Future Construction Theatres are effective immediately upon the Effective Date of this Consent Order.

8.    NOTICE, REPORTING, AND MONITORING REQUIREMENTS

8.1     Every six months for the first eighteen months of the Term of this Consent Order, or until National has completed making the modifications to its Existing Theatres required under Section 4 of this Consent Order, if later, National shall provide written notice to the Department identifying the Stadium-Style Theatre Complex location(s) at which modifications required by this Consent Order were performed, identifying any Future Construction Theatres, and identifying any Existing Theatre(s) sold or permanently closed by National during the relevant time period.  The written notice shall also include, when available, architectural drawings showing the modifications made to the theatres listed in Appendix 2 pursuant to this Consent Order during the prior six month period.

8.2     Throughout the Term of this Consent Order, the Department may, upon twenty (20) days notice to National, review compliance with this Consent Order by sending representatives to inspect any National stadium-style movie theatre complex, either existing or under construction, that is covered by this Consent Order.  Any such inspections shall be conducted:  (i) during non-show times no sooner than twenty (20) days after such notice and no later than thirty (30) days after such notice or as the parties may otherwise agree; and (ii) shall be limited to 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; and (c) satisfying applicable dispersion requirements under this Consent Order.  National shall have the right to have a corporate representative and National’s legal counsel present at any such inspection.  The Department shall inform National reasonably in advance of the inspection of the approximate number of persons who will be attending on its behalf.

8.3     The Department may otherwise review compliance with this Consent Order at any time.  If the Department believes that National is not in compliance with this Consent Order or any requirement contained herein, the Department agrees to notify National in writing of the alleged noncompliance and attempt to seek a reasonable resolution of the matter with National. National shall have sixty (60) days in which to respond to such written notice and provide objections or a schedule for correction of agreed upon deficiencies.  If the Parties are unable to reach a resolution within sixty (60) days after the Department has received National’s response, either party or both parties may seek appropriate relief from the Court.  The parties hereby agree to use their respective best efforts to resolve disputes regarding compliance or enforcement of this Order in a mutually agreeable fashion without resort to judicial resolution, and, therefore, presently anticipate that any such judicial dispute resolution mechanism will infrequently (if ever) occur during the Term of this Order.  Failure by either party to seek enforcement of or compliance with this entire Consent Order, or any provision thereof, with regard to any deadline or any other provision herein, shall not be construed as a waiver of that party’s right to do so with regard to other deadlines and provisions of this Consent Order.  In the event of noncompliance with this Consent Order, the Court may order compliance with the Order as to the relevant auditoriums and/or complex (or other aspect of the Order), but such noncompliance shall not affect in any way the terms of this Consent Order or their continuing validity and enforceability; among other things, no party shall ask the Court to dissolve this Consent Order or alter in any way any of its terms, as a remedy for noncompliance with its terms.

8.4     All notices, correspondences and reports required or provided for by this Consent Order shall be sent by overnight courier to the parties at the following addresses or to such other person as the parties may designate in writing in the future:

For notices to the Department of Justice:

John L. Wodatch, Chief
Disability Rights Section
Civil Rights Division
United States Department of Justice
1425 NY Ave Bldg. – Rm. 4039
950 Pennsylvania Avenue, NW
Washington, DC 20530

Michael J. Pineault
Eugenia M. Carris
Mark T. Quinlivan
Assistant United States Attorneys
U.S. Attorney’s Office
U.S. Courthouse
One Courthouse Way – Suite 9200
Boston, MA  02210

For notices to National Amusements, Inc:

Tad Jankowski
General Counsel
National Amusements, Inc.200 Elm Street
P.O. Box 9126
Dedham, MA 02027

James R. Carroll
David S. Clancy
Skadden, Arps, Slate, Meagher & Flom
One Beacon Street - 31st Floor
Boston, MA 02108

9.    MISCELLANEOUS

9.1     Entire Consent Order

This Consent Order and the letter from Michael J. Pineault to James R. Carroll dated January 6, 2006 regarding Showcase Randolph 16 - auditoriums 1, 8, 9 and 16 and Multiplex Cinemas Farmingdale - auditoriums 5, 10, and 14, which is incorporated herein by reference, constitute the entire agreement between the parties on the matters raised herein, and no other statement, promise, or agreement, either written or oral, made by any of the parties or agents of any of the parties, that is not contained in this Consent Order or incorporated herein by reference, shall be enforceable regarding the matters raised herein.

