Court Certifies Class of Hearing-Impaired Patrons to Sue Arena over Captioning

Dec 8, 2017

A federal judge from the District of Colorado has certified a class of hearing-impaired people, who allege that Kroenke Arena Company, LLC, the owner and operator of the Pepsi Center – an indoor arena in Denver, discriminates against patrons in violation of Title III of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12181 et seq.
The lead plaintiff in the case is Kirstin Kurlander, who is deaf. The Pepsi Center was constructed in the late 1990s, and opened on Oct. 1, 1999. It seats approximately 17,000 to 21,000 people, depending on the event and configuration. The Pepsi Center is home to the National Hockey League’s Colorado Avalanche, the National Basketball Association’s Denver Nuggets, and the National Lacrosse League’s Colorado Mammoth, and is also the venue of a number of concerts and other events totaling approximately 200 events each year.
In 2013, it installed a new center-hung display at the Pepsi Center. Many of the events at the Pepsi Center include both visual and aural content. For example, during a Colorado Avalanche ice hockey game, Pepsi Center patrons will not only be able to watch the players on the ice, they will hear the announcer introducing the players at the beginning of the game, telling them what penalties have been assessed during the game on which players, and announcing which player scored and which assisted following a goal. Similarly, Denver Nuggets fans will hear players being announced at the beginning of the game and when they enter and leave the game, fouls assessed against players and a running count of those fouls, and which players scored field goals and for how many points. Both hockey and basketball fans will also hear a good deal of non-game-related information at the Pepsi Center, for example, the presentation of the color guard and the national anthem, other songs (with lyrics), player interviews, contests, and promotions.
While the displays do continuously provide text and game- and player-related information such as game scores, player names, numbers and statistics, team statistics, game time and time remaining, and, from time to time, key words used for crowd pumpers or promotions, the displays do not open caption aural content broadcast over the public-address system. Captioning, however, is provided on the suite television monitors at the Pepsi Center.
Kurlander attends a variety of events at the Pepsi Center. When attending events at the Pepsi Center, she is unable to hear any aural content, including game information, announcements, music, and promotions.
Th court next turned to Title III of the ADA, which prohibits owners and operators of places of public accommodation, such as the Pepsi Center, from discriminating on the basis of disability in the full and equal enjoyment of its goods, services, facilities, privileges, advantages, or accommodations. 42 U.S.C. § 12182(a). Such places are prohibited from affording people with disabilities “the opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or accommodation that is not equal to that afforded to other individuals,” id. § 12182(b)(1)(A)(ii), and are required to provide “auxiliary aids and services” “as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals,” id. § 12182(b)(2)(A)(iii), and to ensure “effective communication” with individuals with disabilities, 28 U.S.C. § 36.303(c)(1).
The plaintiff alleges that she is entitled to the “full and equal enjoyment” of the Pepsi Center, which includes all of the aural information provided over the public-address system during events, effective communication for those who cannot hear. She further argues that, without captioning of Display Events, deaf Pepsi Center patrons are provided services, privileges, advantages and accommodations that are not equal to those afforded hearing patrons, and are thus treated differently, in violation of §§ 12182(b)(1)(A)(ii) and 12182(b)(2)(A)(iii).
Turning to the question of class certification, the court noted that it does not evaluate the underlying merits of the claim, but whether the plaintiff has met the requirements of Federal Rule of Civil Procedure 23 to certify the class.
The defendants presented their argument as one of the plaintiff not having the requisite standing. But the actual argument was something different.
The defendant claimed that because the plaintiff is able to communicate through sign language and has utilized sign language services provided by the defendant, and because the defendant provides closed captioning on hand-held devices, that the plaintiff has failed to establish any injury. The defendant further argued that plaintiff does not have a legally-protected interest in receiving open captioning because Title III of the ADA does not mandate a particular form of auxiliary aids. See, e.g., 28 C.F.R. § 36.303(c).
“Thus, the defendant’s position is that it does provide appropriate auxiliary aids and services in accordance with Title III of the ADA including captioning but just not captioning in the form the plaintiff desires,” wrote the court. “As such, the defendant asserts that the plaintiff has conflated the requested remedy with the alleged injury.”
The plaintiff countered that the defendant’s argument “improperly imports the merits into the standing analysis, and I agree. See, e.g., WildEarth Guardians v. U.S. Envt’l Protection Agency, 759 F.3d 1196, 1207 (10th Cir. 2014). I find that the plaintiff has standing because her injury is the lack of open captioning of aural content at Display Events, which the defendant does not provide, and if she prevails in this case and the defendant is required to provide open captioning of aural content at Display Events, her injury will be redressed. Thus, I find that the plaintiff has standing to pursue this claim.”
The court went on to find that the plaintiff had met the following prerequisites for class certification:
(1) Numerosity: “the class is so numerous that joinder of all members is impracticable”;
(2) Commonality: “there are questions of law or fact that are common to the class”;
(3) Typicality: “the claims or defenses of the representative parties are typical of the claims or defenses of the class”; and
(4) Adequacy of representation: “the representative parties will fairly and adequately represent the interests of the class.”
Fed. R. Civ. P. 23(a)
Kirstin Kurlander, on behalf of herself and others similarly situated v. Kroenke Arena Company, LLC; D. Colo.; Civil Action No. 16-cv-02754-WYD-NYW, 2017 U.S. Dist. LEXIS 195438; 8/31/17


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