932 F.3d 1165
8th Cir.2019Background
- The Fabulous Fox Theater (Fox), a 4,500-seat public accommodation in St. Louis, provides a venue for traveling Broadway shows that do not rehearse at the Fox.
- Maria Childress (late-deafened) requested open captioning for a Rent performance; Fox initially offered only ASL interpretation and later implemented a policy of one prescheduled captioned performance per production (Saturday matinee) after suit was filed.
- Fox purchased handheld tablet devices and used live court reporters to generate real-time closed captions; device mounts that hold tablets are limited to wheelchair-accessible seats for safety reasons.
- Childress, ALDA, Mary Stodden, and HLAA sued under Title III of the ADA seeking captions at requested performances (with two weeks’ notice), publicity, and non-telephonic ticketing; Fox later provided some captioning and publicity but reserved the right to limit additional captioned shows.
- District court granted summary judgment to plaintiffs under the ADA's auxiliary-aids requirement, ordering Fox to provide captioning whenever requested two weeks in advance; it also awarded attorney’s fees (~$97,920) using the lodestar method with limited adjustments.
- On appeal, Fox argued it had provided meaningful access (one captioned performance per run) and that providing captions at every requested performance would be unduly burdensome; Fox also challenged the fee award.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Fox denies meaningful access by offering only one captioned performance per production | Childress: requiring captioning only at a single prescheduled showing denies deaf patrons equal opportunity to the same range of dates/times | Fox: offering one captioned performance plus ad-hoc accommodations equals meaningful access; it has never denied a request | Court: one-caption policy denies meaningful access because it limits choices compared to hearing patrons |
| Whether Fox waived the undue-burden defense | Plaintiffs: Fox explicitly declined to assert undue burden in district court, so it waived the defense | Fox: undue burden is relevant and should have been considered on appeal given cost concerns | Court: Fox waived undue-burden defense by not asserting it below and cannot raise it on appeal |
| Scope of the remedy (injunctive relief requiring captioning upon two-weeks' notice) | Plaintiffs: requested captions at any performance with two-weeks' notice and publicity/ticketing changes | Fox: had already implemented many requested changes; relief should be limited or moot | Court: awarded requested injunctive relief; refusal to reduce remedy was within discretion because plaintiffs obtained substantial relief |
| Reasonableness of attorney’s fees (rate, hours, and billing entries) | Plaintiffs: counsel sought $450/hr and claimed hours; reconstruction of some entries appropriate | Fox: rate is excessive, reconstructed entries and clerical billing should be excluded, and fees should be curtailed for partial success | Court: upheld $450/hr as reasonable absent contrary market evidence; reduced fees slightly for noncompensable entries but did not otherwise abuse discretion |
Key Cases Cited
- Argenyi v. Creighton Univ., 703 F.3d 441 (8th Cir.) (meaningful access test for auxiliary aids requires equal opportunity to gain same benefit)
- Hensley v. Eckerhart, 461 U.S. 424 (1983) (lodestar method and exclusion of hours not reasonably expended)
- Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542 (2010) (guidance on reasonable hourly rates in fee awards)
- Warner Bros. Entm't, Inc. v. X One X Prods., 840 F.3d 971 (8th Cir.) (failure to raise affirmative defense below results in waiver)
- MacDissi v. Valmont Indus., Inc., 856 F.2d 1054 (8th Cir.) (reconstructed time entries can support fee awards if satisfactorily documented)
- Banks v. Slay, 875 F.3d 876 (8th Cir.) (district court familiarity with local market rates for fee determinations)
- Loye v. County of Dakota, 625 F.3d 494 (8th Cir.) (auxiliary aids need not produce identical results but must afford equal opportunity)
- McGann v. Cinemark USA, Inc., 873 F.3d 218 (3rd Cir.) (exclusion from range of choices can show denial of meaningful access)