9.2     Public Document

This Consent Order is a public document. A copy of this document, and any information contained herein, may be made available to any person.

9.3     Consent Order Binding on Parties and Successors in Interest

This Consent Order is binding on the United States, National, and any successors in interest. National has a duty to so notify all its successors in interest of the existence and terms of this Consent Order.

9.4     Other Companies Or Claimants

Except as provided by Section 9.3 above, the terms of this Consent Order shall not apply to any movie theatre company or circuit other than National.  Except as provided by Section 9.3 above, no person or entity other than the United States or National shall have standing to enforce this Consent Order or any of its provisions.

9.5     Term of the Consent Order

(a)     This Consent Order shall be in full force and effect for a period of five (5) years after the Effective Date of this Consent Order (the “Term”).

(b)     At any time after the fourth (4th) year of the initial Term, National shall have the right to request that the DOJ consent to renew this Consent Order for an additional five (5) year term, which consent shall not be unreasonably withheld or delayed.  If the DOJ has withheld its consent or has not responded to such a request within sixty (60) days, National may apply to the Court for an order extending this Consent Order for an additional five (5) year term.  Provided National is not materially noncompliant with its obligations under this Consent Order, the DOJ shall not oppose any such application.

(c)     Regardless of whether the Term is renewed, the DOJ shall at no time during or after the Term repudiate, or take any position inconsistent with, any of the positions it has taken in this Consent Order with regard to any National Theatre, including without limitation its acknowledgment that theatre complexes that comply with this Consent Order satisfy all Requirements and comply with all Applicable Provisions.

(d)     The Court shall retain jurisdiction of this action to enforce provisions of this Consent Order during the five-year Term and any renewal Term.

9.6     Severability

If any nonmaterial term of this Consent Order is determined by any court to be unenforceable, the other terms of this Consent Order shall nonetheless remain in full force and effect, unless it is determined that the provisions deemed unenforceable consist of material provisions which amounted to the original consideration for the adversely affected party in entering into this Consent Order.

9.7     Signatories Bind Parties

Signatories on behalf of the parties represent that they are authorized to bind the parties to this Consent Order.

9.8     Force Majeure

Whenever a day is appointed herein on which, or a period of time is appointed within which, either party is required to do or complete any act, matter, or thing, the time for doing or completion thereof shall be extended by a period of time equal to the number of days on or during which either party is prevented from, or is unreasonably interfered with, the doing or completion of such act, matter, or thing as a result of strikes, lock-outs, embargoes, unavailability of labor or materials, wars, insurrections, rebellions, declarations of national emergencies, acts of God, or other causes beyond the reasonable control of the party.  Financial inability to satisfy the terms of the agreement is not included within this exception.

9.9     Other

Without limitation as to other such theatres, National's Stadium-style movie theatre complex Connecticut Post 14 in Milford, Connecticut does not fall into the definition herein of "Existing Theatre" or of "Future Construction Theatre"; it is not encompassed by this Consent Order, and this Consent Order does not impose any obligations on nor provide any releases to any party with respect to that complex. 



COUNSEL FOR PLAINTIFF UNITED STATES:

Dated:     1/06/06     By: ____________________________
MICHAEL J. SULLIVAN
United States Attorney



_________________________________
MICHAEL J. PINEAULT
EUGENIA M. CARRIS
MARK T. QUINLIVAN
Assistant United States Attorneys
One Courthouse Way – Suite 9200
Boston, MA  02210
(617) 748-3100

________________________________
WAN J. KIM,Assistant Attorney General
JOHN L.WODATCH, Chief
RENEE M. WOHLENHAUS, Deputy Chief
Civil Rights Division
Disability Rights Section
950 Pennsylvania Avenue, NW
Washington, D.C. 20530(202) 514-9584


Counsel for Plaintiff United States of America





FOR DEFENDANT NATIONAL AMUSEMENTS, INC.:

Dated: ________________ By: ____________________________
JAMES R. CARROLL (BBO# 554426)
DAVID S. CLANCY (BBO# 636031)
Skadden, Arps, Slate, Meagher & Flom LL
One Beacon Street
Boston, MA 02108
(617) 573-4800
jcarroll@skadden.com
dclancy@skadden.com



Pursuant to stipulation, and for good case shown, IT IS SO ORDERED.


Dated: January 9, 2006 /s/ William G. Young
Hon. WILLIAM G. YOUNG
United States District Court
for the District of Massachusetts



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Appendix 1

Modifications to Existing Theaters



The Bridge: Cinema de Lux
6081 Center Drive
Los Angeles, CA 90045

Showcase Cinemas Revere
565 Squire Road
Revere, MA 021 51
Multiplex Cinemas College Point
28 Ulmer Street College Point Corporate Park
Whitestone, NY 11357
Showcase Cinemas Berlin
19 Frontage Road
Kensington, CT 06037
Showcase Cinemas Seekonk 1-10
800 Fall River Avenue
Seekonk, MA 02771
Farmingdale Multiplex Cinemas
1001 Broad Hollow Road
Farmingdale, NY 1 1735
Showcase Cinemas East Windsor
171 Bridge Street
PO Box 997
East Windsor, CT 06088
Showcase Cinemas Seekonk
Route 6 100 Commerce Way
Seekonk, MA 02771
Greenburgh Multiplex Cinemas
320 Saw Mill River Road
Greenburgh, NY 10523
Showcase Cinemas Buckland Hills
99 Redstone Road
Manchester, CT 06040
Showcase Cinemas Easffield Mall
1655 Boston Road - Route 20
Springfield, MA 01 129
Showcase Cinemas Huber Heights
7737 Wayne Town Boulevard
Huber Heights, OH 45424
Showcase Cinemas North Haven
550 Universal Drive
North Haven, CT 06473
Showcase Cinemas
West Springfield 1-1 5
864 Riverdale Street West
Springfield, MA 01 089
Maurnee 18: Cinema de Lux
1360 Conant Street Route 20
Maumee, OH 43537
Showcase Cinemas 53
3601 East 53' Street
Davenport, IA 52807
Showcase Cinemas Worcester North
135 Brooks Street
Worcester, MA 01 606

Showcase Cinemas Dayton South
195 Mall Woods Drive
West Carrollton, OH 45449

Showcase Cinemas Stonybrook
2745 South Hurstbourne Parkway
Louisville, KY 40220
Showcase Cinemas Ann Arbor
4100 Carpenter Road
Ypsilanti, MI 48197
Showcase Cinemas Milford 16
500 Rivers Edge Drive
Milford, OH 45150
Showcase Cinemas Lawrence 7-14
6 Chickering Street
Lawrence, MA 01 843
Courtland Center Cinemas
4226 East Court Street
Burton, MI 48509
Springdale 18: Cinema de Lux
12064 Springfield Pike
Springdale, OH 45246
Showcase Cinemas Lawrence 1-6
141 Winthrop Avenue
Lawrence, MA 01 843
Showcase Cinemas Flint West
1591 South Graham Road
Flint, MI 48532
Showcase Cinemas Warwick
1200 Quaker Lane
Warwick, RI 02886
Showcase Cinemas Lowell
32 Reiss Avenue
Lowell, MA 01 853
Edgewater Multiplex Cinemas
339 River Road
Edgewater, NJ 07020
Showcase Cinemas Warwick Mall
400 Bald Hill Road
Warwick, RI 02886
Showcase Cinemas Randolph
73 Maueo Drive
Randolph,MA 02368
Linden Boulevard Multiplex Cinemas
2784 Linden Boulevard
Brooklyn, NY 11208
Enfield Cinemas 12 Wesffield
Shoppingtown Enfield
90 Elm Street
Enfield, CT 06082

Providence Place Cinemas 16
10 Providence Place
Providence Place Mall
Providence, RI 02903

Return to Agreement

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Appendix 2

Modifications to Existing Theaters



Complex Name

Auditorium(s)

Retrofits
Showcase Maumee 18 2,17 Center wheelchair ("WC") positions (laterally) within existing WC row to greatest extent practicable.
Showcase Springdale 2,17 Center WC positions (laterally) within existing WC row to greatest extent practicable.
Showcase Springdale 7,12 Center WC positions (laterally) within existing WC row to greatest extent practicable.
Davenport 18 9,10 Center WC positions (laterally) within existing WC row to greatest extent practicable.
Showcase Maumee 18 9,10 Move WC positions from front of cross-aisle to back of cross-aisle (adjoining existing row 5) and center those WC positions (laterally) to greatest extent practicable; add companion seat next to WC position in rear of auditorium that does not currently have one.
Showcase Springdale 9,10 Move WC positions from front of cross-aisle to back of cross-aisle (adjoining existing row 4) and center those WC positions (laterally) to greatest extent practicable; add companion seat next to WC position in rear of auditorium that does not currently have one.
Davenport 18 2,4,5,14,15,17 In 3 of these 6 auditoriums, chosen at National's discretion, raise row 3 onto new 7" riser adjoining existing row 4; center WC positions (laterally) on that new riser to greatest extent practicable.
Multiplex Cinemas - Brooklyn 5,6,9,10 In 2 of these 4 auditoriums, chosen at National's discretion, move the ADA- mandated wheelchair and companion seats to back of new 7" riser adjoining existing row 4; center WC positions (laterally) on that new riser to greatest extent practicable.
Showcase Lowell 14 3-12 In 5 of these 10 auditoriums, chosen at National's discretion, raise row 3 onto new 7" riser adjoining existing row 4; center WC positions (laterally) on that new riser to greatest extent practicable.
Showcase Randolph 16 1,8,9,16 In 2 of these 4 auditoriums, chosen at National's discretion, move WC positions to back of existing first riser (row 4) and center WC positions (laterally) on riser to greatest extent practicable.
Showcase Randolph 16 2,7,10,15 In 2 of these 4 auditoriums, chosen at National's discretion, raise row 3 onto new 7" riser adjoining existing row 4; center WC positions (laterally) on that new riser to greatest extent practicable.
Showcase Seekonk Rte 6 2-9 In 4 of these 8 auditoriums, chosen at National's discretion, raise row 3 onto new 7" riser adjoining existing row 4; center WC positions (laterally) on that new riser to greatest extent practicable.
Multiplex Cinemas - Brooklyn 2,13 In 1 of these 2 auditoriums, chosen at National's discretion, move the ADA- mandated wheelchair and companion seats to back of new 7" riser adjoining existing row 5; center WC positions (laterally) on that new riser to greatest extent practicable.
Showcase Maumee 18 1,18 In 1 of these 2 auditoriums, chosen at National's discretion, move WC positions to back of new 10" riser (6" added to existing 4" riser) adjoining existing row 4; center WC positions (laterally) within existing WC row to greatest extent practicable.
Showcase Maumee 18 4,5,7,12,14,15 In 3 of these 6 auditoriums, chosen at National's discretion, move WC positions to back of new 10" riser (6" added to existing 4" riser) adjoining existing row 4; center WC positions (laterally) within existing WC row to greatest extent practicable.
Showcase Springdale 4,5,14,15 In 2 of these 4 auditoriums, chosen at National's discretion, move WC positions to back of new 7" riser adjoining existing row 4; center WC positions (laterally) on that new riser to greatest extent practicable.
Showcase Courtland Ctr. 3,6 Move WC positions to back of existing first 7" riser (row 5); center WC positions (laterally) on that riser to greatest extent practicable.
Showcase Courtland Ctr. 4,5 Move WC positions to back of existing first 7" riser (row 5); center WC positions (laterally) on that riser to greatest extent practicable.
Showcase Lowell 14 2,13 Move WC positions to back of new 7" riser adjoining exisiting row 5; center WC positions (laterally) on that riser to greatest extent practicable.
Showcase Seekonk 1-10 9,10 Move WC positions to back of existing first riser (row 5); center WC positions (laterally) on that riser to greatest extent practicable.
Multiplex Cinemas - Brooklyn 4,7,8,11 In 2 of these 4 auditoriums, chosen at National's discretion, move the ADA-mandated wheelchair and companion seats to back of existing first riser (row 4); center WC positions (laterally) on that riser to greatest extent practicable.  In the remaining 2 auditoriums, move the ADA-mandated wheelchair and companion seats to back of new 7" riser adjoining existing row 4; center WC positions (laterally) on that new 7" riser to greatest extent practicable.
Multiplex Cinemas - Brooklyn 3, 12 Move the ADA-mandated wheelchair and companion seats from front of cross-aisle to back of cross-aisle (adjoining existing row 4) and center those WC positions (laterally) to greatest extent practicable. 
Multiplex Cinemas - Farmingdale 5, 10, 14 Move the ADA-mandated wheelchair and companion seats to back of existing first riser (row 5) and center WC positions (laterally) on that riser to the greatest extent practicable.  
   1, 3, 7, 8 Move the ADA-mandated wheelchair and companion seats to back of existing first riser (row 4); center WC positions (laterally) on that riser to greatest extent practicable.       
   6, 9, 12 Move the ADA-mandated wheelchair and companion seats to new 7" riser adjoining existing row 4; center WC positions (laterally) on that new riser to greatest extent practicable.

Return to Agreement



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February 16, 2